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Federalism, the Founding, & the Folly of the Seventeenth 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.”

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