Repeal the 17th Amendment

by Jeffry R. Fisher

What's That???

Okay, I admit it, the 17th amendment is an esoteric topic. The little known and deceptively innocuous 17th amendment, squeezed* between the hated income tax and the already repealed alcohol prohibition, took the US Senate away from the states and gave it to directly to the electorate of each state. So what, you ask? Because it directly affects the structure of national government, its strategic importance is enormous.

Abstract:

The Senate is slightly different from the House in that it gives more weight to rural voters, and its at-large elections are less safe than gerrymandered House districts. However, these factors do no more than shift the special interests to which populist legislators pander. Therefore, the US Senate is merely a dog with different fleas.

By contrast, when senators were chosen by state legislators, the Senate acted as a bridge between state and national legislatures, referring issues in both directions. Furthermore, answering to the states biased the Senate against federal intrusion into state sovereignty, a vital "check" in the Constitution's separation of powers. However, it was one still able to pass, among other things, the 13th & 14th amendments.

To restore the Senate to its intended purposes as a bridge and as a throttle, the US should repeal the 17th amendment, perhaps substituting other, less destructive patches to address the issues that the 17th tried (but failed) to fix.

"I Thought the Senate Existed Only to Protect Small States"

That's what we are taught in public schools, much to their shame. Ignoring population was just a part of the Senate's general purpose of preserving state sovereignty. The founding fathers wanted to have their cake and eat it too. By that I mean that they wanted the Congress to express the will of the people and answer to the states at the same time. The whole reason that we even have two chambers of legislature is to serve those two purposes simultaneously.

The Constitution's original plan was a stroke of genius. It created one chamber elected by popular vote and another appointed by states. Both chambers had to approve a bill for it to go to the President for a signature. Therefore, all national legislation had to be both popular and truly national. In this, the purpose of the senate was to guard state sovereignty from central government's natural tendency to draw power to itself.

A Bridge Too Far?

Before the 17th amendment, the US Senate was THE bridge between state and federal levels of government. Without it, we now have the National Governor's Association and similar ad hoc organizations trying to perform some of that function. However, with no formal authority, they are at the mercy of the populist and all powerful Federal government.

On the other hand, a Senate chosen by and answering to state legislatures should have a tendency to decentralize authority. After all, if you are a state legislator voting on whom to send to DC, are you going to choose somebody who's going to step all over your toes? Even if you're a tax and spend interventionist, you should appreciate being left to write your own legislation so you can claim more of the credit for any program. And, if you are a senator, are you going to intervene in the business of the people who can replace you? Maybe, but probably not for long.

Fascism at the Door

In Fascism at the Door, Joseph Farah recently observed, "For many years now, the federal government has been usurping the powers of the states." That's because of the 17th amendment. If senators still answered to state legislators, do you think a majority of them would vote to grant federal usurpation of states' sovereignty?

The main reason we have so much redundancy between state and federal programs is because we elect representatives to each who answer to the same constituencies. States need input at the federal level to decide which issues are national and which are local.

State governments could also escalate issues to the Senate when they had differences. Now, there is no formal connection; our system is broken.

Trust in the "Common" Folk

Objection: "The founding fathers gave the Senate to the states only because they had a cynical and archaic mistrust of common folks."

In an abstract sense, they did distrust the rabble, but they were (and still are) justified. The founding fathers trusted the people to express their will for what they wanted, not careful consideration of the most proper channels and methods for satisfying their whims. Therefore, the founding fathers wanted the national legislature to be forced structurally to answer to the states. That way, the central government could be made strong enough to accomplish its assigned tasks, but the states would have a leash on it so it wouldn't stray into states' internal affairs.

The problem with the 17th amendment is that whenever there's a populist cry for something right now, the various states and the federal government step all over each other trying to answer it (with the feds doing most of the trampling). We get redundant waste and federal intrusion into local questions that Congress was not and is not authorized to decide.

Democracy

Objection: "But... but... If Democracy is Good, Isn't More Better?"

No, not if your definition of "democracy" equates to majoritarianism. See "Democracy is More Than Just Voting".

Decentralization

Giving the state level of government a checkpoint in the national legislative pipeline inhibits unnecessary centralization of power. Unfortunately, only a very few scholars truly comprehend the proper limitations of majority rule (if you comprehend, then you are a scholar and a noble). Too many shortsightedly believe that giving the Senate back to the states would reduce democracy and would therefore diminish the power of the people.

I counter that the House of Representatives adequately expresses the will of the people, and that the people's will needs to be checked to be sure that it is expressed at the most appropriate level. A state-appointed Senate would be a conduit through which legislative impetus would pass in both directions, most importantly outward.

By drawing power out of the center, a state-appointed Senate would bring power closer to the people, where their democratically elected state and local representatives can more dutifully represent them. Furthermore, each state can address its own culture and needs better without dilution from competing outside interests (so long as individual rights are respected). Therefore, restoring balance between state and federal levels of government is far, far more democratic than a popular Senate that is almost a clone of the House.

