Repeal 17th Amendment

THE SEVENTEENTH AMENDMENT: SHOULD IT BE REPEALED? Why The Direct Election Of Senators May Have Been A Serious Mistake, And One That Helps Explain The Supreme Court's States' Rights Views By JOHN W. DEAN ---- Friday, Sep. 13, 2002

Federalism - the allocation and balancing of power between state and federal government - has emerged as a central concern of the Supreme Court under Chief Justice William Rehnquist. Slowly, but steadily, the Rehnquist Court has been cutting back federal powers, and protecting state's rights.

Many have wondered what the Court is doing. Why are the Court's five conservatives - the Chief Justice himself, along with Associate Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas - creating this new jurisprudence of federalism?

The answer is simple: they are seeking to fill a void in our constitutional structure, a problem created early in the Twentieth Century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the Seventeenth Amendment.

The Amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but democratic. And it is a change whose aftermath may haunt the Twenty-first Century.

Divisions of power are rooted in our Constitution. Experience had taught the Framers the dangers of concentrations of ruling authority, resulting in their ingenious template of checks and balances, with divisions and distributions of power.

Ultimate power in a democracy resides with the people. We are not a pure democracy, however, but rather a confederated republic (one that features, as well, county and local political subdivisions).

Thus, while there is national sovereignty, there is also state sovereignty. Power has been so divided and spread for one reason: to provide for and protect the highest sovereignty - that of each individual citizen.

Only fools reject the wisdom of this founding principle of defusing power. Yet from the outset there has been debate regarding the appropriate allocation and balancing of these powers. The debate has focussed on not only whether a particular matter should be dealt with at the state versus the national level, but also on how these allocations are adjusted from time to time.

Of late, for example, along with laments for those who tragically lost their lives during the September 11th terrorist attack, there has been widespread concern with new realignments of federal/state powers that have followed in the name of homeland security.

Most significantly, as I discussed in a previous column, Washington is assuming powers that have only previously existed during a Congressionally declared war.

In designing our Constitutional system, the Framers sought to remedy the limits of the Articles Of Confederation, which created a loose association of states with little central power. The new system, they decided, ought to feature a better allocation of powers - and the federal government should have the powers "necessary and proper" to perform its envisaged functions. The will of the People should be the foundation, and the foundational institution should be the law-making legislative branch.

Unsurprisingly, the Revolutionaries were not very impressed with most aspects of the British model of government. They rejected parliamentary government, with its king or queen and three estates of the realm (lords spiritual, lords temporal, and the commons).

But one feature of the British system, the Framers did borrow. That was bicameralism - a word coined by Brit Jeremy Bentham to describe the division of the legislature into two chambers (or, in Latin, camera).

The British Parliament had its House of Lords as the upper chamber and the House of Commons as the lower chamber. Citizens selected members of the House of Commons. The members of the House of Lords, in contrast, were those who had been titled by a king or queen (lords temporal) and the archbishops and bishops of the Church of England (lords spiritual).

Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the Framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by not directly, but by the legislatures of the states. Each state would have two Senators, while Representatives would be apportioned based on population.

James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."

The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:

In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.

The system as designed by the Framers was in place for a century and a quarter, from 1789 until 1913, when the Seventeenth Amendment was adopted. As originally designed, the Framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.

There is no agreement on why the system of electing Senators was changed through the enactment of the Seventeenth Amendment. But there is widespread agreement that the change was to the detriment of the states, and that it played a large part in dramatically changing the role of the national government.

Before the Seventeenth Amendment the federal government remained stable and small. Following the Amendment's adoption it has grown dramatically.

The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the Seventeenth Amendment (along with the Sixteenth Amendment, which created federal income tax and was also adopted in 1913) that was the driving force behind federal expansion.

The Amendment took a long time to come. It was not until 1820 that a resolution was introduced in the House of Representatives to amend the Constitution to provide for direct elections of Senators. And not until after the Civil War, in 1870, did calls for altering the system begin in earnest. But forty-three years passed before the change was actually made.

This lengthy passage of time clouds the causes that provoked the Amendment to be proposed and, finally, enacted. Nonetheless, scholars do have a number of theories to explain these developments.

