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The Seventeenth Amendment and the Death of Federalism
Fall Regional Meeting of the Philadelphia Society ^ | October 3-4, 2003 | Ralph A. Rossum

Posted on 10/06/2003 5:21:23 PM PDT by Vindiciae Contra TyrannoSCOTUS

The Seventeenth Amendment
and the Death of Federalism

Ralph A. Rossum
Salvatori Professor of American Constitutionalism
Claremont McKenna College
Claremont, California

Prepared for Delivery at the Panel on "Republicanism, Federalism, and the Constitution"
of the 2003 Fall Regional Meeting of the Philadelphia Society

Williamsburg Woodlands
Williamsburg, Virginia
October 3-4, 2003

My comments today are based largely on a book I recently completed for Lexington Books that explores the Seventeenth Amendment and the death of federalism.[i] Entitled Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy, it is also a critical commentary on the spate of controversial federalism decisions recently handed down by an activist U.S. Supreme Court. Thirteen times since 1976 (and, with much-greater frequency, twelve times since 1992), the Court has invalidated federal laws—many of them passing both houses of Congress by wide margins—in order to preserve what it has described as "the original federal design."[ii] In the book, I challenge the Court’s fundamental jurisprudential assumptions about federalism and argue that (1) the framers did not expect federalism to be protected by an activist Court but rather by constitutional structure—in particular, by the mode of electing the United States Senate;[iii] (2) the political and social forces that culminated in the adoption and ratification of the Seventeenth Amendment eliminated that crucial structural protection and thereby altered the very meaning of federalism itself; and (3), as a consequence, the original federal design has been amended out of existence and is no longer controlling—in the post-Seventeenth Amendment era, it is no more a part of the Constitution the Supreme Court is called upon to apply than, for example, in the post-Thirteen Amendment era, the Constitution’s original fugitive slave clause.

I argue in the book that the framers understood that federalism would be protected by the manner of electing (and, perhaps most importantly, re-electing) the Senate. However, the adoption and ratification of the Seventeenth Amendment, providing for direct election of the Senate,[iv] changed all that.

The Seventeenth Amendment was ultimately approved by the United States Congress and ratified by the states to make the Constitution more democratic. Progressives argued forcefully, persistently, and ultimately successfully that the democratic principle required the Senate to be elected directly by the people rather than indirectly through their state legislatures. The consequences of the ratification of the Seventeenth Amendment on federalism, however, went completely unexplored, and the people, in their desire to make the Constitution more democratic, inattentively abandoned what the framers regarded as the crucial constitutional means for protecting the federal/state balance and the interests of the states as states.

Following ratification of the Seventeenth Amendment, there was a rapid growth of the power of the national government, with the Congress enacting measures that adversely affected the states as states[v]—measures that quite simply the Senate previously would never have approved.[vi] For the initial quarter of a century following the amendment’s ratification in 1913 and then again for the last quarter of a century, the United States Supreme Court’s frequent reaction to this congressional expansion of national power at the expense of the states was and has been to attempt to fill the gap created by the ratification of the Seventeenth Amendment and to protect the original federal design. It has done so by invalidating these congressional measures on the grounds that they violate the principles of dual federalism; go beyond the Court’s narrow construction of the commerce clause; "commandeer" state officials to carry out certain federal mandates; exceed Congress’s enforcement powers under Section 5 of the Fourteenth Amendment, or, most recently, trench on the states’ sovereignty immunity. In so doing, it has repeatedly demonstrated its failure to appreciate that the Seventeenth Amendment not only eliminated the primary structural support for federalism but, in so doing, altered the very nature and meaning of federalism itself.

There is irony in all of this: An amendment, intended to promote democracy, even at the expense of federalism, has been undermined by an activist Court, intent on protecting federalism, even at the expense of the democratic principle. The irony is heightened when it is recalled that federalism was originally protected both structurally and democratically— the Senate, after all, was elected by popularly-elected state legislatures. Today, federalism is protected neither structurally nor democratically—the ratification of the Seventeenth Amendment means that the fate of traditional state prerogatives depends entirely on either congressional sufferance (what the Court calls "legislative grace") or whether an occasional Supreme Court majority can be mustered.[vii]

The book argues that federalism as it was understood by the framers—i.e., the "original federal design"—effectively died as a result of the social and political forces that resulted in the adoption and ratification of the Seventeenth Amendment. The Court, however, has had trouble learning this lesson—it took a quarter of a century to learn it initially, and, during the most recent quarter century, it has repeatedly forgotten it. It argues that the Court—typically by the slimmest of majorities—has refused to acknowledge that its efforts to revive federalism—by drawing lines between federal and state power that the framers denied could be drawn and that they never intended for the Court to try to draw—are merely futile attempts to breathe life into a corpse.

My intention today is twofold: (1) to explain why and how the framers understood that the mode of electing the Senate (rather than reliance on the Supreme Court) would be the principal means not only for protecting the interests of the states as states but also for identifying the line demarcating federal from state powers; and (2) to explore the political and social forces at work in the states that ultimately led to the adoption and ratification of the Seventeenth Amendment and, thereby, to the public’s inattentive alteration of the structural protection of federalism.

The framers understood that federalism would be protected structurally—the mode of electing (and re-electing) the Senate making it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states.[viii] The debates in the Constitutional Convention make this abundantly clear.

On May 31, 1787, very early in the Constitutional Convention, the delegates rejected Resolution 5 of the Virginia Plan that proposed that the "second branch of the National Legislature ought to be elected by those of the first," doing so by a vote of seven states "no," three states "yes." Instead on June 7, they unanimously accepted a motion by John Dickinson and seconded by Roger Sherman providing for the appointment of the Senate by the state legislatures.

The delegates were apparently persuaded by Dickinson’s argument that the "sense of the States would be better collected through their Governments than immediately from the people at large" and by George Mason’s observation that election of the Senate by state legislatures would provide the states with "some means of defending themselves against encroachments of the National Government. In every other department, we have studiously endeavored to provide for its self-defense. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than giving them some share in, or rather making them a constituent part of, the Nat’l Establishment?"

On June 20, James Wilson, a passionate nationalist, warned his fellow delegates that "a jealousy would exist between the State Legislatures & the General Legislature." He observed "that the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Genl. or State Legislatures, provided it be exercised most for his happiness." On the other hand, "[h]is representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl. with the eye of a jealous rival." Wilson’s attack, however, utterly failed, not because the delegates disputed his analysis but because they approved the outcome. Since they were committed to preserving the states as political entities, they found persuasive Mason’s assertions that the states would need the "power of self-defense" [ix] and that "the only mode left of giving it to them was by allowing them to appoint the second branch of the National Legislature." Accordingly, on June 25, the Convention reaffirmed its previous decision to elect the Senate by state legislatures by a vote of nine states "yes," two states "no."[x]

The service rendered to federalism by the mode of electing the Senate was also repeatedly acknowledged and proclaimed during the ratification debates. For example, in "An Examination of the Constitution of the United States," Tench Coxe, writing under the pseudonym of "An American Citizen" in Philadelphia’s Independent Gazetteer, noted that the members of the Senate will "feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence." In the Massachusetts Ratifying Convention, Fisher Ames described senators elected by their state legislatures as "ambassadors of the states," and Rufus King declared that "the senators will have a powerful check in those men [i.e., those state legislators] who wish for their seats, who will watch their whole conduct in the general government, and will give alarm in case of misbehavior."

