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Original deconstruction

Restoring the original political order to which many tea partyers seem to be drawn would require the repeal of more amendments than one.

October 21, 2010

A common theme among those in the "tea party" movement is that ordinary citizens ought to participate more in the business of government. Yet some tea party activists — and likeminded politicians and commentators — are espousing a return to the election of U.S. senators by state legislatures rather than the people. That would require repealing the 17th Amendment, which was ratified in 1913.

The "Repeal the 17th" campaign is rooted in a nostalgia for an era in which state governments exercised as much influence as the federal government — or more. As one advocate of repeal puts it: "If senators were again selected by state legislatures, the longevity of Senate careers would be tethered to their vigilant defense of their state's interest — rather than to the interest of Washington forces of influence."

Or to the interests of individual voters, of course. For states' rights is only one theme in the Repeal the 17th movement; the other is skepticism about popular democracy. Restoring the original political order to which many tea partyers seem to be drawn would require the repeal of more amendments than one.

For example, America was a different place before the adoption of the 14th Amendment, added after the Civil War. Like the 13th Amendment, which abolished slavery, and the 15th, which barred racial discrimination in voting, the 14th Amendment overrode what had once been seen as state prerogatives. It is best known for its definition of citizenship: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." But it also profoundly altered the relationship between the states and the federal government.

The 14th Amendment also says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And it gives Congress the power "to enforce, by appropriate legislation, the provisions of this article" (as it did in enacting civil rights legislation). If tea partyers want to restore the autonomy of the states, the 14th Amendment would have to go, along with the 17th.

Other amendments to the Constitution have expanded political participation, sometimes at the expense of state's rights. That was true not only of the 15th and 17th Amendments but also of the 19th, giving women the right to vote nationwide, and the 26th, granting 18-year-olds the franchise. The latter two amendments limited the states' ability to define qualifications for voting.

The Constitution is worthy of veneration, but many of its most admirable features didn't originate in the era of the three-cornered hats sported by some tea party activists. That includes the rights of the voters to choose — and remove — their senators.

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