George Mason University law professor Todd Zywicki has assembled an excellent analysis of the recent scholarship on the history of the Seventeenth Amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.

There have been two principal explanations for changing the Constitution to provide for direct election of Senators. Some see the Amendment as part of the Progressive Movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall, and referendums.

Others, however, believe the Amendment resulted from the problems the prior Constitutional system was creating in state legislatures, who under that system were charged with electing Senators. These problems ranged from charges of bribery to unbreakable deadlocks.

Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single Senator, not the Constitutionally-mandated two.

Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the Seventeenth Amendment as part of the Progressive Movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive Movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) - so that direct democracy as an empowerment of the poor might not have been one of its true goals.

What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a Senator - a far easier remedy than the burdensome process of amending the Constitution that led to the Seventeenth Amendment.

Fortuntely, Professor Zywicki offers an explanation for the Amendment's enactment that makes much more sense. He contends that the true backers of the Seventeenth Amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the Framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel - money.

This explanation troubles many. However, as Zywicki observes, "[a]thought some might find this reality 'distasteful,' that does not make it any less accurate."

Those unhappy with the Supreme Court's recent activism regarding federalism should considering joining those who believe the Seventeenth Amendment should be repealed. Rather than railing at life-tenured Justices who are inevitably going to chart their own courses, critics should focus instead on something they can affect, however difficult a repeal might be.

Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money - decidedly a good thing.

Returning selection of Senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the Framers. For progressives - who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process - returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.

Profession Zywicki likes this idea as well, but is probably right in finding repeal unlikely. He comments - and I believe he's got it right -- "Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the Seventeenth Amendment."

The popular election of senators completely removes states from the federal government. It makes the Senate nothing more than a glorified house... the Senate because nothing more than individuals controlled by parties and not beholden to any principle other than party loyalty.

Senators were to be elected by state legislatures, and could be recalled by them or the state governors at any time. So a Senators primary responsibility was to represent the state's desires and interests. Once they became popularly elected, the state now had no say in the matter.

The only course states now have is for Governors basically to beg the federal government not to do anything, the have no ability to enforce the states desire or need. A governor or state legislature cannot order or threaten recall of a senator if they break rank with the states needs or desires for something the senators party desires. Recall was instant and real threat, the idea that you will recall a popularly elected senator is ludicrous, it doesn't happen.

Senators are now owned by special interests that may or may not even have interests in the states they represent. If a senator got elected because of big money from another state, do you think his loyalties will be with his state on voting day, or with the money that will help him win election again? The 17th ammendment has been an absolute disaster and needs to be repealed, unfortunately most americans don't comprehend and don't want to comprehend the absolute neccessity of states rights and representation in the federal government to their own freedoms, because they believe their direct voting is more "fair" and democratic, when in fact it guarantees that the federal government will continue to expand its power and that states and individuals will continue to lose theirs.

I posted this over here, but what the hell, I think folks ought to know it over here, too:

Dean writes,

Professor Zywicki... contends, first, that explaining the Seventeenth Amendment as part of the Progressive Movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive Movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) - so that direct democracy as an empowerment of the poor might not have been one of its true goals.

Dean doesn't offer us Prof. Z's proof that "interests" wanted the direct election of Senators. So I won't go there. However, the above paragraph lights up a hole in the theory:

From the way Dean puts it, Prof. Z assumes that there was no opposition to the 17th Amendment. There was tremendous opposition to the initiative, referendum and recall. In fact, that opposition to it was so fierce that the movement's ambitions for federal application died. Its only hope was to go the route of the direct election of Senators: State by State.

Recall that by the time the 17th amendment was adopted, most of the States had already taken up the practice. They tried the same with the recall & etc., and failed.

There was opposition to the 17th amendment -- that unfortunately failed.

Prof. Z is wrong: it was the progressives that pushed and implemented the 17th amendment. Here's a quotation from a primary actor in the movement:

The American people are right in demanding that New Nationalism, without which we cannot hope to deal with new problems. The New Nationalism puts the national need before sectional or personal advantage.
- The New Nationalism
by Theodore Roosevelt
August 31, 1910
I believe in the election of the United States senators by direct vote. Just as actual experience convinced our people that Presidents should be elected (as they now are in practice, although not in theory) by direct vote of the people instead of by indirect vote through an untrammeled electoral college, so actual experience has convinced us that senators should be elected by direct vote of the people instead of indirectly through the various legislatures.
-A Charter of Democracy
by Theodore Roosevelt
February 21, 1912

Jim, you wrote,

The 17th changed all that. Suddenly, we are no longer a republic, we are a "democracy" ...

