The Case for Repealing the Seventeenth Amendment

The Seventeenth Amendment to the Constitution shifted the responsibility of selecting Congressional senators from the state legislatures to the people through direct elections. Proponents of the amendment asserted that this change was more consistent with the American principles of democracy and popular sovereignty, and would curtail corruption in Congress and make it more responsive to the people’s concerns. This significant change to the construction of Congress introduced by the Seventeenth Amendment is inconsistent with the principles of the Constitution as expressed by the framers. The direct representation of the state legislatures in Congress was considered an essential defense against possible encroachments by the national government, and the Senate was envisioned as that branch of Congress distinct from and not susceptible to the pitfalls of the democratically elected House. A balanced American republic that adequately administers the local sphere requires a representation of the states at the federal level and a bicameral Congress with a check on popular sovereignty. Repealing the Seventeenth Amendment would achieve this.

The selection of senators was delegated to the state legislatures under Article One, Section Three of the original Constitution: “The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six Years.” The precise details of the elections were left to the discretion of the states. Indeed, by the time the Seventeenth Amendment was ratified in 1913, a majority of the states had opted for popular primaries under a “common understanding” by which the state legislatures generally reflected the people’s choices for senators (Library of Congress 2016). The Seventeenth Amendment removed this privilege from the states by requiring that all senators be elected by popular vote: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years.” This change not only obsoleted the informal primary systems but also divorced the state legislatures from the senate election process entirely.

Calls for a reform of the Senate selection process resounded throughout the nineteenth century. First came President Andrew Johnson, who called for a Constitutional amendment for the direct election of senators in an 1868 special address to Congress. He claimed that direct elections would “be more consistent with the genius of our form of government” (Johnson 1868, 23). Johnson believed that a defining principle of the American government was responsibility to the people and that the indirect election of senators through the state legislatures diluted this objective. His conviction was so strong that he urged Congress to adopt this “necessary and expedient” proposal and felt no further elaboration was necessary (23).

In 1894, Nebraska Democrat William Jennings Bryan made the case for direct election in an address to the House of Representatives. He posited that if Americans were able to elect their state officers and legislators, there was no reason they should not be able to elect their senators, too. “No distinction can be made between [the senators] and other representative offices,” Bryan said (Bryan 1900, 302). Echoing Johnson’s argument that indirect election was inconsistent with the American principle of popular sovereignty, Bryan proclaimed that “to oppose the popular election of senators is to question the wisdom of our form of government” (302). Finally, Bryan pointed out that new threats and powers had arisen since the drafting of the original Constitution. Large and influential corporations that the founders could never have envisioned bought influence in the state legislatures and hence Senate seats. For Bryan, the obvious solution was direct elections, which could not be controlled by them so easily (303).

Writer and muckraker David G. Phillips called national attention to corruption in the Senate with a series of articles in the Cosmopolitan Magazine sensationally titled “The Treason of the Senate.” In excruciating detail, he described illicit political connections between senators and political machines, railroad corporations, and business and insurance interests. “The senators are not elected by the people; they are elected by the ‘interests,’” Phillips declared (Phillips 1964, 59). By “interests,” Phillips meant greedy elites who “[manipulated] the prosperity produced by all, so that it heaps up riches for the few;” “whose growth and power can only mean the degradation of the people, of the educated into sycophants, of the masses toward serfdom” (59). Outrage over apparent misdealings and apathy toward constituents in the Senate led to widespread calls for reform, which eventually became irresistible. The Seventeenth Amendment was ratified by the states in 1913. The Senate is chosen by direct elections to this day.

Proponents of the Seventeenth Amendment recurred to two general principles: that direct election of senators was a necessary improvement to the Constitution that was truer to the spirit of republican government, and that direct election would hamper the influence of corrupt special interests by vesting the choice of senators in the people. But far from a correction to the framers’ original system, it was a careless destruction of the checks and balances that protected the states against federal encroachment. Far from a defense against ambitious and harmful interests, direct election played right into their hands.

With senators selected by the state legislatures and each state having equal influence, the Senate as originally conceived represented the states’ interests within the national government. In Federalist 62, Publius noted that this method of senator selection “[gave] the State Governments such an agency in the formation of the Federal Government, as must secure the authority of the former, and may form a convenient link between the two systems” (Hamilton, Madison, and Jay 2003, 375). At a New York convention to ratify the Constitution, Alexander Hamilton put it more bluntly: “the equal vote in the Senate was given to secure the rights of the States” (Clason 1888, 114). In other words, the framers understood that the appointment of the Senate by the state legislatures preserved the states’ sovereignty and provided a means of defense against potential encroachment by the federal government. This construction of the Senate was invoked to answer Anti-Federalist charges that the proposed Constitution would lead to the dissolution of the states under such encroachment, as James Wilson did in a speech to the Pennsylvania legislature. Identifying the state legislatures’ control of the Senate as one of the “indissoluble ties” between themselves and the national government, Wilson argued that because of these “ties,” the Constitution could not possibly lead to the destruction of the states (Wilson 1888, 159). This was what was lost with the passage of the Seventeenth Amendment.

