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Federalism, the Founding, and the Folly of the 17th Amendment

In Memory of Holden T. Tanner - beloved father, brother, patriot, and dear friend.

Prologue: A Problem of Ignorance In November of 2018, Representative-elect Alexandria Ocasio-Cortez somewhat (in)famously remarked that, after recapturing a majority in that month’s Congressional midterm elections, her political party had to “work our butts off to make sure that we take back all three chambers of Congress — rather, all three chambers of government: the presidency, the Senate and the House.” It is not my intention to continue to pile-on to the well-documented criticism of Ms. Ocasio-Cortez, now nearly four years after one ill-advised and offhand comment made by a newly-elected Congresswoman from a state in which I do not reside. As Alexander Pope famously put it, to err is human, to forgive, divine.

Representative Alexandria Ocasio-Cortez of New York’s 14th congressional district

Rather, I here wish to highlight a deeper issue that her well-worn quote both illustrates and exposes: an increasing ignorance in America regarding the origins, design, and functions of the nation’s federal government and its three main branches. The fact that even some of the country’s highest elected representatives and political officials are so often mistaken about the constitutional structure of the federal government of the United States only underscores this disturbing trend. Much of modern American political discourse disregards the key principles and motivations underlying our nation’s constitutional order. We would do well to remember them, for in their neglect our national political dialogue suffers greatly.

One such often-overlooked aspect of the American constitutional structure is a little-discussed provision ratified at the height of the Progressive Era, just over a hundred years ago: the Seventeenth Amendment. Few portions of the Constitution have played as large a role or made as much of a negative impact in altering the original design of the nation’s charter and its careful balancing of power between the state and federal governments as this one Amendment. America’s Constitutional Order Before delving into the details of the Seventeenth Amendment and the issues it purported to address, a few points of reference regarding the original plan, structure, and motivations behind the original design of the Constitution as envisioned by the Framers at the Philadelphia Convention of 1787 are in order:

Their other failings aside, most American high school civics courses still teach the basic truth that the nation’s federal Congress consists of a bicameral legislature, with the House of Representatives serving as the “House of the People” and the Senate being the “House of the States.” At least on paper (or, rather, on parchment), this is still the case. However, the reality of the current situation on Capitol Hill is far from this neat and memorable Schoolhouse Rock pattern, and the Seventeenth Amendment has proven to be one of the primary culprits in causing this divergence.

The United States Constitution creates three co-equal and co-ordinate departments of government: the legislative, executive, and judicial branches. The Constitution also frames a structure of checks and balances between the branches and encourages principles of adversarial competition. It also incentivizes experimentation between the governments of each state (known as “horizontal federalism”), and between the many state governments and the one federal government (a hierarchical relationship referred to as “vertical federalism.”)

Previous articles in these pages have illustrated how these structural protections still play a far more critical role in preserving our unique system of ordered liberty than most of the American people who currently enjoy that liberty presently realize or appreciate. Indeed, one of our Constitution’s real and enduring strengths is that it can take a great deal of structural damage and still carry out its basic functions without collapsing. (This is especially true in a world where the average lifespan of a written constitution internationally since 1789 is approximately seventeen years. The fact that the U.S. Constitution is quickly approaching its 250th birthday is a testament the wisdom and flexibility of its design.)

Of primary importance in the original layout of the national plan of government is this principle: that the Constitution creates a plan for the government for the United States of America which operates as both a federal and a representative republic, and not as a direct popular democracy.

The Framers of the Constitution were well-acquainted with the Western Classical tradition and its lengthy history of experimentation with popular democracy in the Ancient Greek city-state polities, as well as with Rome’s experiment in republicanism before it devolved into an imperial tyranny. From this long train of history and wisdom accumulated over millennia of human experience, the Framers fundamentally understood that direct democracy works best at the smallest and most local level possible, because local problems call for local ideas and solutions.

