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Repeal the Seventeenth Amendment
From the November 15, 2010, issue of NR

By Todd Zywicki


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Joe Miller, Alaska’s Republican nominee for the United States Senate, recently expressed support for an idea that is rapidly gaining steam in Tea Party circles: the repeal of the Seventeenth Amendment. Miller subsequently backtracked from his statement, but he shouldn’t have: Repealing the Seventeenth Amendment would go a long way toward restoring federalism and frustrating special-interest influence over Washington.

Ratified in 1913, the Seventeenth Amendment replaced the election of U.S. senators by state legislators with the current system of direct election by the people. By securing the Seventeenth Amendment’s ratification, progressives dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.

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The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty. To this end, the Framers provided that the power of various political actors would derive from different sources. While House members were to be elected directly by the people, the president would be elected by the Electoral College. The people would have no direct influence on the selection of judges, who would be nominated by the president and confirmed by the Senate to serve for life or “during good behavior.” And senators would be elected by state legislatures.

Empowering state legislatures to elect senators was considered both good politics and good constitutional design. At the Constitutional Convention in Philadelphia, the proposal was ratified with minimal discussion and recognized as the approach “most congenial” to public opinion. Direct election was proposed by Pennsylvania’s James Wilson but defeated ten to one in a straw poll. More important than public opinion, however, was that limitations on direct popular sovereignty are an important aspect of a constitutional republic’s superiority to a direct democracy. As Madison observes in Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Election of senators by state legislatures was a cornerstone of two of the most important “auxiliary precautions”: federalism and the separation of powers. Absent some direct grant of federal influence to state governments, the latter would be in peril of being “swallowed up,” to use George Mason’s phrase. Even arch-centralizer Hamilton recognized that this institutional protection was necessary to safeguard state autonomy. In addition, the Senate was seen as a means of linking the state governments together with the federal one. Senators’ constituents would be state legislators rather than the people, and through their senators the states could influence federal legislation or even propose constitutional amendments under Article V of the Constitution.

The Seventeenth Amendment ended all that, bringing about the master-servant relationship between the federal and state governments that the original constitutional design sought to prevent. Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends — through such actions as “unfunded mandates,” laws requiring states to implement voter-registration policies that enable fraud (such as the “Motor Voter” law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions — would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.

There is no indication that the supporters of the Seventeenth Amendment understood that they were destroying federalism. But they failed to recognize a fundamental principle of constitutional design: that in order for constraints to bind, it is necessary for politicians to have personal incentives to respect them. “Ambition,” Madison insisted in Federalist 51, “must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

Under the original arrangement, senators had strong incentives to protect federalism. They recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home. Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure. Moreover, when the federal government expanded to address a crisis (such as war), it quickly retreated to its intended modest level after the crisis had passed. Today, as historian Robert Higgs has observed, federal expansion creates a “ratchet effect.”

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COMMENTS   15

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   11/11/10 10:17

Repealing the XVII Amendment to the U.S. Constitution is an excellent idea. The only way to systematically check the size of the federal government is to collectively give the states a veto over what the federal government can do.

The author, Todd Zywicki, and I attended law school together at U.Va. and I remember another classmate in 1992 advocating repeal of the XVII Amendment. Her words were a bolt out of the blue that explained how the federal government rapidly expanded during the twentieth century. It is time to put this genie back in the bottle and I am glad Professor Zywicki is taking up this fight.

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   11/11/10 11:53

I believe a secondary advantage of repeal would be to make state legislative office more attractive to people of ability who feel the States are degenerating into Federal administrative districts.

There is another reason for repealing the 17th Amendment. Travel was difficult at the time the Constitution was ratified. The location of political authority in wide spread locations made sense. Then came the railroads in the 1840's and 50's. It became practical to centralize power if one wanted to do so. Of course the technological progress has been continuous since then. The physical possibility of concentrating power makes the repeal of the 17th Amendment seem even more attractive. The dispersal of power is at the heart of the American idea.

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   11/11/10 13:51

I believe the States ought to set the salary and pay their own Senators

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   11/11/10 15:02

I like my idea better -- all of New England should only have two Senators. It is beyond ridiculous that Rhode Island and New Hampshire have four between them. My subdivision has a greater population than Rhode Island. It seems fitting that the original 13 should have their power reduced as they are the ones who got us into this mess in the first place. Just think of all the problems this would solve.

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   11/11/10 17:57

Yes. The Seventeenth Amendment removed one of the pillars of the Constitution. Absent repeal, we will spend our time treating symptoms. Thank you NR for finally recognizing the importance of this issue. Readers, please seek out and read the works of Zywicki, Hoebeke, Russo, and others on this subject. WeTheFifty.com.