I agree with the sentiment, but I disagre with the conclusion.

Actually, the 17th amendment has deteriorated "democracy." The irony is that the "progressives," who promoted "direct democracy" (power to the people, and other such bong fuel), actually destroyed it with the 17th amendment.

The direct election of Senators has destroyed the relationship between the common voter and his local representative.

Direct votes for Senators bypass the State legislature, which thereby divorces constituents from their local representatives. This vile dagger cuts both ways: since voters don't give a damn for their local reps, the local reps don't give a damn for the voters.

It is a horribly counter-productive system. But don't go looking for the "progressives" of today to look for change. By removing the people from the equation, this system has served them marvelously: the better part of 80 years of Democratic control of the Senate.

The 17th amendment, supposed to make "democracy" work, has destroyed it. Now 10% of the electorate control the States, and 40% of the States control the Congress.

I say to Bryan, Roosevelt, Wilson and their constituent fools, "eff me"? Eff you.

Huck, that's beautiful, but you know what's funny about the 19th is that after all the bluster, it changed nothing. The chicks voted no differently from their fathers.

They extended the electorate, but the great moral awakening that was supposed to follow feline enlightenment turned out to be just another cheap seduction. They're as bad as us!

That being said, they might as well have the vote. At least it shut up a good lot of the more vocal sisters.

Fecetious as ever, I'm serious about this. It didn't change a damned thing: You just shoulda seen the castrated faces of the progressive clergy when they saw virtue drowned in chick votes for Warren Harding...

Quite a mess.

Taft had it right from the beginning. He took a leave of absence from the issue by saying that women would get the vote when they really wanted it. Right he was. And, as he would have told you, changed not a thing.

This article was posted about two weeks ago (and it's been posted again since). If you want to you can read the Senate's own interpretation of why the amendment was passed.

One reason why the amendment was passed was that state legislatures were regarded as corrupt, and the election of Senators as particularly corrupt. Of course corruption still exists, but remember that these were the old pre-reapportionment legislatures in which one or more sparcely populated counties might have as many votes as Hartford, Cleveland, or Atlanta. Had reapportionment come first, it's just possible that indirect election could have survived the storm of the Progressive onslaught, but one or the other was inevitable, and the courts hadn't taken yet the power to enforce one man one vote.

Also, a little money went a long way in Nevada, North Dakota, or West Virginia. Farmers in some states complained that the railroads had more influence in selecting the Senators than they did. I suppose a little money still can, comparatively speaking, buy a Senate seat in a small state, but the money goes into television advertising and not into direct bribes. Actual bribery offends in a way that today's campaign contributions don't.

Zywicki's theory has a lot of problems, but I think he does carry one point. Senators themselves, those who survived reelection, grew in stature after the amendment. Every Senator became a potential President, and every senatorial election became a dry run at the presidency. This wasn't the case before direct election. And though it seems like almost every Senator has presidential ambitions, only two Senators have gone directly to the Presidency, both since the 17th Amendment -- Harding and Kennedy -- and their careers show the qualities that voters have selected Senators for: good looks and smooth, ingratiating manners. Direct election was in the interest of the Senators who would survive it and of those politicians who thought or dreamed that they could win Senate seats for themselves.

For the Progressives, popular election was the source of all legitimacy. They would have by-passed and watered down the Senate's powers if they couldn't win direct election. And that's probably the chief criticism of repealing the 17th. If Senators were again indirectly elected, they'd have to take a backseat to the directly elected House and the nationally elected President. Given the way people have thought since the Progressives, an indirectly elected Senate -- like its counterparts in Britain and elsewhere -- would find itself marginalized and stripped of power. On the other hand, we wouldn't have so many Senators clamoring for television time and scheming to become President.