In Federalist No. 45, Madison declared that, since "[t]he Senate will be elected absolutely and exclusively by the State Legislatures," it "will owe its existence more or less to the favor of the State Governments, and must consequently feel a dependence, which [he regretted] is much more likely to beget a disposition too obsequious, than too overbearing towards them." In Federalist No. 46, he further noted that, if the House of Representatives were to sponsor legislation that encroached on the authority of the states, "a few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter." The Senate, he assured his readers, would be "disinclined to invade the rights of the individual States, or the prerogatives of their governments." In Federalist No. 59, Alexander Hamilton likewise emphasized that the appointment of senators by state legislatures secured "a place in the organization of the National Government" for the "States in their political capacities." He continued: "So far as [the mode of electing the Senate] . . . may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision." Finally, in Federalist No. 62, Madison praised "the appointment of senators by state legislatures" as not only "the most congenial with the public opinion" but also "giving to state governments such an agency in the formation of the federal government, as must secure the authority of the former."

During the New York Ratifying Convention, Hamilton explicitly connected the mode of electing the Senate with the protection of the interests of the states as states. "When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states." Finally, in the North Carolina Ratifying Convention, James Iredell also noted that "[t]he manner in which our Senate is to be chosen gives us an additional security. . . . There is every probability that men elected in this manner will, in general, do their duty faithfully. It may be expected, therefore, that they will cooperate in every laudable act, but strenuously resist those of a contrary nature."

This same argument was also made repeatedly in the early days of the new republic. For example, in a July 1789 letter to John Adams, Roger Sherman emphasized that "[t]he senators, being eligible by the legislatures of the several states, and dependent on them for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States." In his 1803 edition of Blackstone’s Commentaries, St. George Tucker declared that if a senator abuses the confidence of "the individual state which he represents," he "will be sure to be displaced." James Kent in his Commentaries on American Law noted that "[t]he election of the Senate by the state legislatures is also a recognition of their separate and independent existence, and renders them absolutely essential to the operation of the national government." And Joseph Story in his Commentaries on the Constitution of the United States observed that one of the "main grounds" for the mode of appointing the Senate was that it "would introduce a powerful check upon rash legislation" and "would increase public confidence by securing the national government from undue encroachments on the powers of the states."

The framers favored election of the Senate by state legislatures not simply because it was, as Madison put it in Federalist No. 62, "the most congenial with the public opinion" and not simply because it provided, in Hamilton’s words from Federalist No 59, incentives for senators to remain vigilant in their protection of the "States in their political capacities." They also favored this mode of election because it helped them sidestep what Madison described in Federalist No. 37 as the "arduous" task of "marking the proper line of partition, between the authority of the general, and that of the State Governments."

An episode at the very outset of the Convention is most telling on this point. On May 31, the Convention, meeting as a committee of the whole, had just taken up Resolution 6 of the Virginia Plan that proposed, inter alia, that "the National Legislature ought to be empowered . . . to legislate in all cases to which the separate States were incompetent." Charles Pinckney and John Rutledge "objected to the vagueness of the term incompetent, and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition." Madison responded by expressing his "doubts concerning [the] practicality" of "an enumeration and definition of the powers necessary to be exercised by the national Legislature." Despite coming into the Convention with a "strong bias in favor of an enumeration," he owned that, during the weeks before a quorum gathered in Philadelphia (during which he and his fellow Virginia delegates drafted the Virginia Plan, including the language in Resolution 6), "his doubts had become stronger." He declared that he would "shrink from nothing," including, he implied, abandoning any attempt to enumerate the specific powers of the national government, "which should be found essential to such a form of Government as would provide for the safety, liberty, and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to."

In his speech, Madison merely foreshadowed the argument he would later develop more fully in Federalist No. 51, viz., that the power of the new federal government was to be controlled, not through an exact enumeration, i.e., through the use of "parchment barriers," but by "so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." Nonetheless, his words were obviously reassuring, for the Convention voted at the conclusion of his speech to accept that portion of Resolution 6 by a vote of 9 states "yes," one state "divided."

The Convention apparently shared Madison’s doubts about the "practicality" of partitioning power between the federal government and the states through an enumeration of the powers of the former. Spending almost no time debating what specific powers the federal government should have, it focused instead and almost exclusively on the question of constitutional structure. Thus, the only resolution pertaining to the powers of the federal government forwarded by the delegates to the Committee of Detail (charged with taking "the proceedings of the Convention for the establishment of a Natl. Govt." and "prepar[ing] and report[ing] a Constitution conformable thereto") stated only that "the Legislature of the United States ought to possess the legislative Rights vested in Congress by the Articles of Confederation; and moreover to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation."

Not even when the Committee of Detail created out of whole cloth what ultimately became Article I, Section 8, did the Convention systematically scrutinize the powers enumerated therein.

The delegates did not even object to the proposed Necessary and Proper Clause. The conclusion is clear: Rather than rely on precisely-drawn lines demarcating the powers of the federal and state governments, the framers preferred instead to rely on such structural arrangements as the election of the Senate by the state legislatures to ensure that the vast powers they provided to the national government would not be abused and that the federal design would be preserved.

One point concerning how the framers protected federalism needs to be underscored. They relied on constitutional structure and the self-interest of senators, not on the Supreme Court. They drafted a constitution that protected the interests of the states as states both structurally and democratically. They clearly did not intend that an undemocratic Supreme Court would protect the original federal design or that it would interfere with Congress’s decision of where to draw the line between federal and state powers.

Just how modest were the framers’ designs for the federal judiciary on this matter (or on any other as well) can be appreciated by simply noting the placement, brevity, and generality of the judicial article. To begin with, Article III, establishing the federal judiciary, follows Article I, establishing the legislative branch, and Article II, establishing the executive branch. By so arranging the articles, the Framers addressed each branch, in the words of James Wilson, a member of the Constitutional Convention and an original justice on the Supreme Court, "as its greatness deserves to be considered." Further, Article III is only about a sixth as long as the legislative article, and only about a third as long as the executive article. Moreover, Article I specifies in great detail the qualifications of representatives and senators (including age and citizenship requirements), the sizes of the two houses of Congress, the procedures they must follow, and the powers they are authorized or prohibited to exercise. Article II is likewise quite detailed in its discussion of the President’s qualifications, mode of appointment, powers, and responsibilities. By contrast, Article III merely vests the judicial power of the United States in one Supreme Court of unspecified size and in "such inferior Courts as the Congress may from time to time ordain and establish." Article III outlines no procedures the courts are obliged to follow, and it imposes no qualifications on judges, not even the requirement of citizenship.

More specific evidence that the framers did not expect the Court to protect federalism is also available. Thus, they understood that drawing a line between federal and state powers involves prudential considerations beyond the Court’s legal capacity to pass judgment. They understood that, to the extent that the Constitution authorized the Court to exercise the power of judicial review (and whether it did was itself a major question), it was only in those cases in which the popular branches had acted, in the words of Federalist No. 78, "contrary to the manifest tenor of the Constitution." The Court was not to invalidate congressional measures in close cases. Rather, as Hamilton makes clear in Federalist No. 78, it was to invalidate measures only in cases in which Congress’s disregard for "certain specified exceptions to the legislative authority" was akin to its passage of a bill of attainder or an ex post facto law. Decisions by Congress regarding where federal power ends and state power begins were of a different character; they did not implicate "specified exceptions" to Congress’s legislative authority but rather merely involved prudential judgments, agreed to by a Senate elected by state legislatures, concerning the outer reaches of delegated congressional powers. As a consequence, these decisions could never be held unconstitutional by the Court, because they never could be regarded as clearly contrary to the Constitution’s "manifest tenor."