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   11/12/10 09:51

Amen!

The two largest leaps toward an overly-powerful federal government have been the 17th Amendment and the incorporation doctrine through the 14th Amendment, by means of which the federal judiciary has taken to dictating what States can and cannot do. Unlike, say, prohibition, these are structural problems with broad malignant effects.

That being said, I've learned to dislike the Federalist Papers, since the U.S. Constitution was something of a con job because federal government would inevitably become national government: "One Ring to rule them all, One Ring to find them,
One Ring to bring them all, and in the darkness bind them."

(And to think that the Bill of Rights, which was insisted upon by the anti-federalists, has since been used to restrict the States!)

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   11/12/10 10:55

What an excellent piece! I may re-subscribe to NR if they are going to continue to print daring, thoughtful, conservative pieces like this.

The author is correct that the 17th destroyed the separation of powers designed by the Framers. It helped turn the United States into a United State. The purpose of a bicameral legislature was to have the lower house represent the people, and the upper house represent the states (who formed and empower the Union). Having popularly-elected Senators renders the Senate entirely superfluous, and it denies the states a voice in the government and nation they created by ratifying the Constitution.

THIS is how you energize the Right. Bold ideas proposed with iron-clad and historically informed logic. Nice work!

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   11/12/10 10:56

Agreed with the sentiment, entirely.

Language use quibble: "it is not implausible to think that the change would be positive" is incorrectly constructed. Either it is not unreasonable to think that the change would be positive, or it is not implausible that the change would be positive; plausibility applies to the idea itself, not to the thinking about it.

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   11/13/10 12:25

The author fails to mention the most important point. One wonders why unless it is he is simply writing something not with the idea of actually accomplishing it, but instead just baiting people.

When the fact that the states have already submitted sufficient applications to cause a convention call and thus actually cause the repeal of the 17th Amendment, is placed in the mix, the above comment must be considered to have merit. The author should be asking people to contact Congress and get a convention rather than just seeming to advance a theory making people believe such an amendment will and can only happen in the future, if ever.

To read the over 700 state applications, please go to www.foavc.org.

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   11/13/10 15:03

Great article. I'm convinced, now. Indeed, the priorities and motives of state legislators are different than voting citizens, and there was a purpose for electing Senators that way. And that helps explain why today we have so many lousy senators -- they're just six-years reps -- or the absence of any real statesmen.

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   11/14/10 12:09

Interesting how the professor fails to mention the states have already applied in sufficient number to cause a convention call so as to get this amendment moving. See www.foavc.org. Why is that I wonder? Could it be this is simply a ploy and no one really wants it done? Most likely. If the people behind this and the balanced budget amendment were really serious they would be putting pressure on Congress to obey the Constitution and call the convention so that the amendments could be proposed. They are not. Instead they are ignoring the public record and simply using the issue as a political ploy, most likely to garner support for a re-election bid by saying all they need is more time to get such amendments passed. Pure politics pure and simple. But no results.

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   11/16/10 13:46

What blows a huge hole in this argument is the statement that the framers of the Constitution were trying to create a deliberative body similar to the House of Lords in Britain. For the late 18th Century House of Lords, the only qualification was birth, term of "service" was for life, there was no peer review, and the constituency was just the peer himself, his immediate family, and his own narrow self-interest. Many peers never even bothered to show up to claim their seats.
To obtain passage of the crucial Reform Act of 1832, King William IV had to threaten to appoint enough Whigs to the House of Lords to ensure its passage before the current Tory occupants relented and agreed to vote for the bill.

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Livingwill
   02/01/11 17:46

The chances of getting the 17th repealed are zero. It isn't the 19th century anymore and people aren't going to sit still for unaccountable senators. State legislatures are not accountable in this instance because they can and would spread the blame for any bad senator amongst themselves and very few people know who their state senator or representative even is. The senators would be voted in by virtue of who can do the most favors for the various state legislators.

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Alex Leibowitz
   08/31/11 15:04

"The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty." -- You're missing an argument that these two ends are mutually exclusive, as well as an argument that if we have to choose between the two, we ought to choose the former. And anyway, WHOSE liberty are we trying to preserve? The liberty of the individual or the liberty of the people?

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Calixtus
   10/30/11 20:29

What is there to suggest that the party in control of each state's legislature would not appoint wing-nuts from the far left or far right that would otherwise be unelectable? In this age when partisan politics is seen as sport, a party with a majority of one proclaims its authoritative mandate. Without multiple parties to split representation in the state houses (and therefore require the building of coalitions), we would end up with a bunch of extremist senators of one stripe or the other.

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