Bring Back the Founders’ Senate

T he Founding Fathers never intended for Americans to vote for their own senators. Rather, they considered it essential that state governments have representation in the federal government through the U.S. Senate. That is why, from 1789 to 1913, not a single American cast a ballot for U.S. Senate. For more than 100 years, senators were chosen by state legislatures. This all changed with the 17th Amendment, which changed senatorial elections to direct popular vote, following state-level reforms in the years prior.

One new proposal would change it back. In June, Representative Keith Self of Texas proposed legislation to repeal the Seventeenth Amendment, ending the system of direct popular election that has governed Senate races since 1913 and returning the selection of U.S. senators to state legislatures. Conservatives should support this effort to restore the Constitution’s original checks-and-balances design.

That the Constitution originally empowered state legislatures to choose a state’s senators was no accident. It was, as one law professor has observed, one of the least controversial questions the Constitutional Convention considered, adopting the arrangement without serious dissent. Nor did delegates raise any objection to it in the state ratifying conventions.

The Framers built a bicameral Congress in which the House would represent the people directly, and the Senate would represent the states as states, with their own institutional interest in resisting federal encroachment. A senator chosen by — and answerable to — a state legislature had every incentive to defend that state’s prerogatives against Washington. A senator who needs a national fundraising operation, a national media profile, and a national donor base to win re-election often has little incentive to do so.

James Madison was explicit about the function the Constitution’s original system for the selection of senators served. Federalist No. 63 defends the Senate’s design on the grounds that a body removed from immediate popular passion would provide “a defense to the people against their own temporary errors and delusions,” preserving public opinion’s true interest until “reason, justice, and truth can regain their authority.” The Senate was meant to be more incorruptible than the House precisely because it was insulated from the engineering of mass opinion. This does not mean insulated from the people’s interests, but from the people’s momentary passions.

Restoring the Founders’ vision would help protect Senate candidates from the national factional machinery that now treats Senate primaries as opportunities to enforce ideological discipline from outside a state altogether. A presidential candidate or national party apparatus can credibly threaten to “primary” a senator who crosses the leadership. That’s something much more difficult to do with a state legislature — an institution with its own electoral base, its own incumbents, and its own local accountability insulated from national mob dynamics.

Since 1913, state power has faded while federal power has expanded enormously. States have become administrative subcontractors, the implementation arm of often unfunded programs designed in Washington. Medicaid, education funding formulas, highway spending, environmental permitting, and more leave state legislatures spending enormous energy lobbying Congress for waivers and money rather than checking federal power as an independent source of governmental authority. That was not the Founders’ design but is the predictable result of severing the institutional link between state governments and the body meant to represent them in the national legislature and act as a check on the federal government’s power.

Philip Hamburger’s Is Administrative Law Unlawful? traces how the same progressive era that produced the Seventeenth Amendment also produced the modern administrative state, with agencies governing by “expert rule” rather than by law made through constitutionally accountable representatives of both the people and the states.

Justice Clarence Thomas, in his April address at the University of Texas at Austin, put a sharper point on the intellectual lineage. He attributes these problems largely to Woodrow Wilson and the progressives who reshaped American government around this time. These progressives sought to emulate Otto von Bismarck’s German system of “relatively unimpeded state power,” which Wilson called “nearly perfected.” This was a model of “expert” administration explicitly imported because the Founders’ constitutionalism was, in Wilson’s view, too deliberative and too encumbered by checks on power.

The Seventeenth Amendment and the rise of the administrative state are not two unrelated reforms of the same era but two halves of a single project: clearing away the structural obstacles of federalism, separation of powers, and divided authority that stood between a centralizing national government and the people it wished to regulate rather than represent.

In his 1774 Speech to the Electors of Bristol, Edmund Burke argued that a representative owes his constituents not the echo of their momentary opinion, but his own mature judgment, exercised on their behalf. The Senate was designed to deliberate a step removed from direct electoral pressure, embodying a judgment accountable to voters on the state level, with more institutional memory and less susceptibility to the fleeting politics of the day. Senators were positioned to maintain the “deliberative assembly of one nation, with one interest, that of the whole,” while still maintaining a level of responsibility to their home state.

Repealing a constitutional amendment requires two-thirds of both chambers and ratification by three-fourths of the states, a bar cleared only once before in American history. The biggest question is whether the federal government should continue operating without this fundamental institutional check the Founders built into the Constitution, a Senate that answered states as states, not to national factions or to the next news cycle.

Restoring that check would not be a retreat from republican government but would be a return to it.

Marc Wheat is General Counsel at Advancing American Freedom. Mitchell Bahnsen is an intern at Advancing American Freedom.