Quite apart from these prudential considerations, the framers did not expect the Court to protect federalism, because they recognized that they could not make it in the Court’ self-interest to do so. As the Anti-Federalist Brutus had shrewdly remarked, it would never be in the self-interest of the Court to strike down federal laws trenching on the "inviolable and residuary sovereignty" of the states, because "[e]very extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts. . . ." Brutus insisted that it will be in the interest of the judges "to extend their power and to increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done as will enlarge the sphere of their own authority." The framers made no effort to contradict Brutus’s assessment and thus concurred sub silentio.

In fact, while Brutus emphasized that it was always in the Court’s self-interest to uphold the growth of federal power at the expense of the states, the framers focused on the other side of the coin of self-interest and drafted Article III, Section 2 so as to make it decidedly contrary to the Court’s self-interest to interfere with Congress’s decisions concerning where to draw the line between federal and state power. Thus, in Federalist No. 80, Hamilton observed that "[i]f some partial inconveniences should appear to be connected with the incorporation of any of [the powers of the judiciary] . . . into the plan," e.g., if the Court were ever to interfere with where Congress had drawn the line between federal and states powers, "it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences." In Federalist No. 81, he discussed another "important constitutional check" on the Court – the impeachment power. "This is alone," he continued, "a complete security."

One final point concerning the framers’ intentions for the Court: As they did not see it in the self-interest of the Court to protect federalism, so also they did not regard it as in the best interest of federalism for it to be protected by the Court. The framers wanted the people to have maximum flexibility to draw the line between federal and state powers where they wished. They recognized, as Madison argued in Federalist No. 46, that the people might "in [the] future become more partial to the federal than to the State governments, . . . and in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due." They were confident that such a "change [could] only result from such manifest and irresistible proofs of a better administration [by the federal government], as will overcome all [the people’s] antecedent propensities"; nevertheless, if such a change of public attitude did come about, they wanted to accommodate the people’s wishes to draw the line between federal and state power where their representatives in the House and their states’ representatives in the Senate wanted them, not where the Supreme Court might determine. The framers’ original understanding of how federalism would be protected succeeded admirably for the first century. The measures that the Congress passed were understood, even by the Senate, to be consistent with the original federal design and as serving those interests that prompted the adoption and ratification of the Constitution in the first place. With Dred Scott as the principal exception, they were similarly understood by the Supreme Court as well.[xi] Over time, however, the public became increasingly dissatisfied with the indirect election of the Senate and unappreciative of the protection it rendered to federalism. The public embraced the Progressives’ belief that the solution to all the ills of democracy was more democracy. Tocqueville offers an important insight as to why: "Men living in democratic ages do not readily comprehend the utility of forms"—Tocqueville’s word for constitutional structure; in fact, quite the contrary, "they feel an instinctive contempt for them."

Forms, Tocqueville argues, excite the contempt and hatred of men living in democratic ages. Since they "commonly aspire to none but easy and present gratifications" and since the "slightest delay exasperates them," they are "hostile to forms, which perpetually retard or arrest them in some of their projects." As Tocqueville goes on to argue, however, "this objection which the men of democracies make to forms is the very thing which renders forms so useful to freedom." "Their chief merit is to serve as a barrier between the strong and the weak"—in the case of federalism, between the national government and the states. And the stronger the national government becomes, the more important forms or structure -- in this particular case, the mode of electing the Senate—also become for protecting the interests of states as states. As Tocqueville writes, "Forms become more necessary in proportion as the government becomes more active and more powerful, while private persons [and, one might add, the states] are becoming more indolent and more feeble." From this, Tocqueville draws the following conclusion: "[D]emocratic nations naturally stand more in need of forms than other nations, and they naturally respect them less. This deserves most serious attention."

Over time, the public came to have less respect for constitutional forms. Forms—separation of powers, checks and balances, and federalism—were all associated by the Progressives with a mechanistic "Newtonian Theory" of politics that, as Woodrow Wilson insisted, had been superseded by a modern Darwinian Theory. "The Constitution," Wilson argued, "was founded on the law of gravitation. The government was to exist to move by virtue of the efficacy of ‘checks and balances.’" However, according to Wilson, "The trouble with th[at] theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton." Moreover, constitutional forms were regarded by the Progressives as evidence of the framers’ lack of confidence in the people. As Wilson argued in a chapter in his 1912 campaign book The New Freedom entitled "The People Need No Guardians": the framers were "willing to act for the people, but . . . not willing to act through the people. Now we propose to act for ourselves." Alexander Hamilton came under particularly heavy fire: Because he relied on constitutional forms and not simply on the people, Wilson branded him a "great man, but, in my judgment, not a great American."

Under the Progressives’ tutelage, the people lost respect for constitutional forms, and hence, for the structural protection afforded federalism. They came to associate the election of the Senate by state legislatures with an outmoded, plutocratic constitution. Senators were no longer described in the grandiloquent terms of a Tocqueville: "[T]he Senate . . . contains within a small space a large proportion of the celebrated men of America. Scarcely an individual is to be seen in it who has not had an active and illustrious career: the Senate is composed of eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose arguments would do honor to the most remarkable parliamentary debates of Europe." Rather they were subjected to Beardian obloquy: "Some of them were political leaders of genuine talents but a majority possessed no conspicuous merits except the ownership of strong boxes well filled with securities."[xii] By contrast, the people came to identify direct election of the Senate with reform, faith in the people, and progress. The people demanded change, and they eventually prevailed. On May 12, 1912, the Seventeenth Amendment, providing for direct election of the Senate, was approved by the Congress; it was ratified by the requisite three-fourths of the state legislatures in less than eleven months and declared to be a part of the Constitution in a proclamation by the Secretary of State on May 31, 1913.

While state ratification of the Seventeenth Amendment came quickly and easily, adoption by the Congress did not. The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From then until the adoption of the Seventeenth Amendment 86 years later, 187 subsequent joint resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate reluctantly gave its consent.[xiii] The factors that led to the Seventeenth Amendment’s adoption and ratification need explanation.

Legislative Deadlock

One factor was legislative deadlock over the election of senators brought about when one party controlled the state assembly or house and another the state senate.[xiv] While the opportunity for deadlock was always present, it was unleashed by an 1866 act (passed by Congress under its Article I, Section 4 power to prescribe the time and manner of electing senators) The act mandated that each member of the state legislature disclose his preference for senator by a voice vote and the difference between the two houses be recorded, thereby revealing at the outset of each session what a small minority would need to know to prevent, if it could not control, the election of any senatorial candidate. It also required state legislatures to meet in joint session at noon on each legislative day and vote for a senator until a candidate was elected.

Let me rehearse some of these deadlocks. In 1885, the Oregon legislature failed, after 68 ballots, to elect a senator and eventually did so only in a special session. Two years later, West Virginia failed to elect anyone. In 1892, Louisiana failed to elect a senator. In 1893, the legislatures in Montana, Washington, and Wyoming deadlocked and failed to elect senators, whereupon the governors of these states filled the vacancies by appointment, only to have the Senate deny them their seats on the grounds that only the state legislatures could elect senators. Kentucky failed to elect a senator in 1896; Oregon in 1997; California, Utah, and Pennsylvania in 1899; Rhode Island in 1907; and Colorado in 1911. Deadlock was perhaps most evident and embarrassing in Delaware; it was represented by only one senator in three Congresses and was without any representation at all from 1901 to 1903.[xv] From 1885 to 1912, there 71 such legislative deadlocks, resulting in 17 senate seats going unfilled for an entire legislative session or more. These protracted deadlocks often led to the election of "the darkest of the dark horse" candidates, occasionally deprived the affected states of representation in the Senate, always consumed a great deal of state legislative time that was therefore not spent on other important state matters, and powerfully served to rally the proponents of direct election.[xvi]

