Repeal the Seventeenth Amendment

Joe Miller, Alaska’s Republican nominee for the United States Senate, recently expressed support for an idea that is rapidly gaining steam in Tea Party circles: the repeal of the Seventeenth Amendment. Miller subsequently backtracked from his statement, but he shouldn’t have: Repealing the Seventeenth Amendment would go a long way toward restoring federalism and frustrating special-interest influence over Washington.

Ratified in 1913, the Seventeenth Amendment replaced the election of U.S. senators by state legislators with the current system of direct election by the people. By securing the Seventeenth Amendment’s ratification, progressives dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.

The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty. To this end, the Framers provided that the power of various political actors would derive from different sources. While House members were to be elected directly by the people, the president would be elected by the Electoral College. The people would have no direct influence on the selection of judges, who would be nominated by the president and confirmed by the Senate to serve for life or “during good behavior.” And senators would be elected by state legislatures.

Empowering state legislatures to elect senators was considered both good politics and good constitutional design. At the Constitutional Convention in Philadelphia, the proposal was ratified with minimal discussion and recognized as the approach “most congenial” to public opinion. Direct election was proposed by Pennsylvania’s James Wilson but defeated ten to one in a straw poll. More important than public opinion, however, was that limitations on direct popular sovereignty are an important aspect of a constitutional republic’s superiority to a direct democracy. As Madison observes in Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Election of senators by state legislatures was a cornerstone of two of the most important “auxiliary precautions”: federalism and the separation of powers. Absent some direct grant of federal influence to state governments, the latter would be in peril of being “swallowed up,” to use George Mason’s phrase. Even arch-centralizer Hamilton recognized that this institutional protection was necessary to safeguard state autonomy. In addition, the Senate was seen as a means of linking the state governments together with the federal one. Senators’ constituents would be state legislators rather than the people, and through their senators the states could influence federal legislation or even propose constitutional amendments under Article V of the Constitution.

The Seventeenth Amendment ended all that, bringing about the master-servant relationship between the federal and state governments that the original constitutional design sought to prevent. Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends — through such actions as “unfunded mandates,” laws requiring states to implement voter-registration policies that enable fraud (such as the “Motor Voter” law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions — would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.

There is no indication that the supporters of the Seventeenth Amendment understood that they were destroying federalism. But they failed to recognize a fundamental principle of constitutional design: that in order for constraints to bind, it is necessary for politicians to have personal incentives to respect them. “Ambition,” Madison insisted in Federalist 51, “must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

Under the original arrangement, senators had strong incentives to protect federalism. They recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home. Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure. Moreover, when the federal government expanded to address a crisis (such as war), it quickly retreated to its intended modest level after the crisis had passed. Today, as historian Robert Higgs has observed, federal expansion creates a “ratchet effect.”

Just as important as its role in securing federalism, the Senate as originally conceived was essential to the system of separation of powers. Bicameralism — the division of the legislature into two houses elected by different constituencies — was designed to frustrate special-interest factions. Madison noted in Federalist 62 that basing the House and Senate on different constituent foundations would provide an “additional impediment . . . against improper acts of legislation” by requiring the concurrence of a majority of the people with a majority of the state governments before a law could enacted. By resting both houses of Congress on the same constituency base — the people — the Seventeenth Amendment substantially watered down bicameralism as a check on interest-group rent-seeking, laying the foundation for the modern special-interest state.

Finally, the Framers hoped that indirect election of senators would elevate the quality of the Senate, making it a sort of American version of the House of Lords, by bringing to public service men of supreme accomplishment in business, law, and military affairs. There is some evidence that the indirectly elected Senate was more accessible to non-career politicians than today’s version is. And research by law professor Vikram Amar has found that during the 19th century, accomplished senators such as Webster and Calhoun frequently rotated out of the Senate and into the executive branch or the private sector, with an understanding among state legislators — and, notably, the senator selected to fill the seat — that they could return to service if they wished to do so or were needed. Foes of the Seventeenth Amendment argued at the time that its enactment would spawn a deterioration in the body’s quality. Whether the modern titans of the Senate such as Trent Lott, Bill Frist, Harry Reid, and the late Ted Kennedy are superior to Webster, Clay, and Calhoun is to some extent a matter of taste. But it is likely that reinstating the original mode of selection would change the type of individuals selected — and it is not implausible to think that the change would be positive.

