libertarians: should us senators be elected by the people?

[Emsworth]

No, Senate representation was originally conceived to represent the interests of the states in the federal government, and it is no coincidence that the scope of federal government increased since US Senators started being elected directly.

Excessive federal intervention occurred during Reconstruction, the Gilded Age, and the so-called Progressive Era, even though the states chose their senators. I would attribute the increase of federal power to the Civil War, rather than the Seventeenth Amendment; the centralizing trend, in other words, was pre-existing.

As to the question: Senators should be chosen by the people. Election by state legislatures led to significant problems; for instance, when the upper and lower houses could not agree on a candidate, the state went unrepresented in the Senate until a compromise could be reached (which could be several years after the vacancy occurred!).

[Emsworth]

okay, let me get this straight...libertarians constantly talk about personal freedom and liberty.  shouldnt people have freedom to directly elect their senators?

(Forgive me for generalizing in this post; I obviously agree that there are several exceptions, but what I say probably applies to the "average" libertarian.)

I don't think that libertarians would include the right to vote under freedom and liberty. The libertarian view is that each person should control his own life to the greatest extent possible, without interfering with the rights of others. Voting, however, entails more than controlling one's own life. When one votes, one indirectly influences the rules and regulations that will control the lives of other people as well. Hence, voting is not necessarily a basic freedom or liberty.

That is not to say that libertarians normally oppose allowing people to vote. Voting and democracy are still considered important, not because they are worthwhile in and of themselves, but because the alternatives are deemed to be worse. In other words, the right to vote is not viewed as an end that is in and of itself important; rather, it is simply a means to an end of a freer society. Any particular restrictions on voting that improve the probability of attaining that end are acceptable; restrictions that do the reverse are not.

The question, therefore, is whether a freer society would result from allowing state legislatures to elect their own senators, or from granting that power to the people themselves. I personally think that the marginal benefit of granting such authority to the legislature is outweighed by the attendant problems and inconveniences, but evidently other libertarians disagree.

Direct election of senators is another attack on state's rights.

What precisely is a state? Geographically, it is a piece of land, but politically, it is something else--it is a group of people. To somehow differentiate between the state and the people that comprise it is, to my mind, fallacious, at least in the present context.

[Emsworth]

But the worst constitutional amendment on the books is the 16th which created the income tax.

The Sixteenth Amendment had no effect whatsoever, except to clarify what was already implicitly provided in the original Constitution: income taxes are permissible.

[Emsworth]

The entire premise of libertarianism rests on the Constitution, because it provides the basis for what the government should do.

I could not disagree more strongly. The entire premise of libertarianism is, as the name suggests, liberty. If a particular part of the Constitution is harmful to personal liberty, then of course a libertarian would oppose it. What you describe is closer to the premise of the Constitution Party.

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I don't think that the original poster was wondering whether state legislatures should take it upon themselves to start electing senators. The whole point of this debate is to determine whether the Seventeenth Amendment was a good idea. To say that the Seventeenth Amendment is a good idea simply because it has been passed is fallacious.

[Emsworth]

Constitutional amendments are difficult to pass. Why would government do something so difficult if it was not necessary?

The establishment clause of the First Amendment does not add anything to the Constitution, for the federal government never had the power to establish a religion in the first place. To an even greater extent, the Ninth and Tenth Amendments were utterly redundant, yet they were adopted. Nor is there any new content in the citizenship clause of the Fourteenth Amendment. Nevertheless, in all of these cases, amendments were added to make explicit what was previously merely implied.

The Sixteenth Amendment was adopted because the Supreme Court (wrongly) determined that the income tax was a "direct tax," and therefore subject to the apportionment requirement contained in Article I, in Pollock v. Farmer's Loan and Trust Co. (1895). To overrule this incorrect determination, Congress passed the Sixteenth Amendment. The Court itself later admitted its error:

"[T]he Sixteenth Amendment conferred no new power of taxation but simply prohibited ... income taxation ... from being taken out of the category of indirect taxation to which it inherently belonged." Stanton v. Baltic Mining Co. (1916).

[Emsworth]

The term "indirect taxation" is not found anywhere in the constitution. In my opinion it was a fiction created by 19th century statists who weren't satisfied with the amount of revenue they were able to get through constitutional means.

