On May 13, 1912, Congress passed the 17th Amendment to the U.S. Constitution, which was ratified on April 8, 1913. The 17th Amendment instituted the direct election by voters of U.S. senators who until then were chosen by state legislatures pursuant to Article I, Section 3 of the Constitution. The Amendment was part of the early 20th century’s progressive movement reforms. It is time to repeal that amendment.

The remarkable group of men who devised our Constitution and the Bill of Rights sought to enhance the powers of the federal government (which were ineffectual under the Articles of Confederation), but share that power among the legislative, executive, and judicial branches of government. But they also believed that the state governments should have significant residual powers as evidenced by the 10th Amendment that reserves all powers not expressly delegated to the federal government to the states or the people.

In constructing the legislative branch of the federal government, the Founders established a bicameral Congress -- the House of Representatives based on a state’s population that would directly represent the people in their legislative districts and the Senate that would afford the states equal representation in Congress regardless of their population. In Federalist 62, James Madison or Alexander Hamilton (we’re still not certain which man wrote it) explained the benefits of Article I, Section 3:

It is equally unnecessary to dilate on the appointment of senators by the state legislatures... It is recommended by the double advantage of favoring a select appointment, and of giving to the state governments such an agency in the formation of the federal government... (emphasis added)

Another advantage accruing from this ingredient in the constitution of  the senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of  a majority of the states. (emphasis added).

The phrases “giving to the state governments such an agency in the formation of the federal government” and “no law or resolution can... be passed without the concurrence... of a majority of the states,” reveal what the Founders intended -- a strong, institutionally protected federalism; the originally designed federalism that the 17th Amendment emasculated.

When state legislatures selected U.S. senators, that legislative body benefited from the wisdom, prudence, and eloquence of Daniel Webster and Henry Clay, among others. Today’s Senate is exhibit #1 in support of repealing the 17th Amendment: Chuck Schumer, Diane Feinstein, Mitch McConnell, Lindsey Graham, Richard Blumenthal, Cory Booker, Richard Durbin, Bernie Sanders, Patrick Leahy, Susan Collins, Mitt Romney -- the list could go on and on. And they were preceded by the likes of Edward Kennedy (the so-called “Lion of the Senate”), Hillary Clinton, Arlen Specter, Robert Byrd, Al Gore (Sr and Jr), Robert Kennedy, Lyndon Johnson, John Kennedy, Sam Ervin, and many others. To be sure, some of these politicians may have reached the Senate even if the 17th Amendment had never been passed and ratified, and there are examples of statesmanlike senators since 1913 -- Robert Taft, Henry M. Jackson, and Daniel Patrick Moynihan come immediately to mind. But the more fundamental point is that repeal of the 17th Amendment would return us to the structure of federalism devised by the Founders to limit federal power and preserve our liberty.

The current U.S. Senate elected pursuant to the 17th Amendment has 50 Republicans and 48 Democrats and 2 independents who vote with the Democrats. The Vice-President is a Democrat who can vote to break a tie. According to Americans for Tax Reform, Republicans control 30 state legislatures in states with a combined population of 185,164,412, while Democrats control 18 state legislatures in states with a combined population of 133,888,565. Under the system originally devised by the Founders, the U.S. Senate would be overwhelmingly Republican -- with at least 60 GOP senators.

The Founders made the amendment process difficult, and rightly so. Should the Republicans take over the House and Senate in 2022, repealing the 17th Amendment should, but probably won’t, be a priority. An amendment to repeal the 17th Amendment can be proposed by a two-thirds majority vote in both houses of Congress and must then be ratified by three-fourths (38) of the state legislatures. Alternatively, two-thirds of the states can call a Constitutional convention for the purpose of passing an Amendment, and if passed that, too, must be ratified by three-fourths of the state legislatures or Constitutional conventions in the states.

The United States is a republic, not a pure democracy. We elect our presidents indirectly via the Electoral College, and from 1789 to 1913 we selected our U.S. senators indirectly by virtue of who we voted into office in state legislative races. Repeal of the 17th Amendment would re-institutionalize federalism and place needed limits on the ever-expanding power of the federal government.       

Image: US Senate

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