Why Russ Feingold’s Proposal to Amend the 17th Amendment is a Good Idea (and Why George Will is Completely Wrong)

I understand that George Will is, despite his global warming lies and distortions, one of the smarter conservatives out there — I’ll leave that up to you to decide just how much of a compliment that is (remember: it’s all relative). I understand also that Will was against the McCain-Feingold restrictions on political finance and that he remains opposed to any such restrictions on political “speech.” But is it really the case, as Will remarks again on Sunday, in his WaPo column, that McCain-Feingold was an “evisceration of the First Amendment.” Is evisceration not a bit too strong a word? Last time I checked, the First Amendment is fine, all things considered, what with what Bush and Cheney did to it and all.

But Will’s column today isn’t about McCain-Feingold, it’s about Feingold’s proposed constitutional amendment, an amendment to the 17th Amendment that would require Senate vacancies to be filled by special election only, and not by temporary appointment of the governor. Given the situations in Illinois, where disgraced and soon-to-be outgoing Gov. Rod Blagojevich appointed the corrupt and egomaniacal Roland Burris to fill Obama’s seat, and New York, where, in this case, incompetent Gov. David Paterson flirted with Caroline Kennedy, appointed the quasi-Republican Kirsten Gillibrand to fill Hillary’s seat, and then unleashed a character assassination campaign against Kennedy, amending the 17th Amendment would seem to be a very good idea.

Not to Will, though, who calls Feingold’s proposal “more vandalism against the Constitution.” Really? Vandalism? Is that not also a bit too strong a word?

You can read Will’s argument in its entirety, if you like, but it essentially boils down to this: “Feingold proposes to traduce federalism and nudge the Senate still further away from the nature and function the Framers favored.” And what the Framers wanted was for the Senate, unlike the more populist House, to be “more deliberative than responsive.” Fair enough, but this is 2009, not 1789. Times have changed. And while I understand that Will and his federalist brethren would prefer for times not to change — and for the Constitution to remain forever as it was at the very beginning, the reality is that they have. And, last time I checked, the Constitution has been amended a number of times — 27 times, to be precise; or 17, if you prefer not to include the Bill of Rights. I can only presume that Will is against all of these amendments — including, say, the 13th, which abolished slavery, and the 17th itself, which provided for direction election to the Senate — so evisceratingly vandalistic were they.

Like it or not, the Senate is already somewhat other than what the Framers envisioned and designed. It is still more about deliberation than is the House, but senators are now elected directly by the people — in other words, it is more democratic than it once was, just like the country as a whole is, and, without taking anything away from the Framers, who understood that a healthy democracy needs to include certain non-democratic elements, if only for the sake of stability and depth (thankfully, for example, Supreme Court justices aren’t elected), there’s nothing wrong with enhancing the democratic quality of the Senate by replacing temporary appointments, which leave so much to self-interested governors and their partisan preferences, with special elections that would allow the people to determine who represents them even in so august a body as the U.S. Senate.

Will may not like it, and he will no doubt continue to fume, but we have reached a point in time — the times having changed — that a representative of the people (or even of a state) who has not been elected to serve simply lacks legitimacy. And that’s what Feingold’s amendment is all about: legitimacy. And at a time when democratic institutions around the world are undergoing a crisis of legitimacy, that is, when they are losing, or have already lost, the public trust, there’s nothing wrong with adding legitimacy where far too much of it is lacking.

(Cross-posted from The Reaction.)