Repeal the 17th!

About ten years ago, then Senator Zell Miller introduced legislation to repeal the 17th Amendment. At the time it was a new idea to me, and I was unprepared to take sides on it in spite of the endorsement of the idea by the one man in Washington I most respected. Here's what he said at the time.
[N]o matter who you send to Washington -- for the most part smart and decent people -- it is not going to change much.

The individuals are not so much at fault as the rotten and decaying foundation of what is no longer a republic.

It is the system that stinks. And it's only going to get worse because that perfect balance our brilliant Founding Fathers put in place in 1787 no longer exists.

Perhaps then the answer is a return to the original thinking of those wisest of all men, and how they intended for this government to function.

Federalism, for all practical purposes, has become to this generation of leaders some vague philosophy of the past that is dead, dead, dead. It isn't even on life support. That line on the monitor went flat sometime ago.

You see, the reformers of the early 1900's killed it dead and cremated the body when they allowed for the direct election of U.S. senators.

Up until then, U.S. senators were chosen by state legislatures, as Madison and Hamilton had so carefully crafted.

Direct elections of senators, as good as that sounds, allowed Washington's special interests to call the shots, whether it's filling judicial vacancies or issuing regulations.

The state governments aided in their own collective suicide by going along with the popular fad of the time.... As designed by that brilliant and very practical group of Founding Fathers, the two governments would be in competition with each other and neither could abuse or threaten the other.

The election of U.S. senators by the state legislatures was the linchpin that guaranteed the interests of the states would be protected.
Bill Whittle has a new piece on the subject, putting it in the context of the whole set of amendments that came out of the Progressive Era of American politics. The 16th was all about income taxes, to give the Federal government new wealth and power to act; the 18th about Prohibition, to give the Federal government new power to reach into the lives of every American and restrain their personal choice about what to drink with dinner. And the 17th, well...

It ends on a happy note. The 18th Amendment was repealed. Why not the other two?


Assistant Village Idiot said...

I'm game to try

Joseph W. said...

Prohibition may be on the way back in, in different form.

That said...I believe the original vision of the Senate was that the state legislatures would be full of educated men (a greater rarity then than now, at least if you define "education" as "attending school"), who would make informed choices as to who was suitable for the senate.

The way things are now, would a legislature pick a better candidate than the electorate? (I'm open to the idea but doubtful...the bad ideas that infect our electorate are as easily transmitted at second-hand as at first.)

According to this, Madison and other delegates to the Convention were trying to design the Senate with "permanency and stability" (so that they could represent the vested interests of the country, for example to resist any creditor-to-debtor redistribution schemes)...for good or ill, the Senate's got stability (in the sense of low turnover).

Tom said...

I don't see the difference, really. How are state politicians going to make sure senators represent the state better than direct election by the people of the state?

Also, quite a few states already had popular election of senators before the 17th amendment was passed.

douglas said...

I'd have to say I think it would have two benefits. First, I do think it would make Senators more attentive to the State than to K Street- or at least improve the balance- and people would start to take State level elections seriously (beyond governor). I'm fairly certain most people in California couldn't even tell you who their State Senator and Representatives are. There's no accountability in that at all. Tying Senatorial representation to those office might get people to take a little more notice of these things- and it might get the parties to have to go and make an effort in states they currently don't (i.e. the GOP in California).

Count me as a yea.

Grim said...

How are state politicians going to make sure senators represent the state better than direct election by the people of the state?

In the same way that the Founders otherwise balanced factions against each other. The state government has a set of interests that, right now, the Federal government is free to ignore because the states have no power at that level. The people as a whole don't have the same factional interest -- look at how many people are single-issue voters (gun rights! abortion! legalize weed!). But the state-level politicians, even if they are from different parties, are unified on not getting pushed around by the Feds.

Right now the only thing the states can do in the face of overweening Federal power is sue -- in Federal court.

Tom said...

Maybe I'm wrong, but I don't draw the distinction between the state government having no power and the state itself having no power. A Texas senator represents the state even if he or she is elected by the people of Texas rather than the legislature of Texas.

That said, maybe increasing the power of the state governments is worthwhile. I certainly think federalism is the right direction in general.

Something else the states could do, and I hope they actually do, is have a constitutional convention for the express purpose of limiting the federal government. After all, repealing the 17th would take another amendment; why not fix the power imbalance in one go?

MikeD said...

How are state politicians going to make sure senators represent the state better than direct election by the people of the state?

I would put it this way. Right now, the nation of Kiribati ( has more representation in Washington DC than your State's government does. When originally founded, this nation was SUPPOSED to be a Republic constructed of individual States having equal representation in the Federal Government to the People as a whole. The Senate was supposed to be there to temper the passions of the People (who would be represented by the House of Representatives). And we have literally removed that filter.

E Hines said...

Never mind that a State legislature-selected Senator was chosen much more easily by special interests.

Never mind that States often went without one--or both--Senators because the legislatures couldn't actually select one--or both.

Never mind that the odd Senator would get tossed from the Senate because he'd bought his seat from the State legislature.

Never mind that the Senator still represents the State, whether directly through his popular election, or indirectly through the popularly elected State legislatures.

I'm fine with popular election of Federal Senators.

If the interests of the citizens of a State are inadequately represented by their Senator, they know how to supply that defect, and it's on them alone to do so.

Presently, 28 of the Senators who voted up Obamacare are gone from the Senate. How many State legislatures would have achieved that?

Eric Hines

Grim said...

Well, I don't know, but 36 states have refused to establish exchanges. So -- plausibly 36.

Grim said...

Actually, your question has an ambiguity that I'm slow to recognize. Your standard is "28 Senators," but you actually asked "how many state legislatures..?" That was the question I was attempting to answer.

Now 36 states have 72 Senators. But only a third are up any given year. On the other hand, states are more reliably red or blue than the national popular vote; and we have had 2 of the 3 votes since 2010. So 72 divided by 3 is 24, times 2 is 48. That's probably the high estimate, but it's substantial.

Tom said...

MikeD: Right now, the nation of Kiribati ( has more representation in Washington DC than your State's government does.

But not my state.

If we really want to pass an amendment to give power back to the states, pass one returning the Commerce Clause to its original interpretation. That's far more important than the 17th Amendment.

MikeD said...

I'll concur with that as well. I'd also throw in "provide for the common welfare" also needs a little tightening up.

Ymar Sakar said...

It was quite obvious that democracy was a poison, even back then. But only a few people could actually face it.

Direction election of Reid via votes. That'll work out great until Reid can buy votes with power and immigrated gang bangers as enforcers.