Signing of the U.S. Constitution (1856), by Junius Brutus Stearns

The Original Design, Purpose, and Role of the Senate

This preference for control and management over local affairs by the individual state governments was one of the primary motivating factors behind the Constitution’s unique system of horizontal and vertical federalism, as well as for the original method of selection of Senators. Under the Framers’ original structural plan of the Constitution (prior to the ratification of the Seventeenth Amendment in 1913), state legislatures selected Senators to represent their distinct interests in the federal Congress.[1]

In giving the state legislatures the power to choose the Senators who would represent them, the Framers aimed to ensure that the state governments did not diminish their own power as sovereign political units in their own right upon entering the federal Union. This is because, at the time of the Constitutional Convention, the state governments were already well-aware that they were in the best position to most-effectively govern and advocate for their citizenry. Indeed, they had already been doing so with a great degree of independence from both the British Crown and from one another for nearly two centuries by 1787. The state governments at the time of the Framing were already validly-empowered political entities in their own right, representing a diverse array of interests, who then came together and cooperated to draft a Constitution.

This historical context is critical in understanding and interpreting the primary role that the Framers intended the state governments would continue to play in the structure of the new federal government they were erecting. It was, after all, the original thirteen states that both pre-existed and created the one federal Union – not the other way around.

In light of this fact, the Framers undertook a careful balancing project, creating a legislative upper house which would serve as a forum for the interests of pre-existing and largely separate and independent states within a broader central federal government superstructure. Justice Kennedy famously described this compromise as “splitting the atom of sovereignty[2] between the states and the federal government. His analogy to nuclear power is apt, as it was this key principle of federalism which has driven the interplay and innovation between the state and federal governments over the history of the nation, with each level of government serving as a check to rein in the ambitions of the other.

On this point, consider the argument of one of the foremost members of the Constitutional Convention in proposing the reason for selection of Senators by the state legislatures: “John Dickinson of Delaware suggested that the Senate be selected by state legislatures. “The combination of the state governments with the national government was as politic as it was unavoidable,” Dickinson argued. State selection, Sherman agreed, would give state governments an interest in the national government and “preserve harmony” by calming state fears about the dangers of a strong centralized government. The state legislatures, other delegates argued, would provide the necessary "filtration" to produce better senators—the elect of the elected. The advantage of this plan, they believed, was that all laws would be passed by a "dual constituency" composed of a body elected directly by the people (or at least the white males entitled to vote) and one chosen by the elected legislators of individual states.”[3]

This is where the genius of the Framers’ bicameral design of the federal Congress really shines through. The Senate was intended and designed to protect the distinct interests of the state legislatures while the House of Representatives was to, as the name suggests, represent the will of the people of the several states.

By way of analogy, consider the example of the United Nations. In that body, independent and sovereign states send delegates to represent their unique interests and advocate for their positions in concert with other international delegations. (Though it is hardly even controversial to note here that the American federation has historically proved a much more effective domestic and international political actor than the U.N.) In the same way (and within the context of a single federal republic), the Framers of the Constitution intended Senators to serve as ambassadors of the state legislatures which selected and sent them to the Senate, which they envisioned as a national council of separate, individual, and largely autonomous sovereign state governments.

By putting the power to choose Senators in the hands of the state legislatures, the Framers were maintaining a delicate balancing act, preserving the key distinction and role of the state governments in the overall federal system of the new national government. They wanted to allow the state governments to represent their distinct interests against those of the People writ large. This competition in the federal Congress between the interests of the states and the interests of the people checking and balancing each other protected the ability of state governments to exercise primary and more direct political authority over truly local everyday matters encountered by their citizenry.

The original design of the Senate also illustrates the Framers’ clear intent for the states to remain the primary guarantors and protectors of their citizens' best interests and rights and liberties. This is still the case today, and one need simply compare the number of federal cases filed annually with the number of cases filed in state court systems to see how this plays out. In 2020, combined civil and criminal case filings in the federal U.S. District Courts totaled approximately 400,000. Although at first blush this figure appears daunting, consider that it encompasses less than one percent of the total amount of litigation which occurs nationwide. In that same year of 2020, state level trial courts processed more than 50 million new incoming cases in total.

It is the state governments and state court systems that deal overwhelmingly with the most pressing issues which still affect everyday life for most Americans, including crime; environmental regulations; automobile and traffic issues; professional licensing; and wills, trusts, and estates, just to name a few. In sum, state constitutions, state legislatures, and state law were all originally intended to be, and still in many ways are, the primary guarantors of the rights of the people in the several states.

Over two centuries later however, the role and influence of the federal government in the lives of everyday Americans has swelled enormously since 1789. We turn now to consider one of the hidden but primary culprits behind this trend. The Seventeenth Amendment: Its Progressive Era Origins and Its Negative Effects Since Ratification

The Seventeenth Amendment was a key plank in the broad package of Progressive Era legal reforms enacted in early twentieth century America. This period was characterized by growing calls to root out both real and imagined industrial and political corruption wherever it might be found. This goal was to be achieved primarily through popular control and direct democratic oversight of many governmental functions.

