There’s a faithful remnant among conservatives that continues to agitate for repeal of the 17th Amendment, allowing the direct election of U.S. senators.  They claim that the amendment undermines federalism and that returning to the original method for picking senators -- selection by state legislatures -- would reinforce states’ rights. 

The anti-17th Amendment folks pop up occasionally.  The most recent example was a commentator trying to glom on to the Supreme Court’s Chevron decision and argue it would be another step towards good government.

The chances of the 17th Amendment going away are about as realistic as the survival of a Joe Biden ice cream cone in certain warm eschatological places.  There is no way you get to repeal.  There is no way 290 congressmen and 67 senators will be marshalled to do that.  The alternate is trying through state conventions.  In either instance, 13 states not ratifying the amendment will be enough to defeat it.  Right now, I can give you at least 14 that would never ratify it: Vermont, New York, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, California, Oregon, Washington, Illinois, Minnesota, and Hawaii.  So, why flail a dead horse?

And why write about it?  Because conservatives have great skill in going down dead-end rabbit holes over pure conservative theory that throw life lines to their opponents who are otherwise floundering amidst real political issues. 

2024 is about immigration, inflation, wokeism, Joe Biden’s record and fitness to continue serving.  Conservatives need to stay laser-focused on those five things, not on Pied Piper schemes from the storehouse of conservative sugar plums.

But, you say, isn’t is true that the 17th Amendment has undermined federalism?  Yes, it probably did.  But there are some things about which there is no turning the clock back, at least not 111 years.  Robert Bork gave us a good example during his Senate confirmation hearings.  Discussing the Legal Tender Cases -- 1871 Supreme Court decisions upholding the constitutionality of paper money instead of gold or silver -- Bork suggested that, yes, the Founding Fathers would have never considered paper money instead of “hard” currency constitutional.  But any judge who thought that was doable needed a white jacket with wraparound sleeves rather than a black robe.  That horse left the barn 153 years ago.  The Senate mare followed 111 years ago.

Conservatives need to focus on real issues connected to federalism.  Federalism today is most endangered by efforts to undermine the Electoral College.  There have been decades-long unsuccessful efforts to eliminate the Electoral College by constitutional amendment.  Those efforts have failed because too many “flyover” states, which would become political no man’s land under a direct election scheme, would never ratify such an amendment.

Now, law never stops liberals from reaching for power.  Instead, they now propose the “National Popular Vote Initiative” in which state legislatures, invoking their authority to certify electors, agree they will not certify the electors of the candidate who won in their state but of the candidate who gets the most votes nationwide, even if that candidate lost their state.  These “defenders of democracy” currently include the bluest of the blue states, but also swing/potential swing states like Colorado, Minnesota, and Maine.  Legislation to join the NPVI is pending in swing and potential swing states like Michigan and Nevada and was only defeated this year in Wisconsin. 

Protecting the Electoral College is where conservative efforts need to be centered, not dissipated on will-o’-the-wisp arguments over the 17th Amendment.  History moves forward, not backwards.  Already, in the wake of growing pressure to eliminate the Electoral College, the very legitimacy of the U.S. Senate is sometimes called into question.  People raised on the unconstitutional judicial activism of “one person, one vote” jurisprudence challenge the legitimacy of a body where Wyoming stands equal to California, despite the latter’s greater by several magnitudes population.

Let’s also ask the anti-17th Amendment people how they intend to build the overwhelming political consensus (because constitutional amendments should enjoy an overwhelming political consensus) in favor of taking away people’s voting for their senators?  No doubt, they’ll tell us “we’re a republic, not a democracy” and invoke the Founders’ vision. 

That -- and $2.60 -- will get them a ride on the subway.

Like it or not (and I like it), directly elected U.S. senators are here to stay.  Learn to work the art of politics.  Except in six states (Alaska, Delaware, North Dakota, South Dakota, Vermont, and Wyoming) the constituencies electing senators and representatives is different.  Learn how to use that statewide constituency to your political advantage.  (It might even help you learn how to elect more governors).

Finally, why raise this issue?  Because dumber things have happened for which conservatives are paying.  Thanks to a college student in search of a term paper topic back in the 1980s, a movement was kindled to ratify one of the dormant amendments proposed with the Bill of Rights, restricting Congressional pay raises.  That movement resulted in addition of the 27th Amendment in 1992.  Honestly, it was one of conservatism’s stupidest achievements.  Given the power of incumbency, its practical effect is nil.  But it did manage to undermine the consensus that held there should be some contemporaneous political consensus between when an amendment is proposed and ratified, a loss we are living with when the Left argues “why not ratify the Equal Rights Amendment after 52 years when you ratified the 27th after 200?” 

A similar situation would exist even if all the stars came together and, by a miracle, the 17th Amendment disappeared.  After 111 years and the homogenization of America’s political parties, do fever swamp conservatives really believe there are simmering Jeffersonians and unrepentant Federalists in state legislatures just ready to pick state’s rights U.S. senators?  Maybe in Kansas -- but they’ve got those kinds of senators, anyway.  But in New Jersey?  New York?  California?  Dream on!  With ideologically monochrome parties, state legislatures feed politicians to the House and Senate.  To imagine they will give us Daniel Webster or Henry Clay takes either a really big imagination or a state that legalized drugs.

Image: U.S. Senate