John Truslow has a good op-ed on the 17th Amendment in Roll Call. Nominally it is about the process for filling vacant Senate seats, but it also lays out the more general case for repealing the 17th Amendment.
I had a short essay on the topic of Senate Vacancies in the Heritage Guide to the Constitution.
rick.felt says:
Could there possibly be an easier issue to demagogue than the repeal of the 17th Amendment? “They’re trying to take away your vote” would be the beginning and the end of the debate.
October 5, 2009, 9:10 amyankee says:
This reminds me of Sandy Levinson’s argument that the Constitution was flawed because it made it too hard to remove Bush from office: the Constitution is flawed because it makes it harder to enact my partisan agenda.
October 5, 2009, 9:17 amRich B. says:
Interesting article, but weird from the concept of “Restoring Federalism.”
Now, when I (and most people) vote for State legislators, we do so based upon local issues. A Massachusetts “Republican” may be more liberal than an Alabama “Democrat”, but that’s fine because they will break down along the median of local — not national — politics.
So, what happens in the state legislators nominate Senators? No way does the Mississippi legislature have majority Democrats in both houses. Probably similar for Florida Republicans.
Suddenly, “all politics is local” becomes flipped on its head. State issues and federal issues are different, and most people feel free to vote for different parties because of that. Repealing the 17th Amendment would eviscerate that difference.
October 5, 2009, 9:17 amBuckland says:
Nowhere does the author address one of the main reasons for the 17th amendment — gridlock at the state level. Sure, the legislature could pick a new senator the next day as he suggests MA could, but way too often a divided legislature couldn’t come to an agreement on who the next senator should be. The result would be periods of years when a state had only a single or even no senators.
Is today’s system perfect? No way. However a system where a senate has trouble getting a quorum was what the amendment was getting away from. Not addressing this adds nothing to his case.
October 5, 2009, 9:45 amPeter says:
The seventeenth amendment was ratified at a time when Congress was pushing outward the limits of federal jurisdiction with breakneck speed, ie Railroad Hours Act, Children’s Bureau, grant in aid programs, and the debates in the congressional record of the period between 1905 1912 do not indicate that senators elected by legislatures were vigilant in protecting the rts of the states. I do not buy the idea that restoring to legislatures the right to elect senators will make those senators more cognizant of the tenth amendment.
Before the 17th, senators used fed jobs to bribe members of state legislatures; after the 17th, they used fed programs like the Federal Farm Loan Act to bribe voters directly.
October 5, 2009, 10:20 amDOuglas2 says:
Would the amendment prohibit a legislature from directing that the temporary appointment must be of a person chosen by that legislature?
October 5, 2009, 10:25 amCrazyTrain says:
Get rid of the Senate altogether — it no longer makes sense and is so anti-democratic that if another country used such a system (whereby people in Wyoming are represented by SEVENTY TIMES more than what people in California are), we would rightly object that it is not even close to a truly democratic system. Of course, there are some constitutional obstacles to getting rid of the Senate — but if we are going to talk about pipe dreams, this one makes more sense.
October 5, 2009, 10:29 amGabriel McCall says:
Ben Franklin, in urging the ratification of the proposed Constitution, made the argument that it would inevitably lead to despotism, but any other version of the document would probably do so even more quickly.
Even if Truslow is right, arguing over the 17th seems the least of our worries at the moment.
October 5, 2009, 10:29 amPubliusFL says:
Bug or feature?
October 5, 2009, 10:41 amAllan Walstad says:
The Constitution established a federal–not a national–government. The states were understood as sovereign entities that had ceded only specific powers to the feds. Having senators chosen by state legislatures was part of the system of checks and balances. Senators would have much more of an interest in defending the powers of their state government from federal encroachment.
In particular, the sovereign nature of the states was reflected in the exclusive power of the state-selected Senate to ratify treaties. With popular election of senators, it makes no sense that treaties do not require House ratification as well. So now a treaty can supersede state laws, not only without the check provided by state legislature selection of the ratifiers, but without even the full approval of Congress that would be required of any other federal legislation.