In keeping with this populist trend, the text of the Seventeenth Amendment swapped out the word “legislatures” for “people,”[4] thereby instituting the system of direct popular election of Senators which is still in effect today. The substitution of this one word radically altered the design and function of the entire American federal legislative apparatus in the century since its ratification in 1913. Popular Representation & Populist Influences

The Seventeenth Amendment was intended to make the Senate more responsive to the will of the people. This view was succinctly captured by the quintessential Progressive Era reformer and perennial presidential candidate William Jennings Bryan, who said that direct popular election of senators was needed to "[a]waken, in the senators...a more acute sense of responsibility to the people", since it had become "a sort of aristocratic body – too far removed from the people, beyond their reach, and with no special interest in their welfare.”

William Jennings Bryan (1860-1925)

This Progressive view encapsulated by Bryan rather impressively both completely misunderstands the purpose and design of the Senate and simultaneously denigrates the critical role of the House of Representatives, which (unlike the Senate) was actually intended to be the organ of popular representation in the federal legislature. This more expansive view of the role of “the people” and their participation in the federal government also came at the direct detriment of their ability to govern themselves at the state level. In the century-plus since its ratification, popular election of Senators has rendered the Senate non-responsive to both the people writ large and to their state governments which Senators were originally intended to represent.

It is not the case, as Bryan suggested, that the Senate had no special interest in the people’s welfare. Rather, the Senate’s primary interest was to be for the people’s welfare as expressed through the will of their popularly-elected state governments. Essentially, Bryan and the Progressive Era reformers were suggesting that the one central federal government knew what was best for the people of each state better than the directly-elected and popularly-accountable legislatures of each state did.

The Progressive reformers supporting the Seventeenth Amendment also failed to recognize that the Senate’s inherently indirect representative nature was a positive design feature, not a defect. The Senate was deliberately and beneficially intended to check the popular passions of the more democratic and directly-elected House of Representatives. Indeed, that was the driving motivation of creating the Senate as an entirely separate and independent legislative body in a bicameral federal Congress.

