Should the 17th Amendment be repealed?

[The1calledTKE]

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 20th century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the 17th 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 21st century.

Concerns about federalism, especially post-September 11
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 focused on not only whether a particular matter should be dealt with at the state vs. 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 11 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.

Creating the United States Senate: The framers' bicameralism
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 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 17th amendment was adopted. As originally designed, the framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.

The cloudy reasons behind the 17th amendment
There is no agreement on why the system of electing senators was changed through the enactment of the 17th 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 17th 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 17th amendment (along with the 16th 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 43 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 17th amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.

Two main 17th amendment theories don't hold water on examination
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 17th 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 17th Amendment.

Fortunately, Professor Zywicki offers an explanation for the amendment's enactment that makes much more sense. He contends that the true backers of the 17th 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]though some might find this reality 'distasteful,' that does not make it any less accurate."

Should the 17th amendment be repealed?
Those unhappy with the Supreme Court's recent activism regarding federalism should consider joining those who believe the 17th 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 17th amendment."

[Optimist Prime]

Direct Election of Senators is good. How is that less democratic? Its not.

[Eupolis]

Please, if you're going to copy and paste the work of someone else, at least include the author's name and other identifying source material.


The author left out what seems to be the core of his or her reasoning. The author's argument makes sense (though I don't agree with it) if you chart it out this way:

1) The original Constitution split the legislative branch into two houses; a House of Representatives, directly elected by individuals, and a Senate, in which each state was represented by two Senators chosen by the states.

2) The 17th Amendment, enacted for reasons that no one quite agrees on, gave the power to elect Senators to the public, in elections at large within the states.

3) This means that state governments no longer have a direct line to the Federal legislative process. State governments can no longer protect their interests, and they cannot count on their constitutents to know what is really going on and to put the "right" pressures on their Senators.

All of this is a problem only if you buy that #3, particularly the second sentence of #3, is a problem.

4) The U.S. Supreme Court, under Chief Justice Rehnquist, has undertaken a path of narrowly construing Federal legislative power under Article I of the Constitution to limit the sorts of things that Congress can make the States do.

Here's where the argument runs thin. Is the author proposing that a repeal of the 17th Amendment, giving the power to elect Senators back to the state governments, would change the Court's analysis of legitimate Congressional behavior? It seems from the start of the article that this is what the author is thinking about, but I think that is wrong.

What the author is really saying -- or so it appears to me -- is that the author would like states to have even more control given them than the Constitution provides even with the new trends in constitutional jurisprudence in the Supreme Court. For the author, the narrow interpretations of Federal power are not enough; the author wants to reinstate the structure of the system which put state governments in control of the Senate.

Pay careful attention to that. "State governments." State legislators would often prefer to make decisions on their own. They'd rather wield the power of government themselves, thank you very much. And that is what the author of the column wants. State-government controlled Senators would prevent a great number of federal bills from making their way through Congress. Where the federal Congress does not legislate, states are usually free to step in and make their own rules.

What's the problem with that? Well, the problem is that the United States is not as small as it used to be. "Huh?" What I mean is that you can no longer go through a day without doing something related to interstate activity. For example, what you're doing right now, reading this post, is interstate activity. The company that runs GreekChat is in New Jersey, but even if you're in New Jersey too, I wrote this in Colorado. Besides, the servers may or may not be in New Jersey.

Because the world is that much smaller, the role of the states in regulation is comparatively smaller. Oh, certainly there are lots of things that ought to be state-regulated. But at some point, in almost every realm of activity, we need consistent federal regulation (or, in unregulated realms, something to keep states' hands off) in order to make it easier for us to interact over state lines.

Sure, more complex and diverse state rules would mean more jobs for people like me, and it would sure be nice to be employed right now. But over the long run it would make life a lot harder for all of us trying to do business with -- or simply interact with -- people in different states. States have local interests that they want to protect at the expense of people in other states. We rely on the federal government to act to balance out those disparate interests, to try to make it possible for the country as a whole to be more productive. Maybe Washington is ineffective sometimes -- maybe even most of the time. But I don't see any reason to give more power to the states to protect their local interests.

[The1calledTKE]

Originally posted by Eupolis
Please, if you're going to copy and paste the work of someone else, at least include the author's name and other identifying source material.

Geezz sorry..
Here you go this is the only thing I left out.


By John. W. Dean
FindLaw Columnist
Special to CNN.com

[CutiePie2000]

I started reading this, but zoned out after the 3rd sentence.
Consequently, I do not understand what this is about?
Can someone please explain it in 2 or less sentences?
Many thanks.

CutiePie2000
~A Canadian who does not get American Politics at all.....

[Eupolis]

Originally posted by CutiePie2000
I started reading this, but zoned out after the 3rd sentence.
Consequently, I do not understand what this is about?
Can someone please explain it in 2 or less sentences?
Many thanks.

