The 17th Amendment revisited
By Thomas E. Brewton
web posted July 5, 2010
Original provisions of the Constitution intended to prevent Congress from enacting "dumb" laws were vitiated by ratification of the 17th Amendment.
Before ratification of the 17th Amendment it's unlikely that a Senate committee would have needed to raise the sort of question posed by Senator Coburn during confirmation hearings on Elena Kagan's nomination to the Supreme Court. A Wall Street Journal editorial reports:
If Congress passed a law saying Americans were required to eat three fruits and three vegetables a day, Mr. Coburn asked, would that be legitimate under the Commerce Clause? It sounds like a "dumb law," Ms. Kagan wisecracked, which is true enough, but then she added that "courts would be wrong to strike down laws that they think are senseless just because they're senseless." In other words: Congress could do it.
The real question here is whether Ms. Kagan recognizes any limits on the Commerce Clause, which legislators have used as justification to regulate or mandate just about anything, and which the Obama Administration is eyeing as its golden ticket to defend ObamaCare. Some 20 states are challenging the law on the grounds that forcing people to buy health insurance shreds the Constitution.
... Ms. Kagan maintained that in recent years the Commerce Clause has been read broadly, to suggest "that deference should be provided to Congress with respect to matters that affect interstate commerce" and that "the principal protector against bad laws is the political branches themselves.
That one would have made James Madison howl.
I must disagree, however, with the Journal's understanding. Abundant evidence from James Madison's notes on the 1787 Constitutional Convention debates, as well as from the Federalist Papers and correspondence and speeches by prominent political leaders of the founding era, make clear that the Senate's role was to prevent Congress from passing laws that infringed upon powers traditionally reserved to state governments.
Delegates to the Constitutional Convention explicitly recognized that the broad language of a constitution cannot prescribe limits upon Congressional legislative power for every one of the myriad occasions in which regulatory questions can arise. Such questions, the delegates noted, are political in nature, not judicial issues. Ms. Kagan is correct that the courts have no constitutional authority to reject Congressional enactments solely because judges regard them as "dumb." Deference to Congress in such matters is a position of proper judicial restraint.
The Senate was intended to be the bulwark against unwise political actions that infringed upon the rights and powers reserved to the states and to the people by the 9th and 10th Amendments of the Bill of Rights. Because Senators were originally elected by their state legislatures, they had to be attendant to the wishes of the individual states and could not, as now under the 17th Amendment, respond primarily to pressure from national political parties to conform to the dictates of special interest groups such as public employees labor unions or "green" fanatics.
Ratification of the 17th Amendment thrust upon the Supreme Court the burden of attempting to play the role originally intended for the Senate, a role that the courts simply cannot fulfill. Since 1913 the Supreme Court has twisted and turned, seeking constitutional justifications, however indirect, to impose restraints upon egregiously damaging and unwise legislative action. It should not have to assume that role. Without the 17th Amendment, Federal courts would not be the centers of bitter political fights, litmus tests, and poisonous confirmation hearings that destroy reputations and careers.
The 17th Amendment, ratified in 1913, was one of many initiatives championed by liberal-progressives to facilitate transformation of the Federal government from one limited by constitutional constraints into one with almost unlimited powers to impose new sociological standards. It was a key piece in the push to neuter states' rights and to collectivize power at the Federal level.
The commerce clause of the Constitution has been stretched since 1913 to confer upon Congress the power to regulate any action or event anywhere in the universe on the grounds that it might, however indirectly, affect interstate commerce. The birth of every new baby, for example, indirectly affects interstate commerce, because the parents will need to buy food, clothing, and other items. Some of such items will surely have been manufactured, warehoused, or shipped from states other than that of the baby's residence, bringing the birth of a child within the purview of the commerce clause. There is thus theoretically no constitutional limitation upon Federal power to regulate the number of children a family is permitted to have.
It is noteworthy that very few issues of judicial activism arose prior to ratification of the 17th Amendment, because the Senate generally did its job, which was preventing passage of power-grabbing legislation. It is also noteworthy that growth of the Federal bureaucracy accelerated only after the 17th Amendment. 
Thomas E. Brewton is a staff writer for the New Media Alliance, Inc. The New Media Alliance is a non-profit (501c3) national coalition of writers, journalists and grass-roots media outlets. His weblog is The View from 1776Z. Email comments to viewfrom1776@thomasbrewton.com.