The Progressive Senate and Its Discontents

The Seventeenth Amendment reshaped the Senate from a body tied to the states into a national political arena defined by permanent ambition and escalating federal power.

For most Americans—or at least most Americans with even a remedial education in civics—the phrase “separation of powers” usually explains the tripartite nature of the federal government. The Founders, in their wisdom, divided that government into branches: the legislative branch, which debates and enacts laws; the executive branch, which enforces the laws; and the judicial branch, which interprets the laws and ensures that they are compliant with one another and with constitutional principles. It’s a nice, clean, simple, and, above all, effective system for limiting the power of the federal polity. It ensures that laws are carefully and thoughtfully created and enforced in accordance with the idea that “all men are created equal and endowed by their Creator with certain unalienable Rights, [and] that among these are Life, Liberty, and the pursuit of Happiness.”

People (understandably) tend to forget that the Founders’ separation of powers referred not only to the construction of the federal government but also to the construction of the federal republic. To the Founders, the states were considered the primary site of governance, while the federal entity had only a “few and defined” responsibilities. The Constitution was crafted specifically and purposefully to limit government’s ability to interfere in the lives of the people by separating the governance role among several different entities.

Ironically, the “Federalists,” whose positions were recapped in 85 famous “papers,” were the “big government” types of their era. The Federalists are often cited today (as they will be in this column) in defense of a small federal government and a nation dominated by state interests. Nevertheless, they wrote their invaluable papers specifically to convince the skeptics—the anti-Federalists—that a strong federal government was necessary at all.

The case for a limited federal government and much more formidable state governments is made throughout the Constitution, most notably in the now-largely-forgotten Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That case is also famously made in Federalist Papers Nos. 44, 45, and 46, which explain in great detail how “the states are the protectors of liberty” and how the federal government is dependent for its existence on the states and their voluntary concessions of power. The case is also made, albeit far less famously, in Federalist Papers Nos. 62 and 63. Among other things, those two essays defend the establishment of a Senate whose members were selected indirectly, by state legislatures rather than by the people themselves. The House of Representatives was designed to represent the will of the people, whereas the Senate was intended to represent the will (and the rights and prerogatives) of the states:

It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.

Unfortunately, the Constitutional order established by the Founders existed for only about a century. On the surface, the “great” men of the Progressive Era could not have appeared more different from one another, highly unlikely to unite in purpose to undermine the Founders’ republic and change the very nature of the American nation. That’s what they did, however, even if unintentionally. The three greatest Progressive “reformers”—Herbert Croly, Woodrow Wilson, and Teddy Roosevelt—shared a small handful of ideas and ideals in common, despite their superficial differences—and among these was their loathing for the Constitution and the limits it placed on the federal government. All three believed in the necessity of a central authority, dedicated to the principles of the science of man and operated by the best and the brightest society could offer, namely themselves.

By way of example, in his first annual message to the nation, Roosevelt derided the Constitution and the federalism so prized by its framers, declaring that they had been woefully mistaken when they “accepted as a matter of course that the several States were the proper authorities to regulate, so far as was then necessary, the comparatively insignificant and strictly localized corporate bodies of the day.” He forgave the Founders personally (and ever so graciously) but nevertheless insisted that “the conditions today are wholly different” than they were in 1788, “and wholly different action is called for.” “The old laws, and the old customs which had almost the binding force of law,” he continued, were no longer sufficient “to regulate the accumulation and distribution of wealth.” Most tellingly, he suggested that fate had empowered him to act on the people’s “sincere conviction that combination and concentration should be, not prohibited, but supervised and within reasonable limits controlled; and in my judgment this conviction is right.”

Conservatives today generally acknowledge that the Progressive Era reforms most devastating to the Founders’ Constitution were the establishment of a graduated income tax (through the passage of the Sixteenth Amendment) and the creation of the Federal Reserve. Often, they forget the damage done by the Seventeenth Amendment, which ended the “selection” of senators and replaced it with their direct election.

George Mason of Virginia had argued that the point of indirect election of senators was to provide state legislatures with “some means of defending themselves against encroachments of the national government.” Madison himself had argued that it helped ensure that the government remained “federal” and not “national,” thereby safeguarding the separation of powers. Massachusetts Congressman Fisher Ames, a dedicated Federalist and, as such, one of the more insistent defenders of the federal government, insisted that the indirect election of senators was the key to maintaining the nature of the republic and that without it, the whole experiment would fail:

The state governments are essential parts of the system … The senators represent the sovereignty of the states; … they are in the quality of ambassadors of the states … [But suppose] that they [were] to be chosen by the people at large … Whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution.

Despite all of this, the Progressives won the argument, and in 1913, the Seventeenth Amendment was ratified by the states.

All of this is worth keeping in mind today, as the various political controversies of the day unfold. For example, President Trump has been fighting, very prominently, with several senators from his own party. This past week, Trump or his surrogates clashed repeatedly with Thom Tillis of North Carolina, who has been a sharp critic of the White House and went so far as to call the president’s advisers “stupid.” Trump has also had high-profile clashes with the Senate Majority Leader, South Dakota’s John Thune, who has repeatedly thwarted the administration’s attempts to fill open positions in the government through recess appointments and who insists that he is powerless to pass the SAVE Act, which would require ID to vote in federal elections. Trump also, rather conspicuously, endorsed Ken Paxton, the Texas attorney general, in his race to unseat incumbent Republican Senator John Cornyn.