Some people rail against the fact that some states have far more per capita representation in the Senate than others do. Again, the point is the we have a federal government, not a national one. That was part of the deal whereby we got a union instead of just an collection of independent former colonies. As far as I’m concerned, states that don’t like the federal system should feel free to secede and set up a national system for themselves.
October 5, 2009, 10:59 amrarango says:
Re the 17th amendment–my preference is to repeal it and put the senate back under the state legislature’s control. Seems to me another unintended consequence of the 17th is that it takes what should be fundamentally an office to further the interests of their state, and in too many cases catapults a senator onto the national stage. The senate, based on a popular vote at the state level, tranforms many senators with a popular base in a given state into the probably mistaken belief they might have a shot at the presidency. This exercise in what I believe to be narcissism diminishes their productivity both for their home state and the republic as a whole. Anyway just my .02
October 5, 2009, 11:35 amPersonFromPorlock says:
Try this: any time a federal law is passed that requires some fresh yielding of state power to the federal government, sitting senators are barred from seeking re-election. This may work, or it may engender a new, ingenious and wonderful legal definition of “yielding.”
October 5, 2009, 11:44 amSoronel Haetir says:
I’ve put this idea a couple times before, a move to something different from both what we have now and what the pre-17th regime provided. Elect dual state-federal officials to fill the Senate. State governors are the obvious first choice, each state could be left to assign another state wide officer for the second seat. This would take care of the “they are taking away your vote” objection.
I’ve also seen proposals for nationally elected senators, such as former presidents becoming senator for life without an assigned district, but I don’t like them. Would much prefer senators somehow be forced to consider what is actually good for their state, but am honestly not sure such is possible.
October 5, 2009, 11:51 amLior says:
Rich B: One motivation for repealing the 17th Amendment is that State-appointed Senators might work to reduce the power and scope of the Federal Government. If this happens then there would be fewer national issues for you to be concerned about. Indeed, State issues and Federal issues are different, but Congress as currently constituted seems to be ignorant of this fact. As another commenter about notes, if the only point of the Senate is to be another place for popular representation in the Federal legislature then it merely serves to duplicate the House.
October 5, 2009, 11:51 amPubliusFL says:
Perhaps it’s no coincidence that all presidents elected as sitting senators have come during the era of popular election of senators.
October 5, 2009, 12:02 pmloki13 says:
The Constitution established a federal–not a national–government. The states were understood as sovereign entities that had ceded only specific powers to the feds.
That is both true and not true (which is to say, true but misleading). There is a federal government, but it is not composed *of* the states or even *for* the states (cf. the Articles of Confederacy). We have a system of dual sovereignty- the United States is sovereign, and the states are sovereign. This is a big difference- remember that the Federal government does not act through the states (cannot commandeer a per the 10th Am.), but rather through the People who are citizens of the United States.
“We the People (not the states) of the United States, in Order to form a more perfect Union. . . .”
October 5, 2009, 12:31 pmrj says:
Just like the “limit the size of bills in Congress” debate here a couple of weeks ago, this editorial is rather up front about the goal: reduce the size of the federal government vis a vis the states. Once again, it’s a way to enact policies that have been rejected by voters for more than a century through procedural parlor tricks.
October 5, 2009, 1:39 pmbyomtov says:
Per the linked article:
While a Member of the House would represent the interests of the people as citizens, a Senator would represent the very different interests of the people’s sovereign state governments.
I don’t really understand this. How do (or why should) the interests of the people of, say, Michigan, be “very different” than the interests of the Michigan state government? Are the members of the Michigan state legislature some sort of elite group that is entitled to its own representation at the federal level? Why should the system be biased in favor of their interests as opposed to those of the citizens of Michigan?
One more point. The structure of Congress was a compromise needed to unite the nation under the Constitution. That doesn’t imply that it is necessarily the wisest way we could possibly arrange our national legislature. To argue that something is a terrific idea because that’s the way the Founders set it up is not very convincing.
October 5, 2009, 1:48 pmloki13 says:
To argue that something is a terrific idea because that’s the way the Founders set it up is not very convincing.