Bribery and Corruption

A second factor undermining support for the election of senators by state legislatures often followed on the heels of the first: Scandal resulted when deadlocks were occasionally loosened by the lubricant of bribe money. Prior to the passage of the 1866 act, the Senate had investigated only one case of alleged bribery in the election of a senator. However, between 1866 and 1900, the Senate was called on nine times to investigate alleged bribery in Senate election cases; by 1912, that number had increased by another five. In the 59th Congress alone, ten percent of the Senate’s entire membership was put on trial or subjected to legislative investigation. Two of the most infamous cases involved the elections of Montana Senator William A. Clark in 1899 and Illinois Senator William Lorimer a decade later. Clark confessed to a "personal disbursement" of over $140,000 to the legislators of Montana and resigned his seat during floor deliberations of a unanimous Senate committee report recommending his expulsion on the grounds that he was not "legally elected" since over half of his majority in the state Senate (8 of 15) had been obtained through bribery.[xvii] Lorimer, a dark-horse candidate acceptable to both parties, was elected in 1909 by a bipartisan coalition in the Illinois legislature, thereby breaking a protracted stalemate; however, a year later, the Chicago Tribune broke the story of how four state legislators were bribed to change their vote on his behalf, and in 1912, nearly half-way through the completion of his term, Lorimer was expelled by the Senate. Instances of bribery and corruption were, in truth, few in number. "Of the 1,180 senators elected from 1789 to 1909, only fifteen were contested due to allegations of corruption, and only seven were actually denied their seats. Corruption was proved to be present in approximately one-half of one percent of the elections during that period."[xviii] Nonetheless, these instances were much publicized and proved crucial in undermining support for the original mode of electing senators.

Populism and Progressivism

A third factor, closely related to the second, was the growing strength of the Populist movement and its deep-seated suspicion of wealth and influence. It presented the Senate as "an unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but low in integrity." In the House, proponents of direct election proclaimed a need to "awaken . . . in the Senators . . . a more acute sense of responsibility to the people." And in the Senate, they proclaimed the Senate to be "a sort of aristocratic body—too far removed from the people, beyond their reach, and with no especial interest in their welfare."

While Populism waned, Progressivism waxed in its place, providing still a fourth factor: Progressivism’s belief in "the redemptive powers of direct democracy," i.e., its conviction that the solution to all the problems of democracy was more democracy. The people could be trusted to act for themselves; government was to be not only "of, by, and for" the people, but "through the people."[xix] Thus, Senator William Jennings Bryan argued on the floor that "if the people of the United States have enough intelligence to choose their representatives in the State legislature . . . , they have enough intelligence to choose the men who shall represent them in the United States Senate." Senator David Turpee agreed: however valid the reasons might have been for the framers’ original mode of electing senators, the people at the end of the Nineteenth Century were "a new people living and acting under an old system."

Political Forces at Work at the State Level

Over time, election of senators by state legislatures came to be associated with stalemate, corruption, plutocracy, and reaction; by contract, direct election of senators was associated with reform, integrity, democracy, and progress. The public demanded change and repeatedly carried this message to the Congress itself through direct petitions. Beginning with a petition from the citizens of Kendall and LaSalle, Illinois, dated January 18, 1886, and continuing through the day the Seventeenth Amendment received congressional approval, the Congress received a total of 238 petitions from farmers’ associations, labor groups, and other citizens’ groups calling for direct election of the Senate.

The politicians also demanded change. Beginning with the Nebraska Republican Party in 1872 and continuing until the ratification of the Seventeenth Amendment, a total of 239 party platforms called for direct election of the Senate, including 220 state party platforms and 19 national party platforms.

Even the states themselves demanded change. Beginning with a memorial from the California State Legislature on February 18, 1874, and continuing through congressional adoption of the Seventeenth Amendment in 1912, the Congress received a total of 175 memorials from state legislatures urging adoption of direct election of the Senate. State legislatures did more, however, than merely demand change by sending memorials to the Congress; they took other steps as well to bring it about. Thus, by 1912, thirty-three states had introduced the use of direct primaries, and twelve states had adopted some form of what was known as the "Oregon system."

South Carolina was the first state to introduce the direct primary in 1888. The direct primary democratized the election of senators in the same way that the election of the president had been democratized. As Alan Grimes explains, "[I]n the same fashion in which state members of the Electoral College cast their votes for the presidential candidate who had received the greatest popular vote in the state, so the state legislatures were asked to elect that candidate for senate who had received the greatest popular vote in a preferential primary."[xx]

The direct primary, however, shared the same problem as the democratized Electoral College: the faithless elector. State legislators were not legally bound to abide by the results of the primary and could ignore the wishes of the voters. In an attempt to solve this problem, the State of Oregon passed by initiative in 1904 the "Oregon system." Under this system, a general election runoff was held between the primary nominees for the Senate of the major parties, and candidates for the state legislature were "permitted" to include in their platform one of two statements regarding their views on the election of senators. "Statement No. 1" pledged the candidate to abide by the results of the general election and, regardless of party affiliation, to vote "for that candidate for United States Senator in Congress who has received the highest number of the people’s vote for that position at the general election." "Statement No. 2" declared that the candidate would treat the results of the general election "as nothing more than a recommendation" and would vote according to his personal discretion.

Eleven other states (Idaho, Nebraska, Nevada, Colorado, California, Kansas, Minnesota, New Jersey, Ohio, Montana, and Arizona) quickly imitated the "Oregon system," with many going even further. Nebraska, for example, required that, after each candidate’s name on the primary ballot for the state legislature the following words would appear: "Promises to vote for people’s choice for United States Senator" or "Will not promise to vote for people’s choice for United States Senator."[xxi]

The states took another decisive step as well to bring about direct election of the Senate; they exercised their power under Section V of the Constitution and called for a convention to consider amending the Constitution to provide for direct election of the Senate. Calling for a constitutional convention was a high-risk strategy. Article V of the Constitution makes no provision for the manner of selecting and apportioning the delegates to such a constitutional convention, for the place of holding such a convention, for the rules of its proceedings, or for the scope of its authority. As a consequence, many argue that once a convention is called, there is no way to confine its deliberations; such a convention might consider itself authorized to propose other amendments to the Constitution as well -- or even to propose an entirely new Constitution organized on completely different principles.[xxii] Nevertheless, the states seemed willing "to risk opening Pandora’s Box for the sake of securing the popular election of senators." In 1893, California became the first state to apply to Congress for such a convention; it was followed six years later by Texas. In 1900, the Pennsylvania legislature took the decisive step of suggesting to the states a coordinated effort to demand a convention; believing that the Senate would not act until two-thirds of the states forced it to do so, it sent to all the states a copy of its convention petition and encouraged them likewise to submit one. Momentum was gained, as, in addition to Pennsylvania, Michigan, Colorado, Oregon, and Tennessee all made application to Congress for a convention in 1901. Kentucky applied in 1902, and Arkansas, Washington, and Illinois followed suit in 1903. Nebraska applied in 1907, as did Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nevada, New Jersey, North Carolina, Idaho, Oklahoma, South Dakota, Utah, and Wisconsin in 1908. By 1910, when Maryland applied to Congress for a convention, twenty-seven of the thirty-one state legislatures then required to call a convention had formally petitioned the Congress. Because of its call in 1908 for a convention for another reason (to abolish polygamy), Delaware was widely regarded by the proponents of direct election as constituting a twenty-eighth state; as they pointed out, all that it took to determine that a state’s application for a convention was legitimate was a simple majority in both houses of Congress. Arizona and New Mexico were about to become states and were expected to increase the ranks of those supporting such a amendment to thirty. While their admission to the Union would also increase the necessary two-thirds of the states to thirty-two, proponents of direct election noted that Alabama and Wyoming had already submitted resolutions supporting the idea of a convention although without formally calling for one, and that the language of their resolutions could be easily rectified. The fear of a "runaway" constitutional convention, along with the fact that most senators represented states whose legislatures were on record as favoring direct election of the Senate, proved decisive.[xxiii] Thus, on May 12, 1912, the 62nd Congress finally approved the Seventeenth Amendment by a vote in the Senate of 64 to 24 and by a vote in the House of 238 to 39.

