The 17th Amendment, Federalism, And Reversing History

Would returning to indirect election of Senators really have a significant impact on the growth of the Federal Government? Probably not.

Ed Morrissey at Hot Air is the latest blogger to weigh in on the debate about the so-called Repeal Amendment and, like me, he’s skeptical although for different reasons:

This sounds good in principle, but could be a procedural nightmare once enacted.

(…)

Let’s say for argument’s sake that Congress approves and the states ratify the amendment. What happens when Congress passes a law? How long do the states have to get two-thirds of the legislatures to demand repeal? Within the same session? Four years? Decades? Does it proceed along the same lines as a Constitutional amendment, where the states have seven years to ratify a veto? If the time is limited to the current session, most state legislatures won’t have time to react, and future Congresses will simply put off most of their controversial measures until lame-duck sessions.

If it isn’t limited to the same session, then this will remove a great deal of certainty and stability from the American legal system and to acts of Congress, which is after all the people’s branch. Consider tax laws on which no one could rely, regulatory and deregulatory efforts that could take years to clarify, and then think how investors both here and abroad will react in that environment. And that isn’t even getting to the budget, which appears subject to this amendment as well. The states could force a shutdown of the federal government. This seems like a prescription not just for gridlock and instability, but also an invitation for an expansion of power for the executive branch to run the federal government by executive order and agency power.

Instead of this unwieldy, potentially problematic scheme, Morrissey proposes something has been something of a cause celebre on the right for several years now, repeal of the 17th Amendment:

Those who want to see government restrained by the states would do better to repeal the 17th Amendment. Instead of requiring popular votes for Senators, go back to the original purpose of the Senate and let the states choose how to pick their Senators instead. Some might keep the popular vote in place, but those states concerned about federal encroachment on state sovereignty might return to having appointments made by the state legislatures, or governors confirmed by the legislatures. That would make the state itself the constituent of each Senator, and they could overrule the populist inclinations of the House by thwarting encroaching legislation.

Effectively, the 17th Amendment completely abrogated the intentions of the Founding Fathers when they wrote the Constitution. Originally, the House of Representatives was intended to represent the people. It was popularly elected every two years. To be a member of the House of Representative, you only had to be 25 years old and live in the state in which you ran for office. The Senate, on the other hand, was intended to represent the states. Each state received two members regardless of its size or population. To be a member, you had to be at least 30 years old. More importantly, however, Senators were chosen by the Legislatures of their respective states, not by popular election.

Some would say that the system worked. The Senate was intended to be a check on the popular will represented by the House of Representatives, and it acted as such. During the time that Senators were chosen by Legislatures, the Senate was populated by men such as Daniel Webster, Stephen Douglas, John C. Calhoun, and countless others who understood that they were representing the interests of their home states. Had the Southern states not seceded in the wake of the Election of 1860, their control of the Senate would have prevented the newly empowered Republicans from passing much anti-slavery legislation, not that this should be considered a good thing of course.

By 1912, though, Populism was sweeping the nation. Indirect election of Senators was seen as undemocratic. Hence, the 17th Amendment passed easily. Since then, the Senate has been a shadow of its former self. Though the filibuster and similar procedural rules serve as a check against rash action, the Senate is as much subject to the popular will as the House of Represenatives. This has coincided with the virtually unchecked expansion of the state and, more importantly, the unchecked expansion of the growth of the federal goverment.

Putting the selection of Senators back in the hand of state legislatures, it’s argued, w0uld return the Senate to the institution it was prior to 1914, when Senators were appointed by state legislatures rather than being subject to a popular vote. The idea of repeal of the Seventeenth Amendment isn’t a new one. Bruce Bartlett made the case over at NRO nearly six years ago, Glenn Reynolds did the same back in 2005, and George Will did it just last year. Not surprisingly, Will summarized the basic argument most succinctly:

Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 — the progressive (in two senses) reduction of the states to administrative extensions of the federal government.

Severing senators from state legislatures, which could monitor and even instruct them, made them more susceptible to influence by nationally organized interest groups based in Washington. Many of those groups, who preferred one-stop shopping in Washington to currying favors in all the state capitals, campaigned for the 17th Amendment. So did urban political machines, which were then organizing an uninformed electorate swollen by immigrants. Alliances between such interests and senators led to a lengthening of the senators’ tenures.

The Framers gave the three political components of the federal government (the House, Senate and presidency) different electors (the people, the state legislatures and the electoral college as originally intended) to reinforce the principle of separation of powers, by which government is checked and balanced.

Returning the Senators to their previous role as servants of their state rather than servants of the people, repeal advocates believe, would make the Senate far less likely to approve legislation that constitutes an encroachment of Federal power over the states, or which imposes costs of the states and obligates them to fulfill Federal mandates.

It’s a provocative argument, but there’s something missing.

From a procedural point of view the 17th Amendment is certainly one of the factors that has made the expansion of Federal power, and the erosion of Federalism, more easy to accomplish. Returning to indirect election of Senators *might* have a positive impact, but that will only happen if the Senators elected have a proper understanding of their role under the Constitution, and if the state legislators appointing them have that same understanding.

