> “The 17th might make the 28th moot.”
I think you meant “The ***repeal of the*** 17th might make the 28th moot”.
> “Why would a state send back a person who exempts himself from the laws imposed on the rest of the state? That person would become a pariah in his own state. A state-controlled Senate might not let clauses like that get by.”
I’ve asked Publius to join here because he has one of the sharpest memories on the subject of Article V that I know.
I am reading the history of the 17th amendment and indeed it was an Article V process that had 31 states signed on fully and another 2 states getting ready to sign on. It was close to being a done deal according to Article V. Then Congress took over by introducing the 17th proposal and eventually sent it out for ratification choosing state conventions as the mode of ratification rather than legislatures; the 1st and only time that was ever done.
The takeaway from the preceding paragraph is that the the electorate was very concerned about who their state legislators would appoint as US Senator. The fact that appointments of US Senators were staggered caused the subject to come up frequently.
And the call for a popular vote for US Senators started with a constitutional amendment proposed as early as 1828. In fact one of the original founders to the Constitutional Convention proposed a popular vote for US Senators and it was voted down by a very wide margin. So the idea behind the 17th Amendment has a very long history.
To address your question, let’s examine the history a little further. History records that elections for state legislators revolved inordinately around the question of WHO would the state legislator vote to appoint to the US Senate. During state campaigns, people became more concerned with who the state candidate would vote to appoint rather than focus on the qualifications and background of the candidate himself. So they would end up electing bad people to their state legislature for the sole reason that a candidate would tell them a name they wanted to hear. Further, in order for the voters to get the message across to state candidates of WHO THEY WANTED TO SEE APPOINTED to the US Senate, non-binding primaries or ‘straw-votes’ would be held where voters would vote for a name they wanted to see appointed to the US Senate. And this happened in many states; it wasn’t isolated.
I don’t think voters back then were stupid but certainly they were concerned that their will expressed in the US House of Representatives went nowhere because I imagine they could see that US Senators were very powerful and could thwart their will. Voters were connected to the US Senator only through their state legislator. So they were frustrated. Today we see that having millions and millions of voters for just one US Senator allows the US Senator never to get close to the people. The voters only know their US Senators via slick ad and media campaigns as well as dirty tricks played on them by their opposition.
Think about it for a minute. The population has grown enormous and yet the number of US Senators has remained a low number.
Of course the divide between the US Senators and the electorate has widened greatly with the great ratio of voters to US Senators. As Ted Cruz says all the US Senators have “an issues page” and they all say the same thing, like a script. We know they are all phony because they say one thing and do another.
So the 17th was a wrong move borne out of voter frustrations. But the original Constitution pertaining to US Senators wasn’t working well either. Something had to be done. Every time a candidate ran for election as a state legislator, he would be greeted by mobs of voters who threatened him “You’d better vote to appoint X or you’re history!”, And such candidates would cut deals with US Senators or US Senate candidates so they could gain something for themselves with their vote. Corruption followed. I don’t think this historical dynamic would change if the 17th were to be repealed.
So something is needed to alleviate voter frustrations with their state legislators for appointing the US Senators they want to see appointed.
I think ‘recall’ is the best way for voters to vent their frustrations.
One recall of a US Senator was tried in 1967 against Frank Church but the Supreme Court ruled that recalls of US Senators are unconstitutional. Therefore, the only way to get a recall of a US Senator is to amend the Constitution.
I think the corruption is so thick and there is so much money to be passed around that repealing the 17th will simply extend the corruption from Washington DC to state legislatures.
A voter referendum to recall a US Senator would serve to circumvent state legislatures that might largely be bought off.
In 1912, enough states sent applications for an Amendments Convention dedicated to the direct election idea to Congress that it became necessary to call such a convention.
The House had always passed a direct election amendment by the necessary two thirds margin, but the Senate had always balked. Now that a convention was becoming probable, the Senate feared the convention would write an amendment that would require that the entire Senate be elected directly all at once, not phased in by senatorial class. The Senate slam-dunked an amendment that phased in direct election, and the House slam-dunked it also.
A number of states had appended Discharge Clauses to their applications in the event that Congress handled the situation on its own. Once that happened, Congress invoked the Discharge Clauses and stated that the number of applications from the states had fallen below the two thirds threshold. That's how Congress avoided a convention.