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The 17th Amendment and federalism

By Robert S. Sargent, Jr.
web posted May 17, 2004

The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof… Article I, Sec. 3. U.S. Constitution

The Senate of the United States shall be composed of two senators from each State, elected by the people thereof… 17th Amendment to the U.S. Constitution.

On April 17, 2004, Senator Zell Miller, D. Ga., gave a "Floor Statement on Repealing the 17th Amendment." He said, "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 1900s killed it dead and cremated the body when they allowed for the direct election of U.S. senators….The 17th Amendment was the death of the careful balance between state and federal governments."

Two weeks ago on these pages, I suggested that the death of federalism was the fault of a Supreme Court that allowed the U.S. Congress to usurp the powers of the states, and a Supreme Court that imposed its personal morals on the country by finding rights not enumerated in the Constitution. Perhaps I should also consider the impact of the 17th Amendment on the death of federalism.

I believe that any time any of the fundamental principles of the Constitution are altered, the results are never an improvement. In arguing for a bicameral legislature, James Madison, in the Federalist, No. 63, wrote, "(The people) may possibly be betrayed by the representatives of the people… (but) the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar (my emphasis) bodies is required in every public act." The Constitution requires the three political branches, the Executive, the Senate, and the House, (not the Judiciary Mr. Schumer!) each be elected in a dissimilar way: The House by the people, the Senate by the state legislatures, and the President by electors. The 17th Amendment changed that fundamental principle.

Again, in The Federalist, No. 63, Madison wrote, "…there are particular moments in public affairs, when the people stimulated by some irregular passion, or some illicit advantage… may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens…" The problem today is that by changing the fundamental principle and having direct elections, Senators are caught up in the same passions as Congressmen.

Criticizing the 17th Amendment, C.H. Hoebeke, a Fellow in Constitutional History at the Center for Constitutional Studies, wrote, "(D)irect elections among large constituencies all but guaranteed the development of permanent electioneering machinery, the imperative of fund-raising, as well as the strong likelihood of alliances between candidates seeking what Madison Avenue calls ‘name recognition' and the organized interests willing to pay to help them get it." The original purpose of the Senate representing the states and acting as an objective counterpart to the House, has evaporated into an allegiance to national parties and special interests. These developments must have the effect of moving the senator's priorities from the states to the national agendas of their political party. Thus the confirmation of a federal judge takes on much more importance than some specific regional interest in a state.

John Dean (what happened to Maureen?) recently wrote in a FindLaw column, "The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the 17th Amendment (along with the 16th Amendment…) that was the driving force behind federal expansion." (Bruce Bartlett makes the same argument in last week's May 12 Washington Times) I'm not willing yet to give up my argument that it was the Supreme Court who allowed the end of federalism, but I'm certainly open to considering that the 17th Amendment was important in this unfortunate development.

What would happen if we repealed the 17th Amendment? Certainly the state's interests would be better represented. For example, Senator Miller argues that there would be no such thing as unfunded mandates that will cost the states $33 billion in 2005. I would think there would be less partisanship with appointed senators, and one thing for sure, there would be an end to those horribly expensive, lengthy campaigns. Would it bring back the era of Clay, Calhoun, and Webster, all senators appointed by state legislatures? Nice thought.

Robert S. Sargent, Jr. can be reached at rssjr@citcom.net.

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