Guest Essayist: Gary Porter

In 1788, as the United States Constitution was adopted, senators would be elected by state legislatures to protect the states from the federal government increasing its own power. Problems related to the election of senators later resulted in lengthy senate vacancies. A popular vote movement began as a solution, but it failed to consider importance of separation of powers as designed by the Framers to protect liberty and maintain stability in government. The popular vote was an attempt to hamper the more deliberative body that is the United States Senate, and succumb to the more passionate, immediate will of the people, so on April 8, 1913, the Seventeenth Amendment to the U.S. Constitution was adopted.

We’ve all heard the phrase: “shooting oneself in the foot.” Grammerist.com reminds us: To shoot oneself in the foot means to sabotage oneself, to make a silly mistake that harms yourself in some fashion. The phrase comes from a phenomenon that became fairly common during the First World War. Soldiers sometimes shot themselves in the foot in order to be sent to the hospital tent rather than being sent into battle.”[i]

Can a state, one of the United States, be guilty of “shooting itself in the foot?” How about multiple states? How about thirty-six states all at once? Not only can they be, I believe they have been guilty, particularly as it regards the Seventeenth Amendment. Let me explain.

“Checks and balances, checks and balances,” we hear the refrain often and passionately these days. The phrase “Checks and balances” is part of every schoolchild’s introduction to the Constitution. In May 2019, when President Donald Trump exerted executive privilege to prevent the testimony before Congress of certain White House advisors, NBC exclaimed: “Trump’s subpoena obstruction has fractured the Constitution’s system of checks and balances”[ii] I’m not certain the Framers of the Constitution would agree with NBC as exerting executive privilege has been part of our constitutional landscape since George Washington,[iii] and if exerting it “fractures” the Constitution, the document would have fallen into pieces long, long ago. As we will see, a significant “fracturing” of the Constitution’s system of checks and balances did occur in this country, but it occurred more than a hundred years before President Donald Trump took office.

The impeachment power is intended to check a rogue President. The Supreme Court checks a Constitution-ignoring Congress, as does the President’s veto. Congress can check (as in limit) the appellate jurisdiction of the Supreme Court, and reduce or expand the number of justices at will. There are many examples of checks and balances in the Constitution. The framers of the document, distrustful as they were of human nature, were careful to give us this critical, power-limiting feature.[iv] But which was more important: the checks or the balances?

Aha, trick question. They are equally important (in my opinion at least). And sometimes a certain feature works as both a check and a balance. The one I have in mind is the original feature whereby Senators were to be appointed by their state legislatures.

We all know the story of how the Senate came into being which was the result of Roger Sherman’s great compromise. It retained the “one-state-one-vote” equality the small states enjoyed with the large states under the Articles of Confederation while also creating a legislative chamber, the House, where representation was based on a state’s population. Their six-year terms allowed them to take “a more detached view of issues coming before Congress.”[v] But how should these new Senators be selected: by the people, as in the House, or otherwise?

On July 7, 1787 the Constitutional Convention unanimously adopted a proposal by John Dickinson and Roger Sherman that the state legislatures elect this “Second Branch of the National Legislature.”  Why not the people? Alexander Hamilton explains:

“The history of ancient and modern republics had taught them that many of the evils which those republics suffered arose from the want of a certain balance, and that mutual control indispensable to a wise administration. They were convinced that popular assemblies are frequently misguided by ignorance, by sudden impulses, and the intrigues of ambitious men; and that some firm barrier against these operations was necessary. They, therefore, instituted your Senate.”[vi] (Emphasis added)

The Senate was to avoid the “impulses” of popularly-elected assemblies and provide a “barrier”  to such impulses when they might occur in the other branch.

James Madison explains in Federalist 62 who particularly benefits from this arrangement:

It is … unnecessary to [expand] on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to 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.”[vii] (Emphasis added)

Appointment by the state legislatures gave the state governments a direct voice in the workings of the federal government. Madison continues:

“Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people (in the House), and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; ….” (Emphasis added)

For those with lingering doubt as to who the Senators were to represent, Robert Livingston explained in the New York Ratifying Convention: “The senate are indeed designed to represent the state governments.”[viii] (Emphasis added)

Perhaps sensing the potential to change the mode of electing Senators in the future, Hamilton cautioned: “In this state (his own state of New York) we have a senate, possessed of the proper qualities of a permanent body: Virginia, Maryland, and a few other states, are in the same situation: The rest are either governed by a single democratic assembly (ex: Pennsylvania), or have a senate constituted entirely upon democratic principles—These have been more or less embroiled in factions, and have generally been the image and echo of the multitude.[ix] Hamilton refers here to those states where the state senators were popularly elected.