Tyranny?

I have received this objection to repeal: "Taxation without representation is tyranny"

Huh? The people would still elect representatives to the House every two years, so who's without representation? Gee, I wish objections were all this easy.

The above objection (a real one) is so lame that I almost discarded both it and my reply. However, I wanted a segué to my tax proposal. I have proposed that we amend the constitution to restrict the US government's tax authority to levying taxes only on the states. Then it would not be able to gather any of its own taxes from citizens, so the above objection would be doubly moot. What makes my tax proposal relevant to the discussion of the Senate is that if the states are directly taxed, then they will need some way to curb the federal appetite. They would be the oppressed unless they did have representation. Giving the Senate back to the states would give them that power.

If you want to talk about tyranny, then try this: When too much power is collected in one place, it becomes a tempting target for a despot to grab the reins. By decentralizing power, we make it more difficult for any one individual to flout the constitution to rule unfettered and unchallenged. That's why we have states, three branches of government, four branches of military, and individual gun ownership rights.

Furthermore, with the federal government held in check by states' hold on the Senate, citizens could (and would be motivated to) turn more political attention to the state capitol to rein in its power. As it is, our fragmented political will is divided between multiple taxing and regulating authorities. We are being divided and conquered.

When the protection of liberty is an issue, government inefficiency is a Good Thing™. Instead of making government efficient in its taking control of many things, we should keep it inefficient at the taking so it has only a few things to do and can do them well.

Why Was Such a Bad Amendment Ever Passed?

As near as I can tell, there were three motives:

Progressives (socialists) wanted the nationalization that resulted. They still do. They will oppose its repeal. If patriots succeed in raising the 17th as an issue, you can count on socialists to blitz mass media with all manner of lies and fears. Front and center will be the "more democracy is better" fallacy. Look for it, reject it.
All but one of the states have bicameral legislatures. As partisanship evolved during America's first century, divided state legislatures sometimes couldn't agree on who their states' senators should be. If you look at how divided legislatures badly miss budget deadlines today, you can see what the problem was like. However, there was yet another wrinkle: Each state legislature needed to come up with a majority, not just a plurality. Therefore, a deadlock could form even within one chamber.
Corruption bought some senators (or state legislators' votes for them). The people were supposed to be too numerous to be bought. Those who fell for that assumption failed to realize that a populist Senate would blow open the last lock on the federal treasury. They also lived before TV.

If We Repeal, Then How Do We Address Those Old Problems?

Socialism: Destroy it (easier said than done). Explode its demagoguery and propaganda at every opportunity.
Deadlocks: Eliminating the six year term is a start. At that, once a senator is in, then s/he can serve until whenever the state legislature can come to agreement on a replacement. No agreement, no replacement. However, death and resignation can still interfere, so two more sure fire solutions would be very useful: First, have each state legislative chamber use approval voting to eliminate deadlocks within single chambers. Second, allot one senator to each chamber in those states that have two.
Buying senators: One of the complaints against the old selection system was that senate seats were bought by bribing state legislators. It was claimed that the electorate at large was to big to be bribed. In the last century, we have discovered to our horror that the electorate can be bribed by populists willing to raid the treasury, so let's go back to square one and try to fix the original problem.
First, eliminating the six year term lessens the value of any one state legislator's vote on one day, so it's less attractive to bribe. Instead of buying a six year seat, a crass bribe buys a seat that can be reassigned the next day. Second, make bribery illegal. Wait, it already is. Okay, raise the penalty for bribery. Call it treason and execute both the payer and the recipient.

De Facto Popular Election

Prior to the enactment of the 17th amendment, several states had already engineered de facto popular election of Senators.

Imagine having an ad hoc straw poll today for US ambassador to the UN and expecting the President to rubber stamp the people's choice demagogue. It sounds absurd, but upon reflection, it parallels how nearly every state adopted popular Electoral College selection schemes during the 1800s, turning the Presidency into precisely the sort of shallow popularity contest that the Founders had wanted to avoid.

Having Senators answer to the states is so strategic that I would call populism a problem needing a solution rather than a reason to acquiesce to the status quo.

First, we have yet another reason to eliminate the fixed six year term. By allowing state legislatures to vote at any time, the popular (populist) pressure will be diffused. However, I don't think that will be enough.

In addition, we need the best device for eliminating voting pressure: the secret ballot. Require state legislatures to vote by secret ballot so that no state legislator's vote may be unduly influenced by any improper forces, not even populism.

Conclusion

The original Senate plan failed to anticipate inconveniences in its selection mechanisms. About one century later, our great grandfathers tried to "fix" these nuisances by recklessly discarding a whole vital structural connection. Now, another century on, we can see clearly what a grave error that was. We can also see better how to correct the original deficiencies.

Therefore, we can restore a giant pillar of liberty that was destroyed. As the founding fathers hoped, we can have our cake and eat it too. We can have a national legislature that respects the sovereignty of the states at the same time that it expresses the will of the people. Though it has taken 220 years to build the proof, it is better late than never. Make it so.