Establishment media and liberal politicians have mocked tea partiers’ calls for repeal of the Seventeenth Amendment as anti-democratic. To be sure, indirect election would be less democratic than direct election, but this is beside the point. Notably, those who are most shocked by the proposal to repeal the Seventeenth Amendment are also the most vociferous in denouncing democratic election of judges. The Framers understood what today’s self-interested sloganeers of democracy do not: What matters is not whether a given method of selecting governmental officials is more or less democratic, but whether it will safeguard the constitutional functions bestowed upon each branch and conduce to their competent execution. Indeed, certain of the Senate’s duties — such as its role as a type of jury for impeachment proceedings — make sense only if it is somewhat insulated from the public’s passions of the moment, as was well demonstrated by the farcical Senate trial of Bill Clinton.

Critics of repeal have also contended that election of senators by state legislatures was, and would be today, unusually prone to corruption and bribery. But research by historian C. H. Hoebeke found that of the 1,180 Senate elections between 1789 and 1909, in only 15 cases was fraud credibly alleged, and in only seven was it actually found — approximately one-half of 1 percent. Moreover, it is absurd to think that even this modest degree of corruption would be tolerated in the modern media age, any more than politicians can today sell judgeships or other appointed offices, as they frequently did in the past. And even in the progressive era it was not believed that direct election of senators would prevent corruption. Among the Seventeenth Amendment’s staunchest supporters were urban political machines (hardly advocates of clean government), which understood that direct election would boost their control of the Senate as they drove and bribed their followers to the polls.

Repealing the Seventeenth Amendment would not be a panacea for what ails the American political and constitutional system. As during the era before the Seventeenth Amendment, many states would probably adopt either de facto direct election of senators, in which legislatures essentially agree to ratify the popular vote, or attenuated forms of it, such as primaries or conventions to select party nominees from whom the legislatures choose. And much work would remain to be done to restore the public’s understanding of the difference between a direct democracy and a democratic constitutional republic. But repeal would be a step in the direction of restraining an imperialistic central government and frustrating special-interest influence. Whether or not it is good politics, it remains sound constitutional design.

—Mr. Zywicki is a George Mason University Foundation professor of law and a senior scholar of the Mercatus Center. He has written several law-review articles examining the history and impact of the Seventeenth Amendment. This article first appeared in the November 15, 2010, issue of National Review.

Not going to happen... what we can do as Americans is to make certain that we inform our neighbors and friends when it is time to vote out a disgusting criminal power monger. We are not going to get term limits... we will never get the 17th repealed... even though I wish that we could... but 2010 has shown that we can throw the corrupt bastards out and we can stay engaged and do the hard work that it will take to salvage whatever soros and obama leave us with.

LLS

Yes, but as with any direct election, the influence of special interests can be countered by the vote of the people.

Not that it ended well (presumably in the first case), but does ANYONE think we would get a candidates like Miller in Alaska, or candidates OTHER than those like Castle from Delaware, if it were the State Legislatures selecting the candidates and voting on them?

A “moderate” party hack like Murkowski or Castle would be the order of the day if they were selected by State Legislatures.

Election of Senators by State Legislatures is an important check and balance of the Constitution. It divides the powerful Federal Congress into two different and competing constituencies. It is also republican in nature as it empowers elected State Representatives to chose their representative in the Federal government, a "Senator". The states currently do not have a representative in the Federal government. Our Federal government is effectively now made up of two House of Representatives', with NO Senate! What a huge loss. It was only after this important check to Federal usurpation was neutralized, with the direct election of Senators, that the United States began the widespread adoption of socialism. It is not coincidental.

