May 14, 2012 – Essay #61 – Amendment XVII: Direct Election of Senators – Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

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Amendment XVII:

1: 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.

2: 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.

3: 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.

 

Many Americans wonder why it is that the federal government continues to expand its power at the expense of the states and local governments.  As the Supreme Court observed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),“the adoption of the Seventeenth Amendment in 1913 … alter[ed] the influence of the States in the federal political process.” Ironically, it was state legislatures that insisted on adopting the Seventeenth Amendment even though it virtually guaranteed their loss of power. The Seventeenth Amendment inflicted a near death-blow to federalism.

The first sentence of the Seventeenth amendment substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislatures.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the Seventeenth Amendment, with little or no realization that they were diminishing the power of their own states and undermining federalism generally.  Many legislators apparently thought they had more important matters to attend to than devoting time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has inevitably consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is a Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

 

11 replies
  1. Harry 2248
    Harry 2248 says:

    As is typical of all politicians, the 17th amendment allowed the individuals of the state legislatures to deflect blame for conduct the the senators away from themselves and on to the voters of their states. Therefore the majority of the state legislatures were in favor of the 17th amendment. They didn’t care if they were relinquishing power to the federal government.

    Reply
  2. Peter R. Olson
    Peter R. Olson says:

    Our Founding Fathers created a near perfect form of federal government, and the Seventeenth Amendment destroyed that. With absolutely no one representing the interests of the state, we have corrupted our legislative process, destroyed the entire concept of federalism, and likely insured the eventual bankruptcy of the nation, one state at a time.

    It is teh single most damaging amendment we have ever passed.

    Reply
  3. Kirk Larson
    Kirk Larson says:

    The Seventeenth Amendment was a progressive measure to begin the deconstruction of the State Governments and was not a death blow to Federalism. Instead it super charged the Federalist movement to end State influence.

    The founders intent in structuring the Congress as it did was to recognize the natural order of influence itself. The founders showed that through the Structure of the House and Senate that two primary forms of Influence exist. The first under the House of Representatives was that of the Peoples Voice and that the House was the be the initiating power to all forms of Bills that process through the Congress.

    The Senate was intended to recognize organizational influence through the form of the State Governments. However, the Constitution did not provide any means for new organizations to join the Senate as a Representative organ of the public. Nor did the Founders think to visualize that organizations would come into existence.

    Since the founding of our nation, the political forum has migrated to organize through party’s that function independently of the Federal Government and the Constitution. As a result of this growing influence, the party’s have systematically undermined the official organs described within the Constitution, namely the States. The evidence to this end is the Ratification process under the Constitution stipulates that the State Governments must ratify changes to the Constitution by 3/4 votes. So the progressives, under Woodrow Wilson rose to power and secretly postulated, “What if there were no State Governments left?” Since that time, the Party’s have legislated in both the States and the Federal Governments laws, policies and new institutions that undermine the States ability to function effectively and subvert the State sovereignty by creating a dependence of the State Government on the Federal Government. This in turn enabled the Federal Government through Congress and the Bureaucracies to set conditions on the States for the Funds they received from the Fed and further undermines the State Governments.

    Dr. Baker is correct in stating that, “As the Supreme Court observed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),“the adoption of the Seventeenth Amendment in 1913 … alter[ed] the influence of the States in the federal political process.”” However, Dr Baker followed his point with a historical accounting and not an analysis of the influence the Seventeenth Amendment has.

    It is clear today with the Democratic Party’s influence, now completely driven by Progressive Ideology, and shared in the Republican Party, that the Federal Government seeks to undermine and end the existence of the States themselves. Additionally, from the readers point of view, it should be clear that the State Governments are the legal guardians and stewards of all election processes within. The end of the States not only spells the end of the United States but also the end of the people’s voice.

    Reply
  4. Jeff Launiere
    Jeff Launiere says:

    I agree that the 17th Amendment allowed the Senate to no longer be responsible to the states, instead doing what is popular and will get them reelected. Of course supposedly free things are very popular to the voters and that is why we have Social Security, Medicare, Medicaid, and so much more. Repeal of the 17th Amendment would allow the states to have more say over how their money is spent. ObamaCare would likely never have passed if the House was elected by the people and the Senate by the State Legislature, as they would understand the costs to the states are too high.

    Reply
  5. Ron
    Ron says:

    Agree Peter. It’s amazing to me how, in just 100 years, those in power at the state level so willingly punted on power; that’s so unlike politicians. This also shows just how little ordinary American citizens know and care about the founding principles of our nation, their source of origination, and their fragility. 100 years after the adoption of the 17th, I doubt that anyone could educate and convince a majority of the American people that the 17th should be eliminated by a new amendment.

    Reply
  6. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    A new amendment is needed to not only reverse the 17th, but to require law makers to spend six months out of the year with their constituents; which in the case of senators is the vincinage of state capitals. With modern technology these days, senators can teleconference in their votes from their home state.

    Reply
  7. Jerry H
    Jerry H says:

    Agree with Peter and others. The 17th Amendment basically left the states without a real voice in Congress. Playing the what-if game, think of the laws which would not have passed if the state legislatures still selected senators. Obamacare would never have passed, for example.

    Reply
  8. Kirk Larson
    Kirk Larson says:

    If we consider the need for new Amendments, we must be careful. If the liberals get their fingers into, they will either dilute it or convolute it to such a degree that the new Amendments could literally mean anything they want it too.

    Additionally, one of the principles the Liberals set forth in destroying the country is to set p the new policies and laws so convoluted that it would require an enormous number of Amendments to correct their work.

    I have written tentative versions to correct the problem and prevent future problems and at present requires between 30 to 40 more pages and about 20 to 22 new Amendments to correct everything.

    The sheer monstrosity of the work is an obstacle to getting anything done which the Liberals are heavily dependent upon. Additionally, the Liberals have used education to disable the political forum from being a contributing part of any solution. This means that it is politically impossible to achieve this. Neither Party will support any new Amendments that threaten to harm the parties influence over the country.

    Therefore, we need to redefine the divisions in the country from race and party as the parties now define it, to between the people’s will and the party system. More over real, effective solutions are required which means trust must be reestablished. The people must believe that it can be done. Presently, the liberals have instituted an environment of doubt to such a degree that it is pointless to even attempt it.

    This is why the Founders did their work in secret.

    Reply
    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      I have come up with about twenty amendments myself; but six pages or so long. I question spelling everything out as language of the texts tends to be ignored. The latest 27th Amendment is already defanged by Congress power to print money out of thin air thereby devalueing the relative value and buying power of the dollar, and the passing of recurring COLA payment adjustments. This causes the income of congressmen to vary within the same term prior to an election; but the amendment is ignored by justifications anyway. In any case, I am interested to see what you have written. A coined my write up “Congress 2.0” which permits states to vote a statutue 2/3rds over Congress in a confederal vote, filing simplified income taxes by directly filing to the state instead of the federal IRS, a ban of federal money going into state budgets, rotational term limits, confirming lame duck appointments and legislation by the next session of Congress, anti bill-riding, et.al.

      Reply

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