The careful balance of this system worked well until the end of the 19th century and the beginnings of the Progressive Era.

Gradually there arose a “feeling” that some senatorial appointments in the state legislatures were being “bought and sold.”  Between 1857 and 1900, Congress investigated three elections over alleged corruption. In 1900, the election of Montana Senator William A. Clark was voided after the Senate concluded that he had “purchased” eight of his fifteen votes.

Electoral deadlocks became another issue. Occasionally a state couldn’t decide on one or more of their Senators. One of Delaware’s Senate seats went unfilled from 1899 until 1903.

Neither of these problems was serious, but they both provided fodder for those enamored with “democracy.” But bandwagons being what they are, some could not resist. Some states began holding non-binding primaries for their Senate candidates.

Under mounting pressure from Progressives, by 1910, thirty-one state legislatures were asking Congress for a constitutional amendment allowing direct election of senators by the people. In the same year several Republican senators who were opposed to such reform failed re-election. This served as a “wake-up call” to others who remained opposed. Twenty-seven of the thirty-one states requesting an amendment also called for a constitutional convention to meet on the issue, only four states shy of the threshold that would require Congress to act.

Finally, on May 13, 1912, Congress responded. A resolution to require direct elections of Senators by the citizens of each state was finally introduced and it quickly passed. In less than a year it had been ratified by three-quarters of the states and was declared part of the Constitution by Secretary of State William Jennings Bryan on May 31, 1913, two months after President Woodrow Wilson took office.

The Seventeenth Amendment has been cheered by the Left as a victory for populism and democracy, and bemoaned by the Right as a loss for states’ rights or “The Death of Federalism!” Now, millions in corporate funding pours into Senate election campaigns. Senators no longer consult with their state legislatures regarding pending legislation. Why should they? They now represent their state’s citizens directly. The interests of the state governments need not be considered.

For the states to actually ask Congress for this change seems incredibly near-sighted. Much of the encroachment by the Federal Government on policy matters which were traditionally the purview of the states can, I believe, be traced to the Seventeenth Amendment.

We repealed the Eighteenth Amendment. What about repealing the Seventeenth?  Many organizations and individuals have called for it. Every year he was in office, Senator Zell Miller of Georgia repeatedly called for its repeal. A brief look at who supports repeal and who opposes it reveals much. In support of repeal are the various Tea Party organizations, National Review magazine and others on the Right. Opposed, predictably enough, sit the LA Times and other liberal organizations. Solon magazine called the repeal movement “The surprising Republican movement to strip voters of their right to elect senators.” Where this supposed right originates is not explained in the article.

The wisdom of America’s Founders continues to amaze us more than 200 years later. Unfortunately, the carefully balanced framework of government they devised has been slowly chipped away by Supreme Court decisions and structural changes, like the Seventeenth Amendment. Seeing that the states willingly threw away their direct voice in the federal government, my sympathy for them is limited, but repeal of this dreadful amendment is long overdue.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[i] https://grammarist.com/idiom/shoot-oneself-in-the-foot/

[ii] https://www.nbcnews.com/think/opinion/trump-s-subpoena-obstruction-has-fractured-constitution-s-system-checks-ncna1002101

[iii] https://supreme.findlaw.com/legal-commentary/a-brief-history-of-executive-privilege-from-george-washington-through-dick-cheney.html

[iv] See Federalist 51

[v] Bybee, Jay S. (1997). “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment”. Northwestern University Law Review. Northwestern University School of Law. p. 515.

[vi] Alexander Hamilton, speech to the New York Ratifying Convention, 1788

[vii] James Madison, Federalist 62

[viii] Robert Livingston, New York Ratifying Convention, 24 Jun 1788.

[ix] Alexander Hamilton, speech to the New York Ratifying Convention, 1788

1 reply
  1. Timothy Dander
    Timothy Dander says:

    Like always Gary has presented a factual, history based defense of the founders constitution. Repeal of the 17th amendment is the most important 1st step towards returning to a republican form of government. The 17th amendment undermines the 10th amendment which is the bill of rights part of the founders constitution. The bill of rights amendments should be differentiated as supreme amendments. They are in a much different league then the rest of the amendments. Good job!!!

    Reply

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