Removing some legislative power from the people directly was and is wise. When Senators are elected by State Legislatures, they are accountable to the State Legislature that selected them. It is a completely different political dynamic. Whereas an individual may be interested in policies directly affecting them, the State Legislature has a broader perspective and is more likely interested in what affects the state as a whole. Both interests and perspectives are critical; losing either one is tragic. State Legislatures are more likely to be interested in checking federal power to jealously preserve their state's sovereignty. This is a great example of the founder's genius in using human nature to check human nature.

The people are represented in the House. With the Senate also elected by popular vote, we have 2 chambers focused on vote grabbing through entitlements.

With a Senate beholden to a State legislator, the Senate would be beholden to the state. Since the state governments also want power, it becomes a balance between state and federal.

Vote “grabbing” through appeal to the electorate (which includes plenty of “bringing home the bacon/pork” to their districts) is FAR FAR better than Vote “grabbing” of the vote of State Legislators only via appeal to the interests of State politicians.

The problem of the imbalance of power between the State and Federal government is mostly through an expansive reading of the interstate commerce clause.

So long as THAT is interpreted in the way it is, States have almost no power not subject to Federal oversight/regulation, and it doesn't matter one wit which way Senators were elected.

Yes, the dept of trans and the dept of ed are only ways for the gov to steal state's money and trickle it back as they see fit.

Disband the fed control over schools and highways. Both are unconstitutional anyway

Highways and schools will be in much better shape if this is done.

Minimize federal government!

How? You think it will be reflected in the Senatorial role of advise and consent to SCOTUS justices? Wow, repeal the 17th and in just a few short decades we MIGHT have an influence on how the interstate commerce clause is interpreted! Brilliant!

A Senator, no matter how elected, will be a federal officer and a suspect warden at best of the interests of State rights, he is much more likely to be (as they are now) an advocate for Federal (Senatorial) power and State interests (bringing home the pork).

It is not as if before the 17th the Federal government was kept in check and after the 17th it was runaway BECAUSE of the 17th. Federal power was expansive and encroaching LONG before the 17th, and the mechanism of such is an expansive reading of the interstate commerce clause.

Regulation of interstate commerce is not a blank check to regulate any and all behavior that may have any effect whatsoever on interstate commerce. THAT is the problem withe the balance of power between States and the Fed.

Every time I think of repealing the 17th, the Blagojevich’s Illinois senate auction comes to mind .

They are different things.

In Blago's case, he was filling a vacancy and the authority to appoint the Senator was solely his.

In the normal case prior to the 17th, it was the authority of the legislature as an entire body, not the Governor as an individual. There would have been many more checks and balances in the process.

-PJ

The fact is that repealing the 17th would be like turning a tanker ship, that is, a slow process of change.

If the people don't like the way the legislature is appointing its Senators, then the people at the grass roots will vote in new legislators until the make-up of the legislature is one that will appoint a Senator more to the peoples' liking.

This is the tie between the federal Senate and the local people. It is not direct and quick like it is with the House, but this is how to connect the tapestry of the Constitution with the people -- people vote for their state legislature, the legislature appoints a Senator. If the Senator fails to heed the state's wishes, the state will appoint someone new in six years. If the state legislature fails to appoint a Senator to the people's liking, the people will vote in a new legislature.

It takes time for changes to work their way through the system, but it all connects back to the people eventually, but it also ties local elections to the federal government.

-PJ

The problems resulting from the 17th are well known to us now. Whatever problems there may have been under the prior system are NOT well known to us now. Honesty and prudence should require that any movement to repeal the 17th should include a lengthy review of how things were before the 17th. Changing the Constitution shouldn’t be done in haste. Maybe someone can dream up some modification to either the prior or current system, or something completely different that would work even better. And don’t place too much hope on any such reforms. Be glad California only gets two Senators; don’t expect than any other method by which they are freely chosen would give you results much better than their present pair.

Just a reminder - I am not single-handedly responsible for the state of California’s politics. The mocking and unending snide references to the pathetic politics here, although correct, are hardly visionary. It would be encouraging and even perhaps uplifting to be within a conservative community that knew there was work to be done and encouraged those of us who are doing it, rather than to have to duck incoming day after day.

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