Opinion Forum

Repeal the 17th Amendment

May 26th, 2009

Does it strike no one else as odd that we have what amounts to two Houses of Representatives? Does it strike no one else as odd that with two (unequal) Houses that even the least populated states get the same representation in the Senate? Why would the framers have done something so redundant when nearly everything else they did seemed to have been done with such clarity and wisdom?

While the first two questions are largely rhetorical, the answer to the third question is that the framers did not establish the Senate in the style with which we have become familiar. It might actually come as a surprise to some that senators were not elected by popular vote when this republic was established. The Senate was intended as a “house of ambassadors” for the states, and it was for this reason that the “ambassadors” were appointed by their respective state legislatures.

The 17th amendment reads:

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.

Originally, it (the relevant portion of Article I Sec 3) read (italics added):

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Some would argue that prior to April of 1913 (when the 17th amendment was ratified) that many states were already holding popular elections for Senate seats, and that this amendment was just an extension of that line of thought. While it may be true that it was a logical extension, it does not change the fact that the Constitution mandated otherwise, and it does nothing to change the reasoning behind the way the Senate was originally established. We have probably all heard our mothers say “If your friends wanted to go jump off a bridge, would you do it too?” In other words, a bad idea is a bad idea, irrespective of its level of popular support.

The lure of the Constitution for the 13 new nation states at the time of its ratification was that the states would retain significant autonomy, and further that the states would have a significant voice in the operation of this new federal government (as opposed to a national government).

From Federalist Paper #39 (authored by James Madison):

The act therefore establishing the Constitution, will not be a national but a federal act.

In today’s parlance, the words “national” and “federal” seem to have become synonymous, but common parlance is not the driver of legal definition, and they do not mean the same thing. What did Madison mean when he wrote this? It would be more instructive for you to read Madison’s words than to read my opinion of them, so click the above link to read them.

In Article IV Sec 4 of the Constitution:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The states (not “the people”) are guaranteed a republican form of government. In a republican government, the interested parties have a voice in the operation of the government. The 17th Amendment denies that voice to the state governments.

The Senate has ultimate authority in four important areas:

1. Ratifications of treaties (Article II Sec 2) — “He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

2. Appointment of ambassadors — (Article II Sec 2) “…and he [the president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”

3. Appointment of Federal Judges and other officers (from the same clause establishing the senate’s role in the appointment of ambassadors).

4. The sole authority to try impeachments (of the president, federal judges, etc; this power is enumerated in Article I Sec 3).

It should be clear that the states were intended to retain enormous power over the operation of the federal government, especially in areas that directly affected what may be required of state governments.

The Senate, acting on behalf of its constituents (the states), was established to protect its constituents from the passions and fads of the people, and to protect the authority of its constituents from a zealous and power-hungry executive and/or judiciary via its power to ratify treaties, to appoint and impeach federal judges, and to impeach the president/vice president. Legislatively, the states (via the Senate) wield enormous power as well. While it is true that the Senate still retains all of those powers, those powers were intended to be in the hands of the states because the people, through the House of Representatives, already had significant power.

Most of us have heard of so-called “unfunded mandates,” but what are they? They are laws/directives by the federal government to the states to do certain things, and the states must pay the bill or stand to lose federal funding in other areas. Speed limit laws are one example of this, as is the age of majority when it comes to purchasing and consuming alcohol. The cynic in me sees these unfunded mandates as a back door move by the federal government to make it appear to the people that the states still retain their sovereignty. But how can the states be sovereign when they are ordered to do anything that is not specifically enumerated within the Constitution?

If the states still controlled the Senate, I expect we would have never heard of an unfunded mandate. It would be analogous to me telling you to go buy a gun and some bullets, and then ordering you to shoot yourself in the foot. You would, justifiably, look at me as if I had lost my mind.

I do not delude myself with the belief that a Senate controlled by the states would not be subject to corrupting influences. To the contrary, I would expect it. However, those corrupting influences and the interests of the several states would stand in opposition to the corrupting influences and powers retained by the people in the House of Representatives, and to the corrupting influences and powers retained by the executive. The more hogs that stand at the trough, the less opportunity that any one of the hogs has to get more slop than the others. I also expect that a Senate controlled by the states would largely be immune to partisanship, as the senators would be beholden to their respective states, and not to a particular political party ideology.

We repealed one ill-advised amendment. It is time to repeal another.