The Seventeenth Amendment was quickly ratified by the states in less than eleven months (at the time, the only amendment to have been ratified more quickly was the Twelfth Amendment).[xxiv] Connecticut was the requisite 36th state to ratify on April 8, 1913. Not only was the Seventeenth Amendment ratified quickly but it was ratified by overwhelming numbers. Two statistics show how overwhelming: In 52 of the 72 state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all 36 of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from just two legislative chambers: 77 came from the Connecticut House and 75 from the Vermont House.

What is particularly noteworthy of the lengthy debate over the adoption and ratification of the Seventeenth Amendment was the absence of any serious or systematic consideration of its potential impact on federalism. The consequences of the Seventeenth Amendment on federalism went almost completely unexplored. The popular press, the party platforms, the state memorials, the House and Senate debates, and the state legislative debates during ratification focused almost exclusively on expanding democracy, eliminating political corruption, defeating elitism, and freeing the states from what they had come to regard as an onerous and difficult responsibility. Almost no one (not even among the opposition) paused to weigh the consequences of the amendment on federalism.

Only three exceptions are apparent in the voluminous record. One was Representative Franklin Bartlett, the Democrat from New York, who argued powerfully and eloquently during the 53rd Congress that the interests of the states as states could only be preserved by keeping the senators as representatives of state governments. He fully appreciated that "the Framers of the Constitution, were they present in this House to-day, would inevitably regard this resolution as a most direct blow at the doctrine of State’s rights and at the integrity of the State sovereignties; for if you once deprive a State as a collective organism of all share in the General Government, you annihilate its federative importance."

The other two exceptions were in the Senate: George F. Hoar, a Republican from Massachusetts, and Elihu Root, a Republican from New York. On the Senate floor during the 53rd Congress, Senator Hoar defended indirect election of the Senate, declaring that the "state legislatures are the bodies of men most interested of all others to preserve State jurisdiction . . . . It is well that the members of one branch of the Legislature should look to them for their re-election, and it a great security for the rights of the States." After quoting approvingly from Story’s Commentaries that election of the Senate by the state legislatures "would increase the public confidence by securing the national government from any encroachments on the powers of the states," Hoar continued: "The State legislature will be made up of men whose duty will be the administration of the State authority of their several State interests and the framing of laws for the government of the State which they represent. The popular conventions, gathered for the political purpose of nominating Senators, may be quite otherwise composed and guided. Here, in the State legislature, is to be found the great security against the encroachment upon the rights of the States." In the 61st Congress, Senator Root argued against direct election of the Senate on the very same grounds—if the sovereignty of the states was to be preserved, the original mode of electing the Senate had to be preserved.

Most political leaders during this lengthy campaign to secure the adoption and ratification of the Seventeenth Amendment clearly did not appreciate the framer’s understanding that the principal means of protecting federalism and preventing the transfer of the "residuary and inviolable sovereignty of the states"[xxv] to the national government was the mode of electing the Senate. They did not worry about altering constitutional structure, because they embraced the Progressive notion that the Constitution is a living organism that must constantly adapt to an ever-changing environment. They did not worry that their alterations would break a Newtonian, clock-like mechanism; rather, they believed in and celebrated the Darwinian adaptability of the Constitution and the evolution of its principles.

Abraham Lincoln’s 1838 speech to the Young Men’s Lyceum suggests why they were oblivious to the impact that direct election would have on federalism and, in so doing, offers a cautionary note to those who would trust in constitutional structure for their political salvation. In that speech, Lincoln described how the founding principles of the republic were "fading" from view. He did not fear that they would ever be entirely forgotten, only "that like every thing else, they must fade upon the memory of the world and grow more and more dim by the lapse of time." Nevertheless, Lincoln warned, the consequences were profound. Those founding principles "were a fortress of strength; but what invading foeman could never do, the silent artillery of time has done; the leveling of its walls."

To invoke Lincoln’s imagery from that Lyceum Address, in the glare of the Progressives’ white-hot confidence in the justice and superiority of simple majoritarian democracy, the framers’ arguments for relying instead on a more complex, mitigated democracy "faded" from the public’s view. Over an 86-year campaign to make the Senate more democratic, the people’s memories of the framers’ understanding that federalism could only be rendered secure by the mode of electing the Senate "gr[e]w more and more dim by the lapse of time." They no longer appreciated the importance of constitutional walls for directing and channeling self-interest toward the public good, and so, aided in their assault by the "silent artillery of time,"[xxvi] they leveled the walls of federalism and thereby killed it. We continue to live with the consequences of this successful assault.


_ednref1[i]. Ralph A. Rossum, Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, Md.: Lexington Books, 2001).

_ednref2[ii]. In 1976, the Supreme Court invalidated Congress’s 1974 amendments to the Fair Labor Standards Act, extending minimum wage/maximum hours requirements to employees of states and their political subdivisions. National League of Cities v. Usery, 426 U.S. 833 (1976). For the next sixteen years, the Court held its hand and, in fact, in 1985, reversed its 1976 decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). However, starting again in 1992, the Court has become very active, striking down twelve laws in eleven years. It declared unconstitutional:

· in 1992, the Low-Level Radioactive Waste Policy Amendments Act of 1985, mandating that the states themselves must take title to radioactive waste within their borders if they fail otherwise to provide for its disposition, New York v. United States, 505 U.S. 144 (1992) (on the grounds that the act "commandeered" state officials);

· in 1995, the Gun-Free School Zone Act of 1990, banning firearms within "a distance of 1,000 feet from the grounds of a public, parochial or private school," Lopez v. United States, 514 U.S. 549 (1995) (because it exceeded Congress’s power under the Commerce Clause);

· in 1996, the provision of the Indian Gaming Regulatory Act of 1988 mandating the states to negotiate in good faith with Indian tribes to form compacts governing certain gaming activities and authorizing them to be sued by the tribes in federal court if they fail to do so, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (because it violated the "presupposition" of the Eleventh Amendment that the states enjoy state sovereign immunity and cannot be sued without their consent);

· in 1997, both the Religious Freedom Restoration Act of 1993, barring all governments (federal, state, and local) from burdening the free exercise of religion without a compelling state interest, City of Boerne v. Flores, 521 U.S. 507 (1997) (on the grounds that the act was not remedial and therefore that Congress could not enact it based on Section 5 of the Fourteenth Amendment), and a key provision of the Brady Handgun Violence Prevention Act of 1993, mandating state law-enforcement officers to conduct background checks for all individuals wishing to buy handguns, Printz v. United States, 521 U.S. 898 (1997) (because it "commandeered these state officials to carry out this federal mandate);

· on a single day at the end of the Court’s 1998-99 term, the Trademark Remedy Clarification Act of 1992 subjecting states to suit under the Trademark Act of 1946, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999); the 1992 amendments to the Patent Remedy Act expressly abrogating state sovereign immunity in patent cases, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999); and those 1974 amendments to the Fair Labor Standards Act authorizing private actions against the states in their own courts without their consent, Alden v. Maine, 527 U.S. 706 (1999) (all three cases concluded that Congress lacked the power to abrogate state sovereign immunity);

· in 2000, the provisions of the Age Discrimination in Employment Act of 1967 subjecting states to suits filed by state employees for age discrimination, Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) (on the grounds that it violated the principle of state sovereign immunity), and the provisions of the Violence against Women Act of 1994, allowing victims of gender-motivated violence to bring suit in federal court to recover compensatory and punitive damages for the injuries sustained, United States v. Morrison, 529 U.S. 598 (2000) (because the act exceeded Congress’s enforcement powers under Section 5 of the Fourteenth Amendment);

· in 2001, the provisions of the Americans with Disabilities Act of 1990 allowing suits in federal court by state employees seeking to recover money damages by reason of a state’s failure to comply with the Act’s provisions, Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) (again, because it impermissibly trenched on state sovereign immunity); and

· in 2002, the provisions of the Shipping Act of 1984 allowing the Federal Maritime Commission to adjudicate complaints filed by private parties against state port authorities, Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002) (likewise on the grounds of the Eleventh Amendment’s guarantee of state sovereign immunity).

