The Latest Chapter in the Constitution’s Progressive History?

Yesterday, Sen. Russ Feingold (D-WI) and Rep. John Conyers (D-MI) held a joint hearing on their proposed constitutional amendment that would require states to hold elections to fill Senate vacancies, and thus prevent governors like Rod Blagojevich from filling vacant seats. (A complete webcast of the hearing is available here.) If ratified, the proposal would become the 28th Amendment to the Constitution.

Of course, this proposed amendment hasn’t come without criticism. Last month, conservative columnist George Will strongly criticized Sen. Feingold for attempting to “nudge the Senate still further away from the nature and function the Framers favored.” Will was referring to the fact that the Constitution originally provided for Senators to be elected by state legislatures. This changed with the ratification of the 17th Amendment in 1913, which provides for direct popular election of U.S. Senators and has thus made the Senate more response to the people. Sen. Feingold says his proposed amendment aims to further this responsiveness.

By contrast, Will advocates repealing the 17th Amendment entirely and returning to a system in which state legislatures select the Senators, a system that, he claims, better “served the structure of federalism.”

Whatever one may think about the proposed 28th Amendment, Will’s proposal that we repeal the 17th Amendment is radical and wrong-headed. The 17th Amendment is one of several important Amendments passed after the Civil War that shifted power away from the states and to the federal government. As a result, the federalism we have now is one in which the federal government is empowered to address national problems, while states thrive as laboratories of democracy, often building off a federal floor.

The fact that nearly a century has passed since the 17th Amendment was ratified without any attempts to repeal it, and that we are now debating whether to amend the Constitution to further solidify the direct election of senators, would suggest that most Americans do not want to return to the old form of federalism – even if Will does.

Moreover, what Will and so many conservatives refuse to acknowledge is that the Framers wanted the Constitution to be amendable when the People found it to be lacking – including when they felt the balance of power between states and the federal government needed to be altered.

That is why yesterday’s hearing fits into a long tradition of Americans coming together to debate amending the Constitution when a revision might be considered necessary to make our governing document more suited to our collective values. Contrary to what critics like George Will might suggest, the process is a vivid illustration of the Framers’ vision of democracy in action, further demonstrating how the Constitution is fundamentally a progressive document.