CutiePie2000
~A Canadian who does not get American Politics at all.....

Not really -- American Constitutional law tends to depend on lots and lots of insanely long sentences.

The short short version: the editorial asks whether state governments should have more of a say in federal government by allowing them to choose U.S. Senators. This was the way it was originally done, but that changed after the 17th Amendment early in the 20th Century.

Now, I'll try to sum up more of the details in a few relatively short sentences.

1) U.S. government is broken in to three branches: legislative, executive, and judiciary. We're only looking at the first one here, the legislative branch.

2) The legislative branch is broken into two "houses:" The House of Representatives and the Senate. A bill may pass the legislature only if both houses have approved it. Only then may the President decide whether to sign it to enact it into law. (If the President refuses to sign, the bill becomes law only if 2/3 of each house approves after a second vote).

3) The House of Representatives is elected, each member from a particular voting district. Each district has approximatly equal population. The number of Representatives that each state has is determined based upon the federal Census. Representatives serve two-year terms.

4) Each state gets two Senators in the Senate. Under modern law, the Senate is elected by the general population of each state. There are no separate Senate districts -- the entire state votes. Senators serve six-year terms.

5) Under OLD law, before the 17th Amendment, the Senators were elected by the legislatures of the states. So, before, the 17th Amendment, Colorado's Senators would have been chosen by the legislature of Colorado.

==

So the gist of the article is, should we go back to doing #5 instead of #4? And I say, no, because I don't want states to be overly able to assert local interests over the best interests of the country. I'm all for states managing local matters locally, if it doesn't burden other parts of the country. But the more interconnected we become, the more consistent we need a lot of the laws to be. Also, there are a lot of large-scale nationwide problems that really are best handled on a nationwide level. I'm more comfortable dealing with the evolution of constitutional doctrine through the law than I am with the huge shift in balances a repeal of the 17th Amendment would entail.

[lifesaver]

Originally posted by Eupolis

==

So the gist of the article is, should we go back to doing #5 instead of #4? And I say, no, because I don't want states to be overly able to assert local interests over the best interests of the country. I'm all for states managing local matters locally, if it doesn't burden other parts of the country. But the more interconnected we become, the more consistent we need a lot of the laws to be. Also, there are a lot of large-scale nationwide problems that really are best handled on a nationwide level. I'm more comfortable dealing with the evolution of constitutional doctrine through the law than I am with the huge shift in balances a repeal of the 17th Amendment would entail.

Understood, and agreeed, especially on the interdependence thing, but I come from the traditionalist viewpoint that we live in a representative democracy, not a direct one. (For the non-polisci kids here, that means we pick peopl to make the tough decisons for us. Thats why we dont all just go on-line and vote on wither we want to approve the new trade treaty with France). I dont believe Mr. Smith was ever really intended to go to washington. If so, the framers wouldnt have put so many restrictions on franchise, and qualifications for office. Also, when the consitiutuion was written, the only involvment in the process the eligable voter had was direct election of his Representative in the house. As you know, we still dont have direct election of the president. So you look at the totality to get the implied intent. OF all three branches, our only direct involvment is 1/2 of 1/3. They knew the masses were nuts. We get all wound up aboiut stuff and wanna change stuff, immediately. Example, post Sept 11 attempts to restrict the rights of some citizens. They knew the less the comon man was involved, the better for us all. Most of us are the most comfortable with judicial review as a method of modification. But remember, its an elastic document, created for modification. Just because its only been amended what, once in our lifetimes, doesnt mean its not a vaild method for modification. Subtract the Bill of rights (first 10 ammendments for you canadians out there, they all came in together) and its been modified by ammendment on average, once every 12 years. Something to think about.

That having been said.. I do favor the extention of franchise to women and minorities, citizens 18 and up, and the vote to those who dont own real property... I dont want people to think my interpertation of the framers intent validates then existing social attitudes of racism and sexism.

[Optimist Prime]

Originally posted by CutiePie2000
I started reading this, but zoned out after the 3rd sentence.
Consequently, I do not understand what this is about?
Can someone please explain it in 2 or less sentences?
Many thanks.

CutiePie2000
~A Canadian who does not get American Politics at all.....

Okay...States aren't like proviences because used to be they used to be the ONLY gov't people could elect, besides house of reps. If we let states run things, the British would be doing us a favor by taking us back. They have florida though. It sucks.

[Eupolis]

Originally posted by lifesaver


Understood, and agreed, especially on the interdependence thing, but I come from the traditionalist viewpoint that we live in a representative democracy, not a direct one.

This is true as a simple matter of fact; however, I do not think that the ideas behind representative democracy are overly impaired by having direct election of Senators, while numerous important policy goals would be impaired by returning to election of senators by the state legislatures.

Direct election of Senators is still representative democracy. It is no less so than direct election of Represenatives is.