Now, one needn’t be naïve enough to believe that Trump endorsed Paxton in service to the states’ interests rather than his own to see this dysfunction as a significant problem. The Federalists (in this case, Madison and/or Hamilton) saw the indirect election of senators as one means to avoid such drama and to maintain the people’s trust in the government and its institutions. And clearly, that is desperately needed today. The Founders never expected the president and senators from his own party to quarrel over their personal political predilections. Indeed, the Founders didn’t really expect senators to have personal political predilections at all.

On the other side of the aisle, of course, the people of Maine seem poised to elect a political neophyte with a prominent Nazi tattoo and a history of problematic online behavior, while Nebraskans are flirting with an “independent” candidate whose views on social issues—especially abortion—differ dramatically from their own. Both men promise a working-class “revolution” against the ruling class, while both embrace largely amorphous platforms that, on the rare occasion they do get specific, generally support longstanding ruling-class policies.

The history of the American constitutional republic is largely divided into halves: 124 years before the ratification of the Seventeenth Amendment and 113 years after. In the first half, senators mostly did their jobs for a limited time and returned home. Three former senators were elected president—James Monroe, John Quincy Adams, Andrew Jackson—and only two senators, Henry Clay and Stephen Douglas, ran for president while in the Senate. In the second half, by contrast, the Senate has been seen by senators less as a temporary position in service to their home states and more as a permanent position of public prominence or a springboard to bigger things. Since 1972 alone, 50 different sitting or former U.S. senators have run for president a collective 62+ times. Major party nominees and serious contenders have included John F. Kennedy, Barry Goldwater, Hubert Humphrey, George McGovern, Bob Dole, John Kerry, John McCain, Hillary Clinton, Bernie Sanders, Ted Cruz, Marco Rubio, Barack Obama, Joe Biden, and many others. Harding, Kennedy, and Obama were elected directly from the Senate, while Biden and Lyndon Johnson were senators before becoming vice president. Additionally, of the ten longest-serving senators in history, all ten were elected after the Seventeenth Amendment.

It goes without saying that the indirect election of senators was hardly perfect, and it did, indeed, enable a great deal of corruption during the Gilded Age. But then, the Gilded Age produced corruption in nearly every institution, and it’s not as if corruption in the Senate has been eliminated in the last century. More to the point, there is little question that the alignment of senators’ views with those of their state legislatures was a significant factor in the obstinacy of the Southern states in the fight over slavery, which is why the effort to change the process began in the aftermath of the Civil War, even before the Progressive Era officially began. That said, the Civil Rights Act and the official end of Jim Crow were protested vehemently by popularly elected Southern Democratic senators and were achieved, by and large, only because the old Confederacy was, by the early 1960s, significantly outnumbered.

The American Founders were an unusually smart, prescient, and prudent group of men. The Progressives, while mostly well-meaning, were notably less so. They saw real problems and offered what they saw as real solutions, but did so far less judiciously and cautiously than their predecessors had done. While it is hardly fair to say that all our governmental problems today are relics of the Progressive reforms, many were. The size and scope of the federal government and the general sense that the Senate exists principally to advance the interests of its occupants are just two of the most pronounced.

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I think the if our younger selves from say the year 2000 were suddenly sent forward in time, they would be shocked at politicians and politics today.

We are living in a world gone insane

This article puts forth bold claims but no proof of such claims; as is typical in this particular subject of discussion. To say Senators picked by the state legislatures would be less politically driven than Senators pick by popular votes does not make it so. Knowing human nature, I am sure there were many Senators that were politically driven the first century of this country.
Claiming the states are more able to pick able senators than the people is using the same argument used in this article that Roosevelt used, that our betters (elites) are wiser than the people.

The Seventeenth Amendment allowed federal senators to ignore the will of their states, made them unanswerable to their state legislatures, and allowed for them to be more loving of lobyists, including foreign interest lobyists.

We want our two senators in Washington to have to come back to the Indiana State Legislature and give public account, under questioning, for the way they vote in the U.S. Senate.

That the Fourteenth Amendment gave equal protection to corporations goes unmentioned, yet is that which made the Federal government a place for ‘one stop shopping’ and accelerated the concentrated wealth Roosevelts cites.

Further, he misses the equivalent to the Fourteenth in Madison’s original (and rejected) submission for the BOR as an example of the engine of progressivism: the power to enforce equal protection against the States.

So while the author makes a decent case for the catastrophe of progressivism, he misses its nascence. It was always there.

I wonder what the founders would think of politics today. I think they would be shocked.

The would be amazed at the technological progress, the incredible prosperity, the advances in science.

They would understand the gathering of power in the central government. They warned against it.

Overall, they would be shocked at the open licentiousness of society.

They would pat themselves on the back for having succeeded beyond anything they could have imagined.

“the power to enforce equal protection against the States.”

Please explain and provide example(s).

They would pat themselves on the back for having succeeded beyond anything they could have imagined.

Economically, yes. Socially, definitely not.

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