The Framers easily could have established a one-house legislative entity, much like the National Assembly created by their French Revolutionary contemporaries in 1789, or the British Parliament, where sovereignty had been, effectively, vested solely in the lower House of Commons after the Glorious Revolution of 1689. It should also be remembered here that the Framers’ original design of the Senate was actually a democratic improvement upon the legislative upper house with which they were most familiar and were improving upon in their new plan of government: the historical example of the House of Lords in the British Parliament. The Lords in that body historically obtained their seats by inheritance and held them for life, accountable only to the arbitrary pleasure of the monarch.[5] In light of this, the Framers’ decision to give popularly-elected state legislatures the power to choose their Senators was actually a move in a more democratic and popularly-accountable direction, albeit an indirect one. The populist Progressive view behind the Seventeenth Amendment also neglected the fact that the Framers of the American Constitution intended the Senate to serve as a more august and experienced body, largely removed from and above the day-to-day fray of the popular democratic process. This greater caution, deliberation, and stability of the Senate was intended to temper the whims of popular sentiment arising from the House in working together both with and against it to craft federal legislation.[6] (As further etymological evidence of this point, consider that the very word “Senate” derives from the Latin senatus and senex, meaning “old [man].” The Framers were steeped in the Neoclassical undercurrent of their Enlightenment era and were, accordingly, quite familiar with the Latin origins of the name they chose and of the composition of the Roman Senate. Their implications were deliberate.) The legislative interplay and back-and-forth negotiation of proposed bills between the Senate and the House was intended to be among the checks and balances between the states as political entities and the populace as a whole. Under the Constitution’s original design, the House had a special interest in the people’s welfare directly. The Senate also had an interest in the people’s welfare, but in a manner that was more tempered, indirect, and filtered through their state legislatures. Indirect election of Senators put a critical layer of insulation between the Senate and the dangers of excessive democratic fervor and the fickle and volatile nature of popular opinion. Finally, to the extent that the Senate now does represent the people directly under the Seventeenth Amendment, one cannot help but note that it does an exceedingly poor job of it due to its lack of proportional representation. In the most extreme instance, a citizen of the least populous state, Wyoming, has nearly sixty-eight times greater representation in the Senate than a citizen of the most populous state, California. This orders-of-magnitude disparity highlights the fact that the Senate, with its fixed and equal representation of two Senators per state, was never intended to function as a purely representative body in the way that it now does under the Seventeenth Amendment. That function of pure proportional representation was intended to be carried out solely by the House of Representatives, which, unlike the Senate, was given flexibility under the Constitution to grow in size as the country grew in population.[7] State Legislative Deadlocks In addition to the misguided populist criticism of the Senate as anti-democratic, the Progressive Era reformers also claimed that the Seventeenth Amendment was necessary to root out deadlocks and corruption in the state legislatures, but, in reality, these fears did not turn out to be as large of an issue as the populist Progressive press made them out to be. Deadlocks occurred when a state legislature could not agree on a candidate for Senator, and if they lasted long enough, these deadlocks occasionally led to vacancies which deprived a state of its equal representation in the Senate. Progressive reformers claimed that direct election of Senators was necessary to remedy this situation, however they here again neglected a key federalist consideration. Deadlocks in a state legislature actually served to encourage the populace of a state to vote out and change the composition of its legislature so as to regain their state’s representation in the federal Senate. If anything, the people had more control over the selection of their Senators when they were chosen by their state legislatures, because they could vote for their state legislators (who could in turn recall their Senators at will at any time) far more frequently than under the current regime imposed by the Seventeenth Amendment, where the people can only vote directly for each Senatorial office once every six years. Corruption, Bribery, and Cronyism Another common fear among the populist Progressive reformers was that the state legislatures were corrupt and in the pockets of special interests. It isn’t clear however why they believed that a single national legislature was less inclined to fall into those same temptations to corruption, abuse, and overreach. If anything, the fact that state legislatures can be corrupted (as can any legislative body at any level, however it is elected) is more of an argument for horizontal federalism, as other state legislatures can compete and check one another horizontally in this regard by experimenting with and instituting their own anti-corruption measures and legislation. Ironically, the Progressive criticism that the original design of the Senate was liable to corruption has proven even more true of the system of direct election that replaced it under the Seventeenth Amendment. It is, as it turns out, much harder and more expensive to attempt to bribe and corrupt a majority of an entire state legislature than it is to buy-off two popularly-elected Senators. Under the original design of the Senate, one would have to attempt to bribe and corrupt majorities of twenty-six separate state legislatures to influence policy in the federal Upper House. Under the Seventeenth Amendment however, one need only spend to affect the elections and actions of fifty-one members of a single federal legislative body. The Progressive Movement intended the Seventeenth Amendment to lessen the influence of major corporate, economic, and other large financial interests on federal legislation. Although this was an admirable goal, the new system has proven to be an abject failure in obtaining it, as the exact opposite effect has in fact transpired in the century-plus since its enactment. Direct popular election of Senators has, if anything, increased the incentive of moneyed interests to spend lavishly[8] to attempt to affect the outcome of Senatorial elections and to curry favor with Senators after their election. Conclusions It is said that the road to hell is paved with good intentions, but in the case of the Seventeenth Amendment, not even its intentions were good. Rather, they were based upon faulty presuppositions and false assumptions concerning the proper role of the Senate and the supposed preferability of popular majoritarian democracy at the federal level. This all came at the expense of the carefully designed and counter-balanced representative republic that the Framers of the Constitution created. The value of structural federalism’s system of checks