Scalia Jumps On The Anti-Seventeenth Amendment Bandwagon

As I’ve mentioned in an earlier post, we have a real problem with Supreme Court Justices who have ignored the canons of Judicial “decor” and have become totally political while sitting on the Supreme Court Of The United States…

Think Progress

One of the most bizarre developments of the last several months is the growing right-wing calls to repeal the Seventeenth Amendment, the provision of the Constitution that empowers voters — as opposed to state legislatures — to elect their senators. On Friday, Supreme Court Justice Antonin Scalia joined Senator-elect Mike Lee (R-UT) and Gov. Rick Perry (R-TX) in opposing the century-old amendment:

Scalia called the writing of the Constitution “providential,” and the birth of political science.

“There’s very little that I would change,” he said. “I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously.”

That amendment allowed for U.S. Senators to be elected by the people, rather than by individual state legislatures.

“We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.“

Justice Scalia’s use of extremist “states’ rights” rhetoric is an ominous sign. Although Scalia has a well-deserved reputation as an ultra-conservative, his record on federal/state power issues is surprisingly sensible. Indeed, his concurring opinion in Gonzales v. Raich could have been written as a blueprint for why President Obama’s Affordable Care Act is constitutional.

It’s puzzling why Scalia, or anyone else for that matter, would suddenly take a swipe at this entirely uncontroversial amendment — although the Wonk Room offers one possible explanation. Before the Seventeenth Amendment was enacted, corporate interest groups were able to lean on state lawmakers and thus effectively buy U.S. Senate seats. In other words, repealing the Seventeenth Amendment “would be like Citizens United on steroids.”

Related Articles

• On the “True Story of the History of the Seventeenth Amendment and Federalism” (volokh.com)
• Repeal the Seventeenth Amendment (gunnyg.wordpress.com)
• Would Repeal of the 17th Amendment Help Limit Federal Power? (volokh.com)
• Devvy’s Alerts: Rebellion In America… (gunnyg.wordpress.com)
• Scalia Spars With Liberal Justice Over Death Penalty, Democratic Election (huffingtonpost.com)
• Scalia, Breyer bandy about how to decide cases (sfgate.com)