Articles written by Brian Bagent
Tags: Law, Senate, U.S. Constitution
Categories: History, Politics | Comments (9) | Home

9 Responses to “Repeal the 17th Amendment”

randy | May 27th, 2009 at 2:38 am

I agree but it would never happen, unfortunately.

Brian Bagent | May 27th, 2009 at 5:22 pm

IF it takes 10 years to get enough momentum to get it to happen, it would be worth it. It would restore balance to an out of control federal government.

It would also go a long way towards ensuring that supreme court nominees respected the 9th and 10th amendments.

Tom | May 28th, 2009 at 10:37 pm

Brian, I understand what you’re saying, but I’m not sure it would do that much good. If the Senate were to be elected as originally envisioned in the Constitution, as you noted, different states would work out different ways to do it. That would result in a wide variety of methods of selecting senators. Some states would undoubtedly do a good job; others, being very corrupt, would send political hacks.

I don’t see how the Senate would function better under that kind of arrangement than it does now, with senators popularly elected.

What we really need now is a Congress, including both houses, that’s a lot more honest and dedicated to good government. I would prefer to see a national good-government movement dedicated to throwing the rascals out and replacing them with a new bunch. It probably wouldn’t require any more national energy than repealing the 17th, and I think it would have more certain positive results.

Brian | May 29th, 2009 at 1:25 am

As originally ordered in the constitution, senators were to be elected by the state legislatures of their respective states. Pretty cut and dry. Simply repealing the 17th amendment would have things revert back to how they were, as the rule is already spelled out.

Yes, I would expect that there would be chicanery in some states, as there probably was all the way back to Elbridge Gerry. The states were guaranteed this power as a precondition to even joining the union, and it is where the power should reside. Only two states have been admitted to the union since the 17th amendment was ratified. It should go back to the original agreement.

Briann | September 16th, 2009 at 10:18 am

“If the Senate were to be elected as originally envisioned in the Constitution, as you noted, different states would work out different ways to do it. That would result in a wide variety of methods of selecting senators. Some states would undoubtedly do a good job; others, being very corrupt, would send political hacks. ”

Yes, but at least then the method used *would* be up to the individual states. If it didn’t work out, the state would have nobody to blame but themselves, and would also have the option of changing the method of selection to a better one. At worst, there would be no change to the present system; at best, there might be some improvement.

Tom | September 16th, 2009 at 12:49 pm

I can see the “there might be some improvement” argument. Maybe so, but maybe not. It’s a bit like junking the electoral college system of electing presidents — one reason most people are very reluctant to do it, despite the logical appeal, is there’s no way to predict how a replacement system would evolve. In both cases, it could turn out to be a lot worse that what we have now.

Brianna | September 16th, 2009 at 1:40 pm

“It’s a bit like junking the electoral college system of electing presidents — one reason most people are very reluctant to do it, despite the logical appeal…”

I’m not willing to do it, and I don’t think there is a logical appeal. “No taxation without representation” never meant that the colonists wanted to control every aspect of government; it just meant they wanted to have a say in it. Many things that are decided by popular vote now (outright for the senate, de facto for the president b/c most states base their EC vote on the popular vote) were never meant to be decided by popular vote when this country was founded, just as many things completely/partially controlled by the federal government now (education, health care) were originally meant to be left in the hands of the states. As things stand now, if a state *wants* to determine its EC vote by the popular vote, that’s fine. And as it is, there are very few times in history when the president won the EC vote but not the popular vote. But just there are cases where a judge is allowed to overrule a jury verdict or sentence if he thinks the jury is totally out of line (rare, but happens), I think the EC should exist in order to overrule the popular vote in case they think the public is totally out of line (and if you think THAT never happens, you don’t know history).

Tom | September 16th, 2009 at 2:45 pm

Brianna, I’m with you. I can see the logical appeal of direct popular election of the president/vice president, but you make good points against it. Personally, I’m happy to see it stay the way it is. We may grumble about it now and then, but by and large it has worked pretty well.

Tom | January 28th, 2010 at 7:44 pm

I just read an interesting article by Tony Blankley making the case for repealing the 17th Amendment in the context of strengthening the 10th Amendment as a result. One key part of his argument is that Washington-level corruption of senators would become state-level corruption. That’s a pretty sad commentary in itself.

I don’t necessarily agree with Blankley, but the argument is worth thinking about.