The 17th Amendment to the U.S. Constitution was ratified in 1913. It states: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof.”
The wording of the amendment is clear and concise. However, it’s ratification represented a sea change in how U.S. Senators were chosen in America. Prior to the amendment, U.S. Senators were chosen by the respective Legislatures of each state. This sea change is still a point of contention today.
To understand the full implications of the 17th Amendment, there are some basic principles about the structure and history of American government that must be considered.
First, America is a Constitutional Republic. The Federal Government was created by the States, and the resulting Constitution codified the principle of Dual Sovereignty. Dual Sovereignty means that the Federal Government has authority only in limited and specific matters, while the States retain authority in all other matters. This principle of Dual Sovereignty is best summarized by the 10th Amendment. It is why America is called the United States (plural) rather than the United State (singular). We are a federation of sovereign States.
Second, the Constitution is mainly a set of elegant checks and balances designed to ensure that the Federal Government does not usurp Individual or State Sovereignty. The purpose of these checks and balances is to ensure that the power of the Federal Government is constrained in as many ways as possible to protect the interests of the People and of the States. Keep in mind that the Founders had just fought a Revolutionary War to escape the clutches of an overly powerful central government.
Third, one of the important checks and balances in the Constitution is Bicameralism. Bicameralism means that the Legislative Branch is divided into two distinct chambers. One is the House of Representatives, which is chartered with advancing the will of the People via popularly elected representatives. The other is the Senate, which is chartered with advancing the interests of the states as sovereign entities. When proposed legislation successfully passes both the House and the Senate, this indicates that the will of the People (Individual Sovereignty) and the will of the States (State Sovereignty) have been satisfied.
Fourth, the architecture of our government was designed to recognize that each State, no matter how large or small, has unique cultures, issues, and characteristics. It was also designed to recognize the related concept of Subsidiarity, which means that political power should be established as close to the People as possible. The intent was to shelter the unique political interests of each State from being trampled or ignored by national majoritarian movements. It’s difficult for a state to represent the unique interests of its People if those interests are being overwhelmed by nationwide factions and passions.
In consideration of the above points, the original Constitution established the Senate as the protector of State Sovereignty. It did this in several ways. First, it allocated two Senators per state, regardless of the size or population of each state. This gave equal representation for each state in Congress. Second, it established the Electoral College for choosing the President. This gave each state (in proportion to the weight of its two Senators and its population-driven number of Representatives) a clear voice in the selection of the President. Third, the selection of Senators in each state was made by each State Legislature rather than by popular vote.
This last point is the major source of controversy regarding the 17th Amendment. One side of the controversy believes that the selection of U.S. senators by State Legislatures was consistent with the original intent to secure States’ Rights. The other side believes that allowing people to popularly elect their U.S. Senators is a clearer expression of Democracy.
Here are some things to consider regarding this specific point.
First, the United States is not a pure Democracy. In fact, the Founders feared pure Democracy as much as they feared tyranny and anarchy. Benjamin Franklin described Democracy as “two wolves and a lamb voting on what to have for lunch”. John Adams described it as the “tyranny of the majority.” Our Constitution does have a limited element of Democracy wherein citizens directly elect their Representatives in the House. The House was designed to be the direct voice of the people in one branch of the government, among many other checks and balances that were not a function of popular vote. Neither the Senators nor the President were to be elected by popular vote. The States that founded the Federal Government were very protective of their sovereignty and did not want nationwide majoritarian political movements to trample it.
Second, popular vote for U.S. Senators has brought with it the very danger that the founding States feared – unique state interests are being overwhelmed by national majoritarian political movements. National media, national political parties, national special interest groups, and distant partisan financiers are funneling resources to “battleground” states to influence the election of the U.S. Senators in those states. “Winning” the key Senatorial campaigns advances the national ambitions of these invasive influencers and rewards their national constituencies at the expense of the unique interests of each invaded state. It is much easier for these invasive national influencers to circumvent the interests of a state by influencing the election of just two U.S. Senators than it was for them to influence the election of a much larger number of State Representatives who were previously responsible for selecting the Senators.
Third, the concern about national influence on State affairs applies not only to the process of electing the U.S. Senators, but also to their bias in all future political decisions. Who are they beholden to? Are they advancing the interests of the citizens of their State, or of the national influencers that funded their election? The massive funding required to campaign for the votes of every state citizen is a great opportunity for well-funded national lobbyists to skew political outcomes in their favor.
Fourth, popular vote for U.S. Senators reduces the distinction between the Senate and House in the Federal Government. It therefore reduces the power of Bicameralism as a check and balance against majoritarianism and national passions. What is the difference between the House and the Senate if the members are popularly elected in both? Why not just have one chamber in the Legislature rather than two? When considering these questions, it become clear that there must have been a substantive reason for the Founders to create a meaningful distinction between the two chambers. The distinction is that the U.S. Senators were meant to represent the States in the Federal Government because it was the States that created it, while the U.S. House members were meant to be the representatives of the People at large.
Fifth, when State Legislatures are responsible for selecting U.S. Senators, it places much greater importance on electing the right Legislators, and it puts their political decisions under much greater scrutiny. It becomes imperative for state citizens elect Legislators who are committed to protecting their State from Federal Government usurpation of authority. This elevates the importance of state-level politics relative to national politics, which is consistent with the principles of Subsidiarity and of States’ Rights. It gives the State Legislature actual influence over the political direction of the Federal Government. This influence is lost completely when U.S. Senators are popularly elected. Also lost is the more direct and influential link between state legislative ambitions and Federal legislative ambitions.
In conclusion, the selection of U.S. Senators by State Legislatures rather than by popular vote is a more effective check and balance against Federal overreach, it minimizes the influence of national passions on state politics, and it increases the power of the State Legislature in the never-ending struggle to protect State and individual Sovereignty.
The 17th Amendment, on the other hand, moves us closer to the “tyranny of the majority”, it exacerbates the trend toward national government and away from local government, and it makes the appetite of Franklin’s two wolves more dangerous to the lamb.
The 17th Amendment must be repealed if we hope to retain our Constitutional Republic and to protect its fundamental principles of Individual Sovereignty and State Sovereignty.