One idea that came up on the previous thread was increasing the size of the House to 1000 or 3000 members. Given such a large body, elections would cost less per seat. Big contributions and television money would matter less. Representatives would be closer to the people and have fewer perks. There would be fewer career legislatures and more openings for outsiders. At least that's the theory. It seems to be born out by the experience of some of the older states that downsized their lower houses and found politicians becoming more professional, more ambitious, and more favorable to higher taxes.

Thanks for the guidance, as ever.

I think Prof. Z is on to something here regarding corruption. The Senate history link you gave says that "Nine bribery cases were brought before the Senate between 1866 and 1906." Honestly, that's not very many. I happen to know that from 1906 to 1912, there was one bribery cae brought (and three were from 1904-1906; therefore from 1866 to 1904, there were six). I would surmise that corruption has morphed into different channels. I can't say for sure, but humans are humans, and Democrats are Democrats.

I'm sorry I missed the other thread. I recall bumping it for later reading that I never caught. Anyway, to increase the representation in the House wouldn't change the delilatory effect of the 17th. The House is a Federal office; the Senate is intended as a State office. Don't matter how many Congressitters there are if the Senate is a Federal slave as well. Besides, having more Congressmen will only increase the value of individual controllers of minority-run elections. A population increase in the House would only result in more incumbants with more job security than ever.

You are correct to assert that State legislatures were unfairly balanced towards rural districts. But that problem had been corrected by the time the 17th was enacted. In that sense, the amendment was a solution to a problem that was already resolved. Didn't Robert LaFollette, Hiram Johnson, and Woodrow Wilson succeed in their reforms in their States before its enactment? That is, hadn't the railroads already succombed to normal politics?

That Senate history link reads like Hofstadter's "Age of Reform." The most interesting thing to note, aside from the fact that Dr. Z is wrong, and that it was essentially a Populist Party measure, is that the House capitulated in 1912, an election year. That particular election year featured our dear friend, T. Roosevelt, who was mouthing off about direct democracy. He was wrong, and the 17th Amendment is still wrong.

You correctly note that the only Senators to have gone directly from the Senate to the White House came after the 17th. Certainly, but that's only a reflection of the changed nature of a Senator than of the purpose of the Senate. You couldn't have put it better than, "On the other hand, we wouldn't have so many Senators clamoring for television time and scheming to become President." Lol!

Your post is full of and demanding of thought. Thanks.

And, "Down with the 17th!" (and if it makes Huck happy, take it away from the chicks, too).

Statistically most women vote Dem( unless the Republican guy is far better looking). The ones that vote Republican tend to fall on the "moderate" side. I believe more or less in the libertarian view that the government's proper role is to kill invaders and criminals and enforce property right and little else. That view doesn't go well with the security over liberty and altruism mindset inherent in the feminine nature. I don't believe there should be any Democracy or elections at all elections give the non productive a legal way of robbing the productive but since we have them they'd go better without women voting. Democracy is also inherently collectivist and egalitarian. I favor an old style monarchy or some kind of Heinleinian military government. Im not an anarcho capitalist I take the Hobbesian/Randian pessimistic view of human nature.

Also Bill Hicks is a serious leftist but he had a good comedy routine which started out about how Ted Bundy's trial was swamped with Women trying to give him love letters and wedding proposals. Thats really f***** up if you listen to that a few times in a row you'll start not only wishing to abolish the 19th but that marriages should be arranged.

You are correct to assert that State legislatures were unfairly balanced towards rural districts. But that problem had been corrected by the time the 17th was enacted.

That brings up an interesting question. It seems like reapportionment was something that ought to have been on LaFollette's mind. But the big Supreme Court reapportionment case (Baker v. Carr, 1962) didn't come up until three generations later. Until then, the constitutions of states like Georgia, Tennessee and Connecticut apportioned state senate and even state legislature seats by county or town, and not by recent census counts of population. Some 36 states had reapportionment cases in the 1960s, and there was talk of calling a new constitutional convention, since neither Congress not the courts were likely to change things in the states' favor.

The populists started the ball rolling for the 17th Amendment, because farmers on the plains were likely to have little input on who their Senator would be. The Amendment probably wouldn't have gone through if big city Progressives didn't pick it up, though, as the populist movement had died away in the TR years.