[iii]. There are, of course, other structural protections of federalism in the Constitution—the states’ involvement in the election of the president by the electoral college (Article II, Section 1) and in the amendment process (Article V) are two of them. Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy focuses on the mode of electing the senate for it was the structural provision on which the framers placed most emphasis and it is the only structural provision formally removed by constitutional amendment.

[iv]. The text of the Seventeenth Amendment is as follows:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the Legislature of any State may empower the Executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

[v]. Not only have these post-Seventeenth Amendment congressional measures increased in number and intrusiveness, they have also become, in Theodore J. Lowi’s terms, more abstract, general, novel, discretionary, and prescriptive (in contrast to earlier pre-Seventeenth Amendment legislation that was more concrete, specific, traditional, rule-bound, and prospective). Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority (New York: W. W. Norton & Company, 1969), 134-35. This development has led to what Lowi calls "policy without law" (Lowi, End of Liberalism, 126) and has weakened not only the states but the Congress itself—after all, with the Senate no longer answerable to state legislatures, it has felt increasingly free to join the House in legislating on every social, economic, or political problem which it perceives as confronting the nation, even if the resulting measures are little more than blank checks of authority to the executive branch and the federal bureaucracy. See Vikram David Amar, "Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment," Vanderbilt Law Review 49 (1996): 1360-89.

[vi]. It must be stressed that this is not a "cause and effect" argument; clearly, many factors account for the rapid expansion of the national government, with two world wars and the Cold War, continued industrial growth, and breakthroughs in transportation and electronic communications being chief among them. Moreover, as Jay S. Bybee acknowledges, it is "a maddeningly difficult proposition to prove" the exact effects of direct election of senators. Bybee, "Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment." Northwestern University Law Review 91 (1997): 500, 547. Nevertheless, it is clear that the ratification of the Seventeenth Amendment removed a previously-existing constitutional brake on these centralizing tendencies, and that federalism, as Todd J. Zywicki has pointed out, has been reduced to "a pale imitation of its pre-Seventeenth Amendment vigor." Zywicki, "Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals," Cleveland State Law Review 45 (1997): 165, 212. See also 174-75: "Conventional wisdom states that the New Deal commenced a radical shift in the scope of the federal government. In fact, the growth in the federal government began almost immediately after the passage of the Progressive Era amendments. . . . The New Deal simply confirmed the constitutional revolution which had already transpired."

[vii]. There is another irony as well that this book does not systematically explore: A majority of the Supreme Court is perfectly willing to deny the democratic principle and to protect federalism by invalidating what the popular branches have enacted, but it is unwilling to protect federalism and return vast areas of policy making to the states by repudiating its own earlier decisions that have held that the Fourteenth Amendment incorporates most of the provisions of the Bill of Rights and makes them applicable to the states. As Lino A. Graglia points out in "United States v. Lopez: Judicial Review under the Commerce Clause," Texas Law Review 74 (March 1996): 726, this loss of state autonomy by the Court is simply impossible to justify, because it means "the loss not only of federalism but also of the rights of representative self-government, the removal of power not only from the states but from the ordinary political process."

[viii]. The framers also relied on the composition of the Senate. By composition, I mean, in the words of Oliver Ellsworth, "that in the second branch each state have an equal vote," resulting thereby in a "general government partly federal and partly national." Max Farrand (ed.), The Records of the Federal Convention of 1787, Rev. ed., 4 vols. (New Haven: Yale University Press, 1937), 1: 474. Emphasis in the original. (Hereafter cited as Farrand, Records.) This, of course, is the description James Madison will apply to the new federal structure created by the Constitutional Convention in Federalist No. 39. James Madison, Alexander Hamilton, and John Jay, The Federalist, ed. Jacob E. Cooke (New York: World Publishing Company, 1961), 257. Had all states not been equally represented in the Senate, the ability of the smaller states to protect their interests as such would have been seriously impaired. See also Zywicki, "Beyond the Shell and Husk of History," 176-79, for an excellent discussion of how bicameralism also served to preserve the interests of the states as states. The focus of this chapter is not on the composition of the Senate (or on how equal representation of the states and bicameralism advance the interests of federalism) but only on the manner by which the Senate is elected.

[ix]. Farrand, Records, 1:. 407. Roger Sherman had already made much the same argument on June 6: "If it were in view to abolish the State Govts. the elections ought to be by the people. If the State Govts. are to be continued, it is necessary in order to preserve harmony between the National & State Govts. that the elections to the former shd. be made by the latter." Farrand, Records, 1: 133.

[x]. Farrand, Records, 1: 408. The delegates were clearly aware of other "modes" they also could have incorporated into the Constitution that would have helped to defend the interests of the states as states. To mention the four most obvious, they could have (1) specified that the Senate delegation from a state vote as a block, (2) made explicit provision for the instruction of senators by state legislatures, (3) allowed the states to recall their senators, and (4) required rotation in office.

[xi]. During the entire period prior to the ratification of the Seventeenth Amendment, the Supreme Court’s invalidations of congressional measures on federalism grounds were few in number and, with the exception of Dred Scott, of little consequence. It invalidated only seven congressional measures in the following cases: Dred Scott v. Sandford, 60 U.S. 393 (1957); United States v. Dewitt, 76 U.S. 41 (1870); United States v. Fox, 95 U.S. 670 (1878); the Trademark Cases, 100 U.S. 82 (1879); the Employers’ Liability Cases, 207 U.S. 463 (1908); Keller v. United States, 213 U.S. 138 (1909), and Coyle v. Smith, 221 U.S. 559 (1911). An eighth statute considered in Matter of Heff, 197 U.S. 488 (1905), could possible be added here. However, the Court explicitly overturned Matter of Heff in United States v. Nice, 241 U.S. 591 (1916), and, consequently, it is not included in these totals.

[xii]. Charles A. Beard and Mary R. Beard, The Rise of American Civilization. 2 vols. (New York: Macmillan Company, 1933), 2: 559.

[xiii]. The House approved these proposals by a two-thirds voice vote on January 16, 1893; by a vote of 141 to 50 on July 21, 1894; by a vote of 185 to 11 on May 11, 1898; by a vote of 242 to 15 on April 12, 1900; by a two-thirds voice vote on February 13, 1902; and by a vote of 296 to 16 on April 13, 1911. See David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (Lawrence, Kansas: University Press of Kansas, 1996), 209, and Hall, "The History and Effect of the Seventeenth Amendment," 163-64.