…..but……but…….. THE FOUNDERS! They carried the Constitution down from Mt. Sinai… or did Washington bring it with him when he crossed the Potomac?
October 5, 2009, 1:55 pmRepeal 16-17 says:
Repealing the 17th Amendment would be a way to restore a check the Founders placed on the Congress. If repeal is not a satisfactory option, then we need another way for the States to be a check on federal authority. The fact that the old chestnut of State Nullification has been raised by multiple States (e.g., California with medical marijuana and Montana with gun control) shows that the States want to be such a check, just as the Founders intended.
October 5, 2009, 2:00 pmloki13 says:
Wow. I missed the Amendment (is it in the penumbra and emenations of the 10th, perhaps) that allows for state nullification. You’d think the FOUNDERS, being all magic and stuff, would’ve put that in writing, somewhere near the part about choosing the Vice President… or maybe the slave trade (hey…. they get a few do-overs, right?).
For more substantive points:
1. TJ was behind the whole Kentucky/Virginia “state nullification” attempts during the Alien & Sedition Act controversy. Thing is- they never did nullify. Also, TJ wasn’t nearly as fond of it when he became POTUS….. AND they were incredibly controversial at the time (as many things are during a young Republic). So, no dice.
2. Next attempt…. well, we had a war to settle that. You may have heard of it?
3. Your examples aren’t nullifications, they are examples of the laboratories of democracy. Remember, though, that Federal Law is *supreme* (the FOUNDERS might have even put something in writing about that!) and when there is a conflict, the state law loses. Sets a floor and all that.
4. Loki13′s maxim- behind every wacky constitutional theory lies a desire to not pay the income tax. Good luck with the 16th!
October 5, 2009, 2:13 pmathEIst says:
PUBLIUS, all three? Harding, Kennedy, Obama. That’s not many in 24 elections.
October 5, 2009, 2:14 pmRepeal 16-17 says:
I was citing State Nullification as an example of the States wanting to again be a check on federal authority. I never claimed State Nullification was Constitutional. Try properly reading a person’s comment before responding to it. As for your disrespect of the Founders, that shows your lack of understanding of history. Their positive contribution to history is immeasurable. As for slavery, how were they to abolish it? Do you think the South would have ratified the Constitution if it banned slavery? As for the 16th Amendment, I believe it was properly ratified; I also believe it should be repealed.
I look forward to your next sarcasm ladened immature response.
October 5, 2009, 2:28 pmloki13 says:
You don’t want sarcasm? Okay then:
1. You raise state nullification, but give examples that are not state nullifcation. It is certainly unconstitutional- (which would go against the whole “Founders do no wrong idea”) which I pointed out. You don’t really think through the idea of state nullification, or why the Founders might have been against it, even putting in a *supremacy clause*. In short, your argument has been tried before and always found wanting. We are not the Eurpoean Economic Community, and we are not under the Articles of Confederation. We are the United States.
2. In addition to slavery (which is an example of how the Founders were not perfect, but often bowed to the political realities of their time… just like we do today!) you gloss over the VP selection process. That wasn’t put in there by political pressure or compromise (like slavery), but it was so obviously flawed that it had to be quickly changed. IOW, they simply screwed up. There are other examples if you wish to look, which brings me to:
3. The Founders did a very good job. The type of very good job that you might expect from a meeting of the best and brightest political and legal leaders of an era that are able to make decisions without public pressure or scrutiny. But they are not magical, mystical, or infallible. You cannot both appeal to their authority (this is the balance they wanted) while ignoring the very text they designed (with the supremacy clause).
Better? And, yes, good luck with that whole 16th Am. thing.
October 5, 2009, 2:36 pmRepeal 16-17 says:
I never claimed the Founders were “magical, mystical, or infallible”, so that’s a straw man argument. Also, I believe everyone agrees that the original Electoral College was seriously flawed. The Founders knew they might have made mistakes. That’s why they wrote Article V.
The acts of California and Montana are acts of State Nullification. California’s is an effort to nullify the federal Control Substances Act to the extent it prohibits medical marijuana and the Supreme Court’s decision in Gonzalez v. Raich. Montana’s is an effort to nullify federal gun control laws.
