Repeal of the 17th Amendment
In returning power to the states, Americans would be bringing government closer to the people, where it belongs.
By William Lane DECEMBER 10, 2018
In the wake of the bitter Brett Kavanaugh fight and this year’s especially contentious midterms, many are criticizing the Senate as an institution. Rep. John Dingell recently argued in The Atlantic that the Senate should be abolished completely, on the grounds that its guarantee of equal representation is “antiquated” and “downright dangerous,” because it allows states representing national minorities to work together to thwart the will of states representing national majorities.
Some rightfully bemoan the deterioration of collegiality. Others, like Dingell, less persuasively argue the upper chamber, with its lopsided representation, is an affront to democratic governance. Largely lacking in this debate are attempts to address the more fundamental question: What is the purpose of the Senate?
The Founders, of course, had a clear answer. In drafting the Constitution, they created a robust national government whose powers far exceeded what had preceeded it under the Articles of Confederation. The Supremacy Clause, for example, ensured that statutes passed by Congress would supersede state law. Some feared that under such a system the state governments would stand defenseless in the face of federal power.
As George Mason explained at the convention in Philadelphia:
We have agreed that the national Legislature shall have a negative on the State Legislatures — the Danger is that the national, will swallow up the State Legislatures — what will be a reasonable guard agt. this Danger, and operate in favor of the State authorities — The answer seems to me to be this, let the State Legislatures appoint the Senate …
Mason’s fellow delegates agreed, and his proposal passed unanimously. In granting state legislatures the responsibility for electing their respective senators, the Constitution ensured that states had a voice under the new system. Senators, as representatives of the states, could check any desire Congress might otherwise have to encroach on areas of governance properly belonging to the states. Thus, just as checks and balances among the branches of the national government — the legislature, the executive, and the judiciary — ensured that no one branch would accumulate too much power. Giving the states a voice in the Senate preserved the balance of power between them and the national government.
By the early 20th century, however, as progressive and populist sentiment spread, Americans began to view the manner of electing senators with disdain. This was the era of the referendum and the recall, a time in which democracy as an ideal was elevated above all else. In the spirit of the age, many considered the Senate an affront to democracy, a relic of an unenlightened past.
Americans thoroughly failed to appreciate the crucial role the Senate played in our federal system. And in 1912, Congress proposed the 17th Amendment, which the states ratified the following year. Senators were henceforth to be elected by popular vote. The states had been silenced.
In ratifying the 17th Amendment, Americans sought to bring government closer to the people. As noble as their aim may have been, the amendment has achieved precisely the opposite: as states ceded power to Washington, the government grew ever more distant from the people. No change throughout our nation’s history has done more damage to the constitutional structure than the 17th Amendment. Many conservatives are quick to cite the New Deal as the ultimate betrayal of our carefully crafted system of limited government, but Roosevelt’s revolution would in all likelihood not have been possible without the 17th Amendment.
In silencing the voices of the state legislatures, the direct election of senators destroyed the ability of states to resist federal intrusions into local affairs. As a result, the power of Washington steadily expanded. It continues to grow to this day, regardless of which party holds power.
To be sure, the Supreme Court has tapped the brakes from time to time on federal overreach. For example, the court has held that the so-called “Anti-Commandeering Doctrine” prevents Congress from compelling state officials to enforce federal law. And on a few occasions the court has put a stop to Congress’s attempts at regulating thoroughly local activities through the auspices of the Spending and Commerce Clauses. Examples such as these, however, are few and far between.
As Justice Antonin Scalia used to note, nine federal judges sitting in Washington cannot be relied upon to guard the interests of the states qua states; the court has neither the incentive nor the institutional willpower to do so.
The natural result of States forfeiting policymaking authority to the federal government is that debate over an increasing number of issues is nationalized. Californians are not the same as Texans. New Yorkers see things differently than Alabamans. Under a healthy federal system, Americans would live and let live. So long as basic constitutional rights are respected — specifically those guaranteed by the 14th Amendment — states would be free to craft laws that best suit the needs of their own citizens. Instead, our system today imposes a one-size-fits-all solution. And because the resolution of policy questions has national consequences, debate becomes supercharged, and a substantial portion of the population is bound to leave the table disappointed.
The framers had it right. In a functional federal system, constituent states must have a voice. The senate should be that voice. To that end, we must take a serious look at repealing the 17th Amendment. In doing so, however, we need not assume that the Senate as conceived in Philadelphia was perfect. Revisiting the 17th Amendment would be an opportunity to improve upon the system the framers bequeathed us.
For example, anti-Federalist Luther Martin believed that state legislatures should not only have had the power to appoint their senators, but also to remove them. Granting state governments some mechanism for recall would be a powerful means of ensuring that rogue senators in distant Washington not flaunt the will of the states who sent them there.
In whatever manner it is undertaken, eliminating the direct election of senators would greatly improve our system of government. Local elections would become more significant, given that their outcome would determine a state’s representation in the Senate. Debate within the chamber would improve as senators’ political survival would no longer be at the whim of public opinion. Furthermore, a state would be less willing to allow its senator to use his tenure in office as an audition for a presidential run, an all too common occurrence today.
Above all else, the states would regain their voices. In returning power to the states, Americans would be bringing government closer to the people, where it belongs. It is time to give the states a meaningful role in our federal system. Repeal the 17th Amendment.
William Lane is an attorney practicing in Washington, D.C. He previously served as a special counsel on the Senate Judiciary Committee for Justice Gorsuch’s confirmation. He graduated Harvard Law in 2015, and served as an Army cavalry officer in Iraq before that.