[xiv]. Although, see California, where this was not the case. The two legislative deadlocks that each time left the state with only one senator for an entire Congress were caused by other factors. In 1855, the deadlock resulted from a split between the northern (or "Tammany") and southern (or "Chivalry") factions of the Democratic Party. The two terms come from Zoeth Skinner Eldredge, History of California, 5 vols. (New York: Century History Company, 1915), 4: 136. In 1899, the deadlock came about when the Republicans divided in "a contest between Los Angeles and San Francisco." See A. A. Gray, History of California: From 1542 (New York: D. C. Heath and Company, 1934), 526. When the term of Senator Stephan M. White, a Democrat from Los Angeles, expired in 1899, a falling-out between Governor Henry T. Gage, a Republican from Los Angeles, and Michael H. de Young, Republican publisher of the San Francisco Chronicle, led to deadlock in the Republican-controlled legislature. After 104 ballots, and with the depletion of the legislators’ expense allowance for the session, the legislature adjourned on March 19 without electing a senator. The seat remained vacant unlike Thomas R. Bard, a Republican from Ventura, filled it in 1901. See Ralph J. Roske, Everyman’s Eden: A History of California (New York: Macmillan, 1968), 447-48; Rockwell D. Hunt, California and Californians. 5 vols. (Chicago: Lewis Publishing Company, 1926), 2: 414; and Royce D. Delmatier, Clarence F. McIntosh, and Earl G. Waters, The Rumble of California Politics: 1848-1970 (New York: John Wiley & Sons, 1970), 133-37.

[xv]. Kyvig, Explicit and Authentic Acts, 209. See also George H. Haynes, The Senate of the United States: Its History and Practice, 2 vols. (New York: Houghton Mifflin Company, 1938), 2: 92, and Hall, "The History and Effect of the Seventeenth Amendment," 287-301. As Zywicki, "Beyond the Shell and Husk of History," 199, points out, however, despite these problems, Delaware affirmatively voted to reject the Seventeenth Amendment.

[xvi]. "Each ballot took a considerable amount of time, and when sessions were limited to forty or sixty days, incessant balloting could not fail to curtail very materially the time available for the legislator’s normal work in the service of the state . . . [I]t must [also] be recognized that, as the session wore on, the animosities engendered in the deadlock projected themselves into the ordinary work of the legislature, giving a party color to the most non-partisan measures, and distorting the legislator’s views upon many state issues." Haynes, The Senate of the United States, 1: 93.

[xvii]. Interestingly, however, Montana returned Senator Clark the following year. Christopher H. Hoebeke, The Road to Mass Democracy: Original Intent and the Seventeenth Amendment (New Brunswick, N.J.: Transaction Publishers, 1995), 92.

[xviii]. Zywicki, "Beyond the Shell and Husk of History,"197.

[xix] Woodrow Wilson, The New Freedom: A Call for the Emancipation of the Generous Energies of a People (New York: Doubleday, Page, 1913), 55.

_ednref20[xx]. Alan P. Grimes, Democracy and Amendments to the Constitution (Lexington, Mass.: Lexington Books, 1978).

[xxi]. As a consequence, when George Norris, the Republican Party primary nominee for the Senate, defeated his Democratic Party opponent in the 1912 general election, the Democratically-controlled Nebraska Legislature duly elected Norris and sent him to the Senate. Sara Brandes Crook, "The Consequences of the Seventeenth Amendment: The Twentieth Century Senate." Ph.D. dissertation, Department of Political Science, University of Nebraska, Lincoln (1992), 30.

[xxii]. There are substantial arguments to the contrary. See Grover Rees III, "The Amendment Process & Limited Constitutional Conventions," Benchmark 2 (March-April 1986): 66-108. See also American Bar Association, Special Constitutional Convention Study Committee, Amendment of the Constitution: By the Convention Method Under Article V (Chicago: American Bar Association, 1974).

[xxiii]. "The wake-up call to the Senate was apparently the defeat in 1910 of ten Republican senators who had opposed the proposed amendment." Bybee, "Ulysses at the Mast," 537-38.

[xxiv]. The 26th Amendment holds the record today for quickest ratification. It was approved by the Congress on March 10, 1971, and ratified by the requisite 38th state on July 1 of the same year.

[xxv]. Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. Jacob E. Cooke (New York: World Publishing Company, 1961), No. 39, 256.

[xxvi]. Abraham Lincoln, "The Perpetuation of our Political Institutions," Address before the Springfield Young Men’s Lyceum in 1838. In Richard N. Current (ed.), The Political Thought of Abraham Lincoln (New York: Bobbs-Merrill Company, Inc., 1967), 20.

TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events
KEYWORDS: federalism; seventeenthamendment
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We call for the repeal of the 17th amendment, which will reverse the independence of the Senate and reestablish the Senate as a representative of the State governments, as intended by the Founding Fathers. This arrangement was intended to be a critical check against illegal federal expansion over the States, and the people residing in the various States, and will act to return the powers not granted to the federal government, as enumerated in the Constitution, to the states. Free Republic

...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.... The judiciary...has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

...It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. ... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186. The Avalon Project : Federalist No 78

...There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. Before I proceed to illustrate the truth of these reflections, I beg liberty to make one remark. Though in my opinion the judges ought to hold their offices during good behavior, yet I think it is clear, that the reasons in favor of this establishment of the judges in England, do by no means apply to this country. Antifederalist No. 78-79

IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? .... But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions....Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. The Avalon Project : Federalist No 48

Federalism: Reconciling National Values with States' Rights and Local Control in the 21st Century A constitutional principle without an actual constituency to back it up will soon crumble.

1 posted on 10/06/2003 5:21:23 PM PDT by Vindiciae Contra TyrannoSCOTUS
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We Replaced Patrick Leahy's Brains With Folger's Crystals. Let's See If Anyone Notices!

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2 posted on 10/06/2003 5:23:09 PM PDT by Support Free Republic (Your support keeps Free Republic going strong!)
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To: Vindiciae Contra TyrannoSCOTUS
All the above is undoutably true. However, would you want your Senators selected by Gray Davis, Goldberg, Herb Wesson and various other outcasts.
3 posted on 10/06/2003 5:32:07 PM PDT by AEMILIUS PAULUS (Further, the statement assumed)
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To: Vindiciae Contra TyrannoSCOTUS

The 13th amendment allows the FedGov to bypass the States for funding and the 17th allowed fedGov to bypass the States for legal authority.

Repeal the 17th and ammend the 13th to allow the States to collect all income taxes and then pass on the appropriate share to the FedGov. (may not even require any mod of the 13th)

4 posted on 10/06/2003 5:33:06 PM PDT by Mark Felton ("All liberty flows from the barrel of a gun")
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"However, would you want your Senators selected by Gray Davis, Goldberg, Herb Wesson and various other outcasts."

They were elected by the entire legislative body of the State (as I recall).

5 posted on 10/06/2003 5:35:15 PM PDT by Mark Felton ("All liberty flows from the barrel of a gun")
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To: Vindiciae Contra TyrannoSCOTUS
Great find.

I'll put it up at my foundation's site tomorrow.

Here's the url for anyone interested.

Ralph Rossum is a friend, and his piece is excellent.


Richard F.

6 posted on 10/06/2003 5:47:09 PM PDT by rdf (co-chair of "yes on 209", GOP chair, Vta County CA, '92)
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To: Vindiciae Contra TyrannoSCOTUS
"...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.... The judiciary...has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

Now we want to know how SCOTUS attained the ridiculous level of power it wields today. Thank you for the enlightening (and headache-inducing) read.
7 posted on 10/06/2003 5:47:56 PM PDT by NewRomeTacitus ("This is not a court of justice. This is a court of law!" - Justice Learned Hand)
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To: Mark Felton
Before the 17th Amendment, states selected their U.S. Senators however they damn well pleased. Most Senators were elected by the state legislatures, though I believe some states had direct Senate elections among the voters. If a state wanted to have the governor select the Senators, then nothing would have prevented it from doing so.