BTW, thanks for not being sarcastic (until the last sentence).
October 5, 2009, 2:49 pmloki13 says:
And as a further aside, the “Founders” didn’t intend anything. They were a group (committee) of people, with varying opinions. If we dug up Jefferson and Hamilton right now, I am sure we would get very different impressions about what the “Founders” intended (and, in fact, they themselves had very lively debates in Washington’s cabinet about what the Constitution meant).
So when someone is arguing to please ignore the text of Constitution, but pay attention to what the “Founders” intended, I know that what they really want is for us to enact whatever scheme they have devised that We, the People do not want, and are using the “Founders” as a cheap prop for moral authority.
October 5, 2009, 2:51 pmkunkmiester says:
“state nullification” I gather is an application of the 10th amendment. The 9th and 10th place limits on the federal gov by saying that it only has a few jobs, not anything you can get through Congress. They’ve been neutered by the courts, and ignored by the legislatures, and the current acts are to try to bring back some teeth. How well they’ll fair is anyone’s guess, but the gun laws at least threaten true action if not properly addressed.
repeal 16-17 should be calling it what it is, I’m not sure why he’s using the term “state nullification.” It wasn’t written into the Constitution that way.
October 5, 2009, 2:56 pmDavid Welker says:
This article linked to by Todd Zywicki strikes me as extremely superficial.
Not all of the Framers favored a bicameral legislature. Such a scheme was absent from the New Jersey plan entirely. Furthermore, while the Virginia plan did propose a bicameral legislature, the members of the first house would have been popularly elected and these popularly elected members would then elect the members of a second house. A link to the text of the short Virginia plan is here.
I know this complicates the simplistic narrative in question, but it also happens to be the truth. It is bad enough that this proposal to repeal the 17th Amendment is a blatant appeal to the authority of the Framers, who were not in fact perfect people, especially with their three-fifths clause and decision to protect slavery within the Constitution itself. What is worse is that this appeal to authority does not even take into consideration the fact that the Framers were themselves divided on (1) whether to have a second house at all (2) whether the number of members each state got in the second house would be based on population and (3) who would elect the members of the second house.
Furthermore, the Framers were not perfect beings with perfect plans. These simplistic narrative linked to here notwithstanding. If you are going to tell a story about history and the Framers, why not tell the true story? The article linked to is either (1) based on ignorance (2) purposely deceptive. There was not such clarity in making these decisions at the time of the Founding.
Better yet, why not forget appeals to authority altogether. The Framers had to struggle to even produce a far from perfect compromise. It should always be remembered that it was the imperfect government, with its built in protection for slavery and insufficient subordination of the states, which these imperfect people crafted which lead to a Civil War that killed over 600,000 Americans. How quickly the lessons of history are lost in the rush to create arguments from authority.
The bottom-line is this. Appeals to authority with respect to the structure of the legislative power are inappropriate. If you want to argue for one arrangement or another, you should actually make an a real argument not some lame appeal to authority. But if you are going to lamely make an appeal to authority, at least get the history right. The clarity that those who know nothing about history produce in their narratives is either the product of (1) ignorance or (2) intentional deception.
October 5, 2009, 3:01 pmRepeal 16-17 says:
“State Nullification” is a belief that each State can declare a federal law to be Unconstitutional, even if the Supreme Court has been silent regarding that law’s Constitutional or has upheld that law’s Constitutionality. That’s what California and Montana have done.
October 5, 2009, 3:04 pmloki13 says:
To use California (your example), how have they declared the federal law “unconstitutional”? Prosecutions are a matter of discretion- and California, under state law, is not prosecuting for medical marijuana. The DEA has been happy (until Obama) to prosecute in California. So…. did I miss the notice?
October 5, 2009, 3:14 pmChrisTS says:
David Welker:
At least the author of the article isn’t claiming that Madison was The True Lawgiver.
October 5, 2009, 3:20 pmChrisTS says:
One problem with having U.S. Senators selected by state legislatures is that the latter engage in such appalling gerrymandering as to render them pretty darned undemocratic, themselves. This of course feeds over into the U.S. House.