The bicameral nature of the legislature is still important under the current system, because one house has propotional representation while the other does not. The proportional representation in the House of Representatives gives approximately one-fifth of the votes in the House to California. But in the Senate, California has only one-fiftieth of the votes. The rules of the Senate are also set up to encourage slower deliberation and action than those of the House. Because of the makeup of the Senate, it would be much more difficult for California (for example) to push through California-centric legislation, or for large states alone or as a coalition to push through legislation that favors only them.

Now, the same functions would exist with a Senate elected by state legislatures (See U.S. Const., Art. 1 Sec. 3, repealed). But the motivations of the Senators would be different. After all, their constituency would be rather different. State legislatures cannot be viewed as truly representative of the people who elect them, for they have a special interest in government as people who themselves govern. The Framers surely saw this as a benefit to the system they designed; I haven't read the Federalist papers lately, but as you said, they hoped that the state legislatures would be better educated about the needs of the state and would be better able to select and, of course, direct the Senators. As the author of the column pointed out, this has a secondary effect of limiting the power of the federal Legislature.

What he doesn't explain is just how that works. That's where my theory comes in. State legislators have an interest in retaining decisionmaking power for themselves. They do not like the Supremacy Clause of the U.S. Constitution. Fn1. What is more, they have an interest in making laws that favor their own states, disregarding the interests of others. To a certain extent, standing Constitutional doctrine prevents discriminatory lawmaking. The Equal Protection Clause of the 14th Amendment forbids states from making laws that very clearly discriminate against other states in favor of their own. The Commerce Clause of Article I, Section 8 is said to prevent states from making laws that interfere in certain ways with interstate and international commerce, which fall within the domain of Congress.

I do not think that the "negative" or "dormant" Commerce Clause and the Equal Protection clause are adequate to remedy the problems that repealing the 17th Amendment would create. I think that it is a problem that state legislatures, seeking to legislate for themselves, could impair federal legislation on matters of national interest.

So a big part of the question, then as now, is how much we trust state legislatures. As you can tell, I do not, especially when the question is how much we trust them in their involvement with federal lawmaking.

I'm even more certain of that, though, because of how much has changed since the 17th Amendment went into effect. The nation is more interdependent. But economic interdependence has never stopped a government from taking economically detrimental protective action. See, e.g., my notes here, and the problems will be amplified if the States, while not taking action themselves, prevent the federal government from doing so.

Don't get me wrong. I don't look at the federal legislature with rose-colored glasses. But as a matter of constitutional structure, I think giving power to state legislatures to control the Senate is worse policy than what we've got today, and worse policy than simply narrowly construing the Commerce Clause and other Article I powers.

It's also not simply a matter of preferring the slow nature of judicial review to the abrupt nature of constitutional amendment. There's an additional problem about what would happen to judicial review once the amendment went into place. Should the Supreme Court see such an amendment as a reason to back off on strict, narrow interpretation of the affirmative powers of the legislature? I am sure that they would not treat it that way. They would treat it either as neutral with regard to Article I Section 8, or they would treat it as an affirmative statement of constitutional intent to restrict the power of the Congress. Either way, the amendment would not shift the way Court decisions are made as the author of the original commentary suggests it would.

In any event, the question is not entirely one of direct versus representative democracy. We have no direct democracy in the United States except when a state or a municpality (which, as a constitutional matter, is merely a subdivision of state power) runs a binding referendum. The question is who has the power to elect Senators, and therefore who exactly the Senators represent. I think there are enough power politics in Washington without bringing State legislators' desire for power into the mix. An overactive Federal government is a problem, but in this day and age, a crippled one is far, far worse.


(1) The Supremacy Clause reads, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2

[valkyrie]

Them's some looooong posts.

[Eupolis]

Originally posted by valkyrie
Them's some looooong posts.

Yeah, I need a job. Know anyone who practices in Denver?

[Dionysus]

Originally posted by valkyrie
Them's some looooong posts.

Amen!

Please someone, in one line, explain what the 17th amendment is. I haven't had a gov't class since 12th grade.

[Eupolis]

Originally posted by Dionysus


Amen!

Please someone, in one line, explain what the 17th amendment is. I haven't had a gov't class since 12th grade.

Before the 17th Amendment, senators were elected by the legislature of each state. The 17th Amendment changed that so that senators are elected by popular election.

[Kevin]

Personally I don't trust my state's legislature with ANYTHING. I know of too many *specific* instances of corruption and immorality that I have a difficult time trusting anyone in our state government.

On one hand I'm glad that we have direct election of the senate... On the other I realize that the vast majority of voters in my state are undereducated or underinformed when they make their decision. Too much party-line voting occurs here in Oklahoma.

I'm on the fence about the 17th amendment.

[Optimist Prime]

i don't havve a state its the COMMONWEALTH of VA which means can make any stupid laws they want like.