The term "direct tax" appears twice in the original document: once in Art. I, Sec. 2, and once in Art. I, Sec. 9. Both of these clauses impose a special rule on direct taxation: the amount paid by each state should be proportional to its population. No such rule, however, was imposed on other taxes, which we call "indirect taxes" for convenience.

There is more than one reference to the distinction between direct and indirect taxes in the Federalist Papers. In Federalist No. 36, for example, Hamilton writes: "The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind" (emphasis in original).

There was also a Supreme Court case about whether a particular tax (a tax on carriages, to be precise) was direct, and therefore subject to the appropriation rule, or indirect, and therefore not subject to any such requirement. (Hylton v. United States.)

The income tax was perfectly constitutional: the first century of constitutional jurisprudence provides numerous precedents in support of the idea. In Pollock, however, the Supreme Court vainly dismissed all of these precedents as a "century of error." The decision, however, was very plainly an activist one. Let us not forget that "conservative" judges are just as capable as "liberal" ones (if not more so) of making activist judgments.

[Emsworth]

The constitution provides for Direct taxes ( taxes paid to the federal govt by the states in proportion to their population). It also provides for duties, imposts and excises.  Duties and imposts are tariffs.
 Excise taxes according to the Law.com dictionary are defined as follows:
excise
n. a tax upon manufacture, sale or for a business license or charter, as distinguished from a tax on real property, income or estates. Sometimes it is redundantly called an excise tax.

As you can see they are not income taxes and are specifically distinguished from income taxes.

Two points:

Firstly, the Constitution (Art. I, Sec. 8, Cl. 1) authorizes Congress to, as Ernest pointed out, "lay and collect Taxes, Duties, Imposts and Excises." In this instance, the word "taxes" is not qualified by "direct"; therefore, income taxes are authorized.

Secondly, even if you disagree with the previous point, income taxes were considered "duties" at the time. In Great Britain during the eighteenth century, there existed a "duty ... consisting in a payment of 1 s. in the pound ... out of all salaries, fees, and perquisites, of offices and pensions." (Blackstone, Commentaries on the Laws of England, Bk. 1 Ch. 8).

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Obviously, it is shorthand for "tax that is not subject to the apportion requirement of Art. I, Sec. 2, Cl. 3."

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So James Madison and Alexander Hamilton are statists now?

[Emsworth]

But, the entire point of the Senate was to represent state's interests in Washington; the people already had representatives in the House.

I will ask again what I asked before: What is a state, if it is not the group of people living in a particular area? Why is it the case that the Senate represents a state's interests if it is chosen by the people of that state indirectly, but not if it is chosen by the people of that state directly?

COuld you imagine how chaotic the U.N. would be if we had countries' ambassadors directly elected instead of appointed by those countries' governments?

There is a significant difference. The United States Congress is a lawmaking body. The laws made by that Congress bind the people directly; they are not meant to regulate the activities of the state governments themselves. The United Nations, on the other hand, is not an organization that organization that governs any people whatsoever; its regulations and orders affect the governments directly.

[Emsworth]

Hamilton was a statist  and Madison argued against the carriage tax that was mentioned earlier.

The point is not whether the carriage tax specifically was or was not constitutional. The point is that the distinction between direct and indirect taxes was recognized even by James Madison. It was also recognized by a unanimous Supreme Court in Hylton v. United States; three of the judges who wrote opinions (Paterson, Iredell, Wilson) were at the Constitutional Convention. It was also recognized by Justice Joseph Story in his Commentaries on the Constitution of the United States ("[Taxes] are usually divided into two great classes, those, which are direct, and those, which are indirect." Vol. II Sec. 947).

Therefore, with all due respect, your claim that the distinction between direct and indirect taxes was invented by "19th century statists" is utterly absurd.

In fact, if there is no distinction, then why does the Constitution specifically use the words "direct tax" in the first place? Why not simply say that all taxes shall be subject to the appropriation rule? No, the fact that the Constitution makes a specific reference to the category of direct taxes clearly indicates that there also exists a category of indirect taxes. The only question is, is the income tax a direct tax or an indirect tax? There are certainly some arguments to suggest that the income tax is the former, but since none have actually been made in this thread, I don't see how I can respond to them.

