How the 17th Amendment Ruined Federalism

N ot all change is progress. It’s true for life, and it’s true for our Constitution. America’s governing document bears several good modifications — the original Bill of Rights and the 13th, 14th, and 15th “Civil War Amendments” chief among them. Other changes are more suspect. The 18th Amendment that ushered in Prohibition, for example, was so disastrous and hated that it was repealed a mere 14 years later.

April 8 marks the 110th anniversary of the ratification of the 17th Amendment, a change to the U.S. Constitution that replaced the election of U.S. senators by state legislatures with direct election by the people of each state. Many consider it an improvement in the constitutional structure. They are wrong. By compromising the Senate’s fitness to fulfill its role within Congress, the 17th Amendment undermined the legislative branch. We’re living with the ramifications of that decision today.

The Founders intended the Senate to represent the states in the national government. One of the many benefits of our federalist system lies in the maintenance of two separate levels of government: a national one to pursue common ends and various state governments to tackle local matters. Having a state-centric legislative chamber within the national government helps guard state prerogatives while also furthering state interests where needed.

The Senate was meant to protect states as distinct governments with independent powers. State legislatures are part of those governments. Thus, in pursuing their self-interest, they will tend to seek to protect (even enhance) the political power of the states. The people of a state don’t tend to see their self-interest the same way or to the same degree. They tend to vote less on matters of federalism and more exclusively on partisan or policy grounds. This, in turn, often contributes to the growing power of the national government despite attempts to restrict it.

Within the limits of the republican government, America’s Founders sought to make the House and Senate as distinct as possible. They did so to facilitate the quality The Federalist Papers argued a legislative body needed most: deliberation. The Constitution’s legislative process seeks deliberation as a means of refining bills into better laws. Healthy and proper deliberation improves both a bill’s ends and the means it will use to pursue those ends. Yet good deliberation requires distinctions among the deliberators to avoid an echo chamber and to be aware of valuable differences in knowledge and perspective. In large part, the House and Senate have their particular compositions to manifest such differences and thereby actualize fruitful debate. The difference in terms (House, two years; Senate, six) creates shorter and longer-term perspectives regarding pieces of legislation. The age minimums also establish in Congress some generational lines.

While the direct election of senators doesn’t eliminate the differences between the Senate and the House, it lessens them. Members of both are directly elected by the people. As noted above, this direct election subverts the Senate’s role in protecting the prerogatives of states as distinct governments. But it also leaves one less way to facilitate different perspectives so crucial to deliberation and thereby good legislation.

Importantly, whereas the Founders desired the Senate to be a body more rational, cool, and distant from popular passions, the House’s two-year terms and direct selection by the voters would reflect the people’s more knee-jerk responses. Of course, gut reactions can prove rash, dangerous, and often damaging to both public good and individual rights. The Senate’s more stoic and thoughtful poise would not result merely from its six-year term but also from the distance state legislative selection created between it and the people. State legislatures would be more likely to pick on the bases of knowledge and virtue rather than mere popularity — hence, the reason the Senate holds special powers the House doesn’t in confirming judicial nominees and ratifying treaties.

Such objections to the 17th Amendment aren’t grounded in a distrust of republican government. On the contrary, they confirm the foresight of the Founders in the original constitutional structure — a wisdom that didn’t oppose government by the people but sought to channel its exercise to foster more rational and just decision-making.

Right now, our country suffers from states overpowered by the national government and a Congress that’s both weak and feckless against bureaucracies, courts, and presidents alike. The 17th Amendment surely isn’t the sole culprit in the development of these woes, but it’s certainly not helping. Its anniversary is no cause for celebration.