and balances between the many state governments on the one hand and the one national government on the other was, in the end, buried under the Progressive Era drive for greater “efficiency” direct democratic representation in government. In an ironic twist, this Progressive reform intended to produce greater efficiency has instead produced enormous inefficiency in Congressional legislative action in the century since its enactment. Furthermore, the Seventeenth Amendment effectively unhitched the federal government from the state governments. This in turn has rendered the state governments in many ways redundant and ineffective in serving their local state populations, as the state legislatures no longer have any representation in crafting federal legislative policy. This is a direct inversion of the original design of the Constitution, which envisioned the state governments as being the primary governments that would most interact with and affect the people within each individual state. In sum, the Seventeenth Amendment disenfranchised the state governments and took away their seat at the federal legislative negotiating table. It robbed the state legislatures of their ability to participate directly in the federal government by sending Senators to Washington to serve as ambassadors of state-level legislative policy goals and initiatives. It threw off the careful balancing of state versus federal interests that the compromise which created the Senate in the first place was intended to preserve. The state governments have now been locked out as separate and co-equal participants in America’s federal system for well over a century. There is no way for federal legislative policymakers to consider what the state governments want unless there is some structural way of giving them a voice in crafting truly national legislation. The Progressive Movement had a populist bent in that it believed that the ultimate safeguard of America’s common good was via direct democratic control through elections and popular referenda. In this sense, the Progressive Era reformers were admittedly in accord with the “We The People” ethos of the Preamble to the Constitution. However, in virtually every other way, the Progressive Movement was profoundly out of step with the motivating logic and spirit behind the Constitution – particularly in its substantive structural design, which created deliberate insulation against the dangerous potential excesses of direct democratic popular sentiment. Experience has since demonstrated that bringing a government closer to the people does not inherently improve it. Just because a government is more democratic does not necessarily mean it is more efficient, just, or effective. If anything, too much scope for direct popular action slows a government down and makes it too dependent on the whims and vicissitudes of popular opinion. Towards The Future: Calls For Repeal & Reform There may be some good news on the horizon in this regard, however. Legal commentators are beginning to realize that the benefits of the Senate in helping to decentralize and devolve power back to the states under the original design and conception of the Constitution would flow to both sides of the political aisle and free up state legislatures to actually legislate. Some calls for reform of the current regime of direct popular election of Senators created by the Seventeenth Amendment have come from within the Senate itself. Several potential Constitutional amendments repealing the Seventeenth Amendment have also been proposed. Recent news from the Supreme Court indicates that the critical importance of state law (and accordingly the state legislatures which enact state laws) in our nation’s constitutional order is likely about to be renewed afresh. The beauty of federalism as envisioned by the original design and structure under the Constitution is that it allows for the best of both worlds. California can be California, and Texas can be Texas, without forcing the entire rest of the country to be too much like either one. Prior to 1913, the Senate was the lynchpin in this delicate balancing act, the arena where these tensions between different state interests were carefully weighed and measured in crafting truly national legislative policy. This increasing spotlight on state law will reinvigorate the principles of federalism created by our Constitution, and it should also cause us to reexamine the Seventeenth Amendment as well. The long and the short of it is this: structure matters, and a constitution is just that: a structure. It is a skeletal framework which determines how a government operates and functions. The Framers of the American Constitution in particular created a federal system which appreciates this truth: that, because the structure and arrangement of a government is so critically important, the composition of the body that decides what policy is made is just as important a consideration as whatever substantive policy is ultimately enacted. In this regard, the Seventeenth Amendment emphatically and erroneously disenfranchised the state governments from their critical role and participation in the federal government. It threw off the artful and fine-tuned balance of interests between the state and federal governments that the original design of the Constitution so carefully protected. It has left the American people with an unchecked federal government that has continued to grow in power and influence unabated in the 109 years since its ratification in 1913. The results are in, and the experiment did not work. There is precedent for undoing an ill-conceived Constitutional Amendment. The Eighteenth Amendment, which famously foisted an unpopular Prohibition upon the entire country, was successfully repealed a mere fourteen years after its enactment with the ratification of the Twenty-First Amendment. The time has long since come to do away with the Seventeenth Amendment in similar fashion. [1] “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” U.S. Const. art. I, § 3, cl. 1. [2] U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). [3] Link. [4] “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.” U.S. Const. amend. XVII, cl. 1. [5] On this point, consider the words of James Madison writing as Publius in Federalist No. 63: “But if any thing could silence the jealousies on this subject, it ought to be the British example. The Senate there [i.e., the House of Lords] instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives [i.e., the House of Commons], instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.” [6] See Madison, Notes on the Constitutional Convention, June 7, 1787: “The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch.” [7] Intriguingly, the size of the House of Representatives has been capped at 435 members since 1912, just one year prior to its role as the true house of the people being eclipsed by the Senate. There has been little motivation to increase the size of the House since (despite population growth from approximately 92 million in 1910 to 331.5 million in 2020), primarily because smaller states which might otherwise have benefited from an increase in the size of their House delegations already wield an outsize role in the federal Congress due to direct popular election of Senators under the Seventeenth Amendment. [8] Campaign spending on Senate elections has ballooned enormously since the ratification of the Seventeenth Amendment.

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