As for corruption cases, it may be that the cases of corruption in Senate elections were the tip of the iceberg. Given legislative corruption in other matters, the public probably assumed there was a lot going on that they didn't know about. If you found reasons not to trust your state representatives on other matters, you might not want them electing your Senators.

If you want to understand the spirit of the times, you might have a look at David Graham Phillips 1906 Cosmopolitan articles, "The Treason of the Senate." The progressives tended to get overheated about things and opted for easy, mechanical solutions to more complicated problems, but it's hard to see how, once the Democratic momentum had been started a century before, it could have been stopped.

Had the states remained more separate, had most people identified more with their state than with the country, indirect election of Senators by state legislators might have remained. But the nation had already prevailed over the states in people's minds so there wasn't much chance of the state legislatures retaining power over the voters of the various states. The removal of the state legislatures from Senate elections may have been more an effect than a cause.

In smaller countries mayors, governors and provincial officials serve in the legislature. This guarantees that local authorities will have more power in the national government. In a country as large as ours, this tradition never caught on. In the early years, mayors and governors would have been on the road more time than they were in Washington or in their own state ... which might have been a good idea.

That David Graham Phillips article is great -- thanks!

I get a kick out of those things. In terms of its press, the progressive era can be seen as one of the best con jobs in American history. Cosmopolitan, I believe, was one of the biggest rag sheets. It's fun to go from those types of articles to, say, the American Review of Reviews. It's like switching channels from Geraldo to Jim Lehrer.

People don't realized the power of the press back then. It was tv, radio, & newspapers combined. It's difficult for a modern to appreciate the power of Hearst and Pulitzer, much less guys like Albert Shaw, Frank Munsey, and Henry Watterson who could just put forth whatever they wanted to a begging audience. Taft was taken down by the press (I have an article in a modern advertising journal that discusses his "failure of publicity"). The lead attorney in the Glavis affair, Louis Brandeis, was paid by Colliers Magazine upwards $30K, I think. Taft also got into huge trouble when he tried to bring the Postal Service into budget. It was bleeding red from 2nd class subsidies. It'd be like the FCC, back in pre-cable days, telling the networks they'd have to actually pay for their franchise... Taft needed to make up about 100mil annually. Didn't go over well, and the press that so loved to protect the consumer didn't blush when it demanded that 1st class mail consumers pay for its bills.

Senator Aldrich was the left's whipping boy back then. Historians have generally fallen in line. He was a machine politician, he was all-powerful, but he was not dishonest. Like a good politician, he left that to others... But he never, ever, traded politics for money, as David Graham Phillips chargeds in that article. Phillips didn't need any proof: just use the vile words "Wall Street" and "Interests," and that was that.

I shouldn't have used your word "apportionment," when I replied above. I ought have said "home rule" and stuck to the population shift. I don't know how apportionment went, although I do know that the 1910 census changed much.

I'm more familiar with what went on in Ohio around the time, and I think that legislative control of localities was as pernicious as slanted districting (always was & will be politics). Home rule was a reform to keep rural-dominated legislatures from controlling localities, through what was called "ripper legislation" that limited or restricted or gave franchise elsewhere. As far as apportionment went, remember that it was in this period that the population was making its swing from more than to less than half rural. The balance was tricky, and the realization of the swing trickier.

You are correct about how the movement started with the populists and got kicked in by the urban progressives. I don't know, however, that there really is any distinction between the old and the new corruption. It just morphs into something new, like Peter Angelos parading Cal Ripkin through Annapolis on the eve of a State vote on Angelos' billion dollar cut of the tobaccco deal. I don't know how my local rep voted on that.

Remember that the 17th has not just severed the voter from the State legislature, it has cut those same ties between the Congressional representative and the State legislature.

You wrote,

But the nation had already prevailed over the states in people's minds so there wasn't much chance of the state legislatures retaining power over the voters of the various states. The removal of the state legislatures from Senate elections may have been more an effect than a cause.

Don't forget "direct democracy." It was a concerted, very well-financed and well-directed movement. The people didn't support it because they thought it would enlarge the federal government. They supported it because they had been convinced that it would clean up politics. Check out the Roosevelt rhetoric -- he was convinced that direct democracy would "moralize" the nation.

New Nationalism
Charter of Democracy

Odd, and very naive.

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