The Senate may not be a perfect device, but at least it gives all the people of a state a decent chance to be represented somewhere in Congress.
October 5, 2009, 3:25 pmSara says:
The author of the article asserts widespread corruption in the popular election of senators but provides not facts. What is he talking about?
October 5, 2009, 3:28 pmMark Jones says:
Repeal the 17th post-haste, then. The bribery would at least be cheaper. It would cost a hell of a lot less to bribe even a few hundred state legislators than to bribe the entire state. We’d still have corruption, but at least it wouldn’t be so egregiously expensive.
October 5, 2009, 7:12 pmSteve (CT) says:
Regarding ‘gridlock’, allow me to steal from publius & ask “bug or feature”??
How about repealing the 17th & then having the state Governor nominate someone that would either be approved or rejected by the state legislature? Could be an entertaining vetting process in each state, rather than letting DC have all the fun.
October 6, 2009, 2:30 amWilson Moore says:
It looks like the author does address it on the Restore Federalism site. I think it falls into the category of “feature”.
October 6, 2009, 6:02 amloki13 says:
Let’s look at this from a purely results-oriented framework. There is an assertion (that currently, senators represent national party interests and not state interests) and a proposed solution (let the state legislatures elect them instead of the people).
Addressing the first point, I think that the author understates the degree to which poltics (to borrow Tip O’Neill’s phrase) is local. FOr those who don’t think senators represent their state, I counter with , inter alia, Robert Byrd and Ted Stevens. In fact, senators are very attuned to the needs of their local electorate, both in terms of “bringing home the bacon” and in terms of their stances. For those who think otherwise, consider the position of some democrats (such as Baucus and Lincoln) on health care reform. Both are more interested in how their vote will play at home than they are in the needs of the national party. So I think that the author’s first contention is overstated.
Then there’s the second contention. There is the belief that state legislatures will be more atutned to their local interests. Why, exactly, is that true? If the evidence is their behavior before the 17th Am., one must also consider the difference in politics between then and now. There is much more of a feeling of “the Nation” as opposed to state interests- people feel that they are U.S. Citizens, and just residents of the state they happen to live in. Thi has influenced our politics as well- issues that are of national importance matter more to the average person than purely local issues, in many cases. The Federal Government is a very different beast than it was back then, and impacts people far more in their daily life. So it would be rational for state legislatures to select people based upon their positions on national issues (and bringing home the bacon).
Finally, there is this “pie in the sky” notion that a mere formal change will change the way things work. Does the author truly believe that the national party and interest groups will simply go “uh, yeah, guess we’re SOL now!” Or will they start enforcing discipline and spending moeny to influence the state legislatures? And instead of this influence being so(somewhat) easy to track, it will be even more opaque.
So in addition to the many other problems I have with this (starting with the idea of having an appointed, instead of elected, upper house, and ending with a basic misunderstanding of history and a rather pathetic “but it’s what the FOUNDERS would have wanted”), I think it wouldn’t work on a practical level.
October 6, 2009, 1:16 pmWilson Moore says:
I think the assertion is not that senators are representing national party interests, but that they are representing the interests of citizens (mostly by way of those citizen’s special interest groups, who fund campaigns). The House is tasked with representing citizens, and post-17th the senate duplicates that function. If the senate does what the house does, then there is no check to stop democracy from running its usual, historical course toward overspending and power creep. As to your second point, the constitution is based on the premise that every politician acts in his or her own greatest benefit. Pre-17th, it was in the senator’s interest to make the state (his employer and constituent) more powerful by making the federal government less powerful. The more power the senator can devolve to the state government, the happier his employer is. The more power that is consolidated in the states, the more representative it is to the people it governs. Why? Because as you say, politics is local. Citizens care about the politicians they know best.
October 6, 2009, 2:32 pmmarkm says:
The problem is, democracy invaded the Senate long before the 17th Amendment. Look at the background behind the Lincoln-Douglas debates in 1858. They were running for Senator – by orating about a national issue in the campaign for the Illinois legislature. Rather than the winner becoming a representative of the state, state and local issues became lost.
October 7, 2009, 6:29 am