Furthermore, as I noted last week, the extent to which the relationship between the Federal Government and the states has changed is due to much more than the manner in which we select Senators:

The Civil War itself was the beginning in a change in the way Americans thought of their country. Where it used to be the case that people thought of themselves primarily as residents of their state, Americans today tend to think of themselves as Americans first. On top of all that, a long history of movement from place to place that people don’t necessarily think of the state where they live as “home” any more. For better or worse, going back to the Founders “original intent” on this issue is impossible simply because so much has changed over the past 223 years.

The goal which Will, Morrissey, and the others seek to achieve, and one which I generally share, involves more than something as simple as repealing a Constitutional Amendment. It would have to involve turning back the clock on history in a manner that doesn’t strike me as very easy, and which may not even be possible. We can return to the procedural methods that the Framers first put in place, but that doesn’t mean that the philosophy that will guide the Senate, or the rest of the Federal Government, will change in any significant respect.

FILED UNDER: Congress, Law and the Courts, Tea Party, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Since then, the Senate has been a shadow of its former self.

    By what metric?

  2. sam says:

    “We can return to the procedural methods that the Framers first put in place, but that doesn’t mean that the philosophy that will guide the Senate, or the rest of the Federal Government, will change in any significant respect.”

    As I argued, senators appointed by legislatures would be under extreme pressure to insure that federal money flows to the state and laws and regulations benefiting home-grown interests be passed. How this state of affairs would diminish the power of the federal government is hard to see. One might argue that state A would counter any move by state B to do X– more likely (damn near an absolute certainty), as I argued, the senators of A and B will horsetrade (as they do now) so that if B gets X, A gets Y.

    More fundamentally, I don’t think the American people would stand for their disenfranchisement vis-a-vis the elections of senators. Every American now living (I’d bet) has had the right to vote for his or her senator. I find it hard to believe they’d give up that right, high falutin’ and pious references to past notwithstanding. Besides, most Americans (again, I’d bet) have a lower opinion of their state government than they do of the federal government. Try convincing them to let those bozos pick their senators.

  3. Jim Henley says:

    I like that right-wingers abhor direct election of Senators for its dangerous populism AND “unelected judges” ruling in favor of gay marriage equality for its offense against the popular will.

  4. Tano says:

    Perhaps we should get away from popularly electing the President as well, given that there is no provision in the Constitution for popular election. It is just up to the individual state legislatures to choose the method by which their electors are chosen (as the good Republicans of Florida taught us back in 2000 when they threatened to annul the results of the election if the recount went to Gore, and just send the Republican electors under their own Constitutional authority).

    The modern American right is rapidly approaching a crucial crossroads. They have revived themselves by drinking deeply at the well of populism – including rustling up a lot of the toxic sludge that always lines the bottom of that barrel, while at the same time they have their normal, ongoing elitist disdain for the actual voices of the actual people. This issue brings it to a head – shall they really move forward with an effort to disenfranchise the people? Do they really imagine that this is a resonant issue – that any group of voters will willingly give away their right to vote for their Senators to a bunch of corrupt pols in the state house?

    I am in a state of shock to see smart people actually giving this the time of day…

  5. Alex Knapp says:

    This has coincided with the virtually unchecked expansion of the state and, more importantly, the unchecked expansion of the growth of the federal goverment.

    This is nonsense. By what metric? If you’re a woman or a minority (read: over 50% of the population), state power has ERODED SIGNIFICANTLY since the adoption of the 17th Amendment.

    Since the passage of the 17th Amendment, the draft has been eliminated — a major check on state power.

    Since the passage of the 17th Amendment, the power of the state has eroded in matters of marriage, divorce, out-of-wedlock sex, and contraception — a major step forward for personal liberty.

    Since the passage of the 17th Amendment, the Federal government has been much more aggressive in curtailing actions of state legislators that preserved favored local monpolies.

    Since the passage of the 17th Amendment, free trade with other nations has signficantly expanded.

    In timelines that aren’t simply, “since the 19-teens”, also consider that:

    Taxes are lower than they were just 30 years ago.

    Regulatory agencies have less power than they did just 30 years ago — see, e.g. the telecom, trucking, and airline industries.

    The Supreme Court now recognizes the 2nd Amendment as protecting the right to keep and bear arms.

    Don’t get me wrong, since the 19-teens, Federal power has expanded in some ways. It’s been eroded in others. But there are many multi-variate factors involved in what the Federal government involves themselves in, and Doug, I absolutely DEFY YOU to demonstrate that the direct election of Senators has any relationship to any of it.

  6. Alex,

    It’s worth noting that prior to the end of World War II there was no such thing as a peacetime draft in the United States so it’s not really accurate to say that there’s any connection at all between that and the 17th Amendment.

    Many of the other things you listed have come about not because of Congressional action but because of Court rulings and a more activist Federal judiciary. Again, not really related to the election of Senators.

    At the same time, since 1914 we’ve seen the New Deal, the Great Society, and various other expansions of the power of the Federal Government.

    Finally, I think you’re misconstruing my point. I am not saying that all of this happened because of the 17th Amendment, which is why I specifically said that repealing it is unlikely to change anything.