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Just because X did not happen before the Civil War, it does not follow that X is unconstitutional. Perhaps you hold that spending money on an Air Force is unconstitutional as well?

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So what? I oppose the income tax quite strongly, but I certainly don't hold the highly suspect and entirely unsupported view that the income tax is or was ever unconstitutional.

[Emsworth]

I don't have a problem with distinguishing duties, imposts and excises from direct taxes. If you call them indirect as a way to distinguish them that's Ok. Its when you use that term to cover income taxes as well that you  are stretching the constitution.

Firstly, Art. I, Sec. 8, Cl. 1 does not distinguish duties, imposts, and excises from direct taxes. The clause reads, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises."

Secondly, I have already made an argument that the income tax is a "duty." As I said before, an income tax imposed in England prior to the American Revolution was called a "duty" in Blackstone's Commentaries, with which the Framers were indubitably familiar.

But, the entire point of the Senate was to represent state's interests in Washington; the people already had representatives in the House.

I will ask again what I asked before: What is a state, if it is not the group of people living in a particular area? Why is it the case that the Senate represents a state's interests if it is chosen by the people of that state indirectly, but not if it is chosen by the people of that state directly?

Okay, replace "state" with "state government".

If the Senate were a body responsible for coordinating or regulating the state governments themselves, then your argument would make sense. But why should the Senate represent state governments, when the chief purpose of the Senate is to participate in making laws that directly regulate the people?

[Emsworth]

Remember that the framers of the Constitution wanted seperation of powers. Hitler was very popular with the people, but that doesn't mean he was a good leader. There are two houses of Congress, of which the people already have a voice in one. To allow the people to have a voice in the other would be pure redundancy.

The argumentum ad hitlerum aside, you raise a very good point. I oppose "mob rule" just as much as you do. This is precisely why the Senate and the House of Representatives should not be chosen in the same manner. If the two are chosen differently, then proper checks and balances can arise, but if the two are chosen in the same way, then each house would tend to simply rubber stamp the other's decisions.

But as it stands, the Senate and the House are chosen differently. The Senate is chosen without any reference to the population at all. That, I feel, sufficiently differentiates it from the house to allow it to become an effective check.

It is possible (but doubtful) that further distinguishing the two houses by repealing the Seventeenth Amendment would improve this check even further. But remember that there are also costs associated. A filibuster or some other equivalent tactic might block the selection of a senator. Even if filibusters on senator selection are forbidden, it is possible that a bicameral state legislature might be unable to choose a candidate if the two houses are controlled by different parties. (Note that this will not necessarily "force a compromise" between the two parties.) There was a time when the state of Delaware went unrepresented in the Senate for four years due to such a deadlock. These significant costs outweigh any potential marginal benefit.

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After the Civil War, the Senate, even though chosen by the state legislatures, was very far from a guardian of states' "rights."

[Emsworth]

This would not affect Nebraska or South Carolina.  Nebraska because of its unicameral legislature.  South Carolina because assuming that they use the same procedure as is used for electing judges, the 124 member House and 46 member Senate would sit as one body, the 170 member General Assembly with the Lieutenant Governor presiding and breaking ties.

The South Carolina method would be, in my opinion, unconstitutional under the pre-Seventeenth Amendment system. When the constitution directed that senators should be chosen by the legislature, it did not mean that the electorate shall consist of members of the legislature. Rather, it meant that the senators should be chosen by the legislature in the true technical sense--with each house acting during the election as it normally acts, i.e., separately.

This view, however, is simply my opinion. A counterargument can and has been made that under Art. I, Sec. 4 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof"), state legislatures can choose the method you describe. Furthermore, a small minority of states actually used such a method prior to the Seventeenth Amendment, without being challenged.

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After the Civil War, the Senate, even though chosen by the state legislatures, was very far from a guardian of states' "rights."

Well the problem was that immediately after the Civil War the Southtern States were denied representation in that horrendous travesty known as reconstruction.

Not just immediately after the Civil War, but long after the war, even after Reconstruction ended, the Senate did little to protect federalism.