Since the Civil War, American government has slowly moved away from such "indirect" elections of leaders and moved closer to full, direct democracy. In my opinion, such a system of government is incompatible with a constitutional republic such as the one our founding fathers created. Successful "leaders" have come to be defined as the ones who do the best job of pandering to the tastes of an electorate that is increasingly ignorant and vulgar.

Without the 17th Amendment, people like Al Gore, Joe Lieberman, and Trent Lott would never have been elected to the U.S. Senate.

8 posted on 10/06/2003 6:00:38 PM PDT by Alberta's Child ("To freedom, Alberta, horses . . . and women!")
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To: Mark Felton

The 13th amendment allows the FedGov to bypass the States for funding

Not according to the spokesmen at the time of the Constitution's ratificatation. Both sides agreed the Constitution predominately operated on the individual as opposed to the the state governments. The big argument was over who got to tax the peons:


James Madison, Federalist #39:

James Madison, Federalist #45:

Antifederalist #03l

"There are but two modes by which men are connected in society, the one which operates on individuals, this always has been, and ought still to be called, national government; the other which binds States and governments together (not corporations, for there is no considerable nation on earth, despotic, monarchical, or republican, that does not contain many subordinate corporations with various constitutions) this last has heretofore been denominated a league or confederacy. The term federalists is therefore improperly applied to themselves, by the friends and supporters of the proposed constitution."

Finally it came compromise with the states was that both they & the national governmetn got tax us:

Federalist #34:

9 posted on 10/06/2003 6:03:42 PM PDT by ancient_geezer
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To: Vindiciae Contra TyrannoSCOTUS

Outstanding find! I really appreciate the material you rake up and post on FR.


10 posted on 10/06/2003 6:21:35 PM PDT by dasboot (Celebrate UNITY!)
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To: NewRomeTacitus
THe whole point of the 17th was to allow politicians to reach around state governments and use mass media to appeal to the population. This was done under the assumption that the average person had better sensibilities for his self government. Frankly, I would agree with this were it not for the fact that information is controlled, distributed and manipulated by a relatively small number of people who control the media, and hence, the public opinion. In essence, the influence of the state governments was replaced by that of the media. There is, however, one balancing feature, and that is that much of the media is controlled by big business, and that in this fashion the intent of the founders is still, to some extent, alive in the current system. I agree though that the 17th should be trashed. Under the 17th, Senators could much more readily be recalled and replaced by their states.

As for the 13th, 14th and 15th, they should never have been necessary, as their intent was inherent in the constitution. However, they were absolutely necessary to fully implement the ideas of the founders in practice.

11 posted on 10/06/2003 6:24:01 PM PDT by Held_to_Ransom
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To: Vindiciae Contra TyrannoSCOTUS; stainlessbanner; 4ConservativeJustices; GOPcapitalist; ...
12 posted on 10/06/2003 6:26:03 PM PDT by billbears (Deo Vindice)
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To: Vindiciae Contra TyrannoSCOTUS
There is another thing that needs changing regarding the members of Congress: There should not be a single member of Congress who has passed any State Bar Exam (making them an attorney). Yes, they may have studied law in college, but once the Bar is passed they are effectively members of the Judicial Branch. Therefore, they should not be allowed to serve in the Legislative Branch of government.

This foundational problem has led to atrocities such as the 13th and 17th Amendments. The founders intended for the laws of the land to be for the common man, not those who spoke Latin, and not for only those who belonged to a "club" such as the Bar. As soon as lawyers began to populate the Congress, the laws they wrote started becoming obtuse - and started moving away from the daily lives of the populace.

The damages done by members of the Bar to this nation are incalculable.
13 posted on 10/06/2003 6:26:19 PM PDT by 11B3 (Old enough to remember the real America, young enough to fight to bring it back.)
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To: Alberta's Child
"Before the 17th Amendment, states selected their U.S. Senators however they damn well pleased. Most Senators were elected by the state legislatures, though I believe some states had direct Senate elections among the voters. If a state wanted to have the governor select the Senators, then nothing would have prevented it from doing so."

The original wording of Article I, §3 was "chosen by the legislature thereof". Popular election of Senators didn't start until the late 1800's when numerous state legislatures were having trouble electing the Senators. By the time the 17th was proposed, I think perhaps 15-20 states already had popular elections.

14 posted on 10/06/2003 6:35:27 PM PDT by Ready4Freddy (Veni Vidi Velcro)
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To: 11B3
"...once the Bar is passed they are effectively members of the Judicial Branch. Therefore, they should not be allowed to serve in the Legislative Branch of government."

Clubbiness has always been a fault of the Judiciary. That's how they rightfully earn the oligarchy reference. That the "upper class" adhere to the illusion of genetic superiority has always mystified me. Much like America would carry on without the services of illegal immigrants, it would be better cared for with people who were more knowledgable than the lucky folks with money and selfish agendas. Class warfare, at this point, is only self-destructive when the barbarians are settling in wherever they want to. Get over yourselves, wealthy people, and help correct these problems before there's nothing left to defend.
15 posted on 10/06/2003 9:02:16 PM PDT by NewRomeTacitus (That's my rant and I'm sticking to it.)
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To: Vindiciae Contra TyrannoSCOTUS
Spot on.

This is a keeper. I hope it gets even wider exposure.
16 posted on 10/06/2003 9:44:04 PM PDT by Maelstrom (To prevent misinterpretation or abuse of the Constitution:The Bill of Rights limits government power)
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To: Held_to_Ransom
Also consider with the 17th Amendment, the Senate becomes redundant with the House of Representatives. The Senators are more powerful for having the same amount of power in the House concentrated in fewer hands.

It's a nation killer...through slow poison.
17 posted on 10/06/2003 9:47:58 PM PDT by Maelstrom (To prevent misinterpretation or abuse of the Constitution:The Bill of Rights limits government power)
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To: Maelstrom
I see a close-to-fair balance when taking the hugely abused relegation of bills to committees into consideration. The pecking order system will not be denied. Of course, being a romantic fool, I defy it anyway.
"What would the founders do?" should be the first path of inquiry taken as a matter of course.
18 posted on 10/06/2003 10:07:18 PM PDT by NewRomeTacitus (Democracy is an unatainable ideal because of human nature. Settle for a representative Republic.)
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To: Maelstrom
Also consider with the 17th Amendment, the Senate becomes redundant with the House of Representatives. The Senators are more powerful for having the same amount of power in the House concentrated in fewer hands.

I don't know if I see that point. The 17th was supposed to keep Senators from building up a large stable power base and riding along for decades, but it hasn't stopped them.

What it has produced though are cases where a state might have a majority legislature in one party, yet Senators of another party. Again, not all that fatal. It may be easier for a Senator to buy a seat, as he can do it direct from the people, but a wealthy candidate undoubtedly could also buy a state legislature in many cases.

The Senate was always the dominant house for the reasons you cite. It allowed the smaller states more control than any proportionate system would, and it still does. This, however, has not been a bad thing in many ways. One can make the argument against it though, but I believe the original concept sound in that regard.

19 posted on 10/06/2003 10:45:26 PM PDT by Held_to_Ransom
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To: billbears; Vindiciae Contra TyrannoSCOTUS
Bookmarked. Thanks for the great post, VCT. You are doing a yeoman's job on these threads. Keep up the good work.
20 posted on 10/07/2003 5:31:16 AM PDT by stainlessbanner
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