Direct election was hardly a purified form of American republicanism, as Johnson and Bryan claimed; rather, it was a subversion of a crucial check in the framers’ system. Without a representation of the states’ interests in the national government, there was nothing to impede its dramatic growth throughout the twentieth century. Though many states were already democratically electing senators before the passage of the Seventeenth Amendment, what made the new system so different was that it made the practice a uniformly national, instead of a distinctly local, phenomenon. Now guaranteed the direct vote for every representative in Congress, Americans correctly concluded that all the power lay in the federal government. Their attention naturally turned away from their states to it, as monumental federal programs such as the New Deal and Great Society captured the public imagination. Today, the most important sections on the election day ballot are the votes for president, senators, and representative in the House. Positions in the state government are uninteresting and neglected.

The original composition of the Senate enabled the dual federal system of distinct state and national spheres. Through federalism and the states, the people could be administered on an intimate level, taking into account local concerns and circumstances, that the federal government is incapable of accomplishing on the national scale. In Federalist 46, Publius noted that the through the states, “all the more domestic and personal interests of the People will be regulated and provided for” (Hamilton, Madison, and Jay 2003, 291). An unchecked national government was neither intended by the framers nor is it desirable to the American people. What has the United States lost in the rise of a massive, intricate central government that sets policies on everything from education to transportation to nutrition? The benefits of federalism far outweigh the alleged advantages of the direct democracy advocated for by the reformers.

The idea that the Seventeenth Amendment would eliminate corrupt special interests was also a grave mistake. The framers anticipated that such interests would attempt to commandeer the republic, and therefore divided up powers of the government so that the corruption of a single source of power would not lead to the ruin of the entire system. “[The Senate] doubles the security to the People, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.” (Hamilton, Madison, and Jay 2003, 377). The fact that the Senate derived its authority from the state legislatures instead of the people presented an additional obstacle for any attempt to oppress the people or usurp power. Under the original system, Congress had two defenses against corruption by requiring the consent of both the people and their state legislatures. By removing Congress’s responsibility to the state legislatures, the Seventeenth Amendment made it possible to corrupt the entire body merely by beguiling the people. Regardless of how corrupt the state legislatures were perceived to be by reformers, it was a mistake to assume that direct democracy was immune to the same temptations. Direct elections perfectly suited organizations that specialized in manipulating votes, such as urban political machines. In short, corrupting Congress was made easier, not harder. Under the original system, a few purchased seats in the Senate could be countered by the people’s representatives in the House, but the passage of the Seventeenth Amendment meant that any force that could corrupt the people had control over the entire Congress. The proper solution to corruption in the Senate was not to carelessly reorganize Congress but to clean up the individual state legislatures, as Publius advocated for in Federalist 63 (Hamilton, Madison, and Jay 2003, 386).

The passage of the Seventeenth Amendment was a grave miscalculation that overturned critical checks and balances in the Constitution. Its complete repeal is necessary to restore these checks and balances and the dignity of the states. Reform of the Senate could have been accomplished through less radical means, such as allowing the state legislatures to institute popular elections themselves, as was the case before the Seventeenth Amendment. The election of senators would then be viewed as a local phenomenon, an expression of the state’s will rather than just another means of setting national policy. Mandatory direct election of senators was hardly a cure for the republic’s perceived flaws; it was the erosion of a fundamental institution, the state governments, and the advantages of dual federalism. The Seventeenth Amendment was a misguided reform that needs to be undone.

Bibliography

Bryan, William Jennings. 1900. The Life and Speeches of Hon. Wm. Jennings Bryan. Baltimore: Woodward.

Clason, A. W. 1888. Seven Conventions. New York: Appleton.

Hamilton, Alexander, James Madison, and John Jay. 2003. The Federalist Papers. Edited by Clinton Rossiter. New York: Signet Classics.

Johnson, Andrew. 1868. “Message of the President of the United States.” In Message from the President of the United States to the Two Houses of Congress, At the Commencement of the Third Session of the Fortieth Congress, edited by Ben: Perley Poore. Washington: Government Printing Office, 1869.

Library of Congress. 2016. “17th Amendment: Popular Election of Senators.” Last modified September 12. https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2016-10-18.pdf.

Phillips, David Graham. 1964. The Treason of the Senate. Edited by George Mowry and Judson Grenier. Chicago: Quadrangle.

Wilson, James. 1787. “Substance of an Address to a Meeting of the Citizens of Philadelphia.” In Pamphlets on the Constitution of the United States, edited by Paul Leicester Ford. Brooklyn: s.l.

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