Why It’s Crucial to Repeal the 17th Amendment
When I talk to folks about the Constitution, I usually comment that "the Constitution holds all the answers to the problems that are plaguing us as a country," and as a republic. This article will explain why the original Constitution, which was written in Philadelphia in 1787 and ratified by the States in 1788, and which essentially remained in effect without change until the turn of the 21st century, with its provision on how US senators were to be selected, is one of those solutions.
The original Constitution provides a unique process for selecting US senators; that process was provided in Article I, Section 3, which read: "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." In short, our Founding Fathers incorporated the plan proposed by Roger Sherman, a delegate from Connecticut who advocated for the small states, articulated a national legislature with two parts. He envisioned a bicameral legislative branch, which gave equal representation to each state in the Senate, and representation based on population in the House of Representatives. The US House is the "people's body" and the US Senate would be the "States' body." The House would represent the constituency and legislate on their behalf while the senators would specifically show allegiance first and foremost to their States.
In fact, no issue was more important to our Founders than the balance of power between the States and the new federal government. They knew first-hand what it was like for a government thousands of miles away to issue a decree that forced private citizens to comply and forfeit treasure in the form of unjust taxes. From his "throne" in the White House, a US president can declare anything he deems important as a "national emergency" thereby allowing federal agencies to prohibit what individuals can and cannot do, require or compel them to do what they ordinarily would never agree to do, and suspend their civil and individual liberties. From that same throne, he can issue an executive order and regulate the behavior of fishermen on both coasts of the United States, and in doing so, can steal their livelihoods by denying them the right to fish. From his "throne" in the president's cabinet, the Secretary of the Department of Interior can declare any animal, bug, bacteria, virus, or species of plant to be an endangered species, thereby assuming authority to regulate the behavior of private citizens on whose land one of those endangered species may happen to inhabit or possibly inhabit, as well as to regulate the land itself.
In other words, our Founding Fathers put a critical element of federalism directly in our bicameral Congress. If the House attempted to pass a law that was deemed unconstitutional, for example (and quite likely) or if the President abused his Treaty-making or judicial appointment powers, the States, through their senators, could immediately block such laws and presidential abuse. To use the language of Thomas Jefferson, the Senate, acting on behalf of the States, could immediately "nullify" (to render "null and void") such unconstitutional laws and prevent them from being enforced on sovereign States and on a free people. This government feature was potentially the last and one of the strongest of checks and balances in our constitutional system of checks and balances. I will address this issue in more detail below. Ultimately, I hope to emphasize that we NEED TO REPEAL THE 17th AMENDMENT. Our government, now more than ever, needs to revert to the original method of selecting US senators.
Did our Founding Fathers intend for the US Senate to act as an integral element of federalism in our government structure? I believe so.
Having just fought a revolutionary war against Great Britain and defeated the powerful nation to be recognized as independent sovereign states (and eventually as an independent sovereign nation), our Founding Fathers were distrustful of tyrannies, fearful of governments becoming arbitrary and capricious, obsessed with designing and creating a limited "common government" to regulate common functions of all States and just as importantly, to secure and safeguard the rights and liberties of the American people.
The Constitution Center explains on its website that after returning from France in 1789, Thomas Jefferson supposedly asked George Washington, during breakfast one morning, why Washington had agreed to the creation of the US Senate in the Constitution. Noting the saucer on which Jefferson's hot morning beverage rested, Washington explained, "we pour our legislation into the senatorial saucer to cool it." Is this story really true? Apparently ,no one can confirm it. Nonetheless, it nicely captures what the Framers hoped to achieve in establishing the US Senate. First, and most importantly, as reflected in Article I, Section 3, the Framers designed the Senate, like they had other fixtures within the Constitution, such as the Electoral College and the judiciary, to be independent of the voting majority. The Senate was originally designed, created, and empowered to function in ways that frustrated direct democracy and designed to keep the House of Representatives in check. Second, it was designed to temper government passions and slow down the legislative process, giving government more time and wisdom (hopefully) to act in the most judicious, responsible, and rational manner - for the good of the country.
In fact, the Constitution originally treated Senators quite differently. In the original design, Senators were chosen by their respective State legislatures, and as a result, they were subject to instruction and recall if they did not do what their legislatures instructed them to do. (Note that while the Constitution provided the minimum age for membership in the House of Representatives to be 25 and for every seat in the House to be up for re-election every two years, it provided that senatorial candidates have a minimum age of 30 in order to serve in the Senate and for each Senator's term to last for six years. The relatively higher minimal age requirements for Senators and longer lengths of Senate terms were designed to increase the likelihood that Senators would be better educated and more disposed than their House counterparts to take the long view on important issues. The distinction of powers for the House and the Senate - namely, the Senate's responsibility to ratify treaties and judicial appointments by the president and its sole power to remove a president after being "impeached" (convicted) by the House - would seem to explain why there are different criteria expected of each chamber representative. Such specific responsibilities, as James Madison explained it in Federalist No. 58, serve as "a shield to some particular interests, and another obstacle generally to hasty and partial measures."
All that changed in 1912 when Congress passed the proposed Seventeenth Amendment on May 13 and then when the States ratified it on April 8, 1913. The Seventeenth Amendment reads: "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. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures." [The amendment also altered the "filling of vacancies" clause]. In short, the Seventeenth Amendment calls for a dramatic change in how US senators are selected. From 1913 to today, senators are chosen and elected by the people. They have become political creatures rather than representatives of the States and their sovereign interests and concerns.
Indeed, the Seventeenth Amendment totally transformed the Senate and its essential and critical purpose. And this has been very unfortunate. By making Senators subject to popular election in their respective States, it effectively democratized the Senate and, in doing so, abandoned one of the critical differences between the House and the Senate, namely, the primary allegiance of senators to their individual States. The change introduced by the Seventeenth Amendment has made it easier for Senators to pay less attention to local or state leaders' concerns, to ignore fundamental state issues and concerns, and to ignore the critical importance of federalism and instead more prone to follow the popular will. It essentially created a second body of democratically-elected representatives, each one beholden to the people. It has dealt a dangerous blow to State sovereignty. To be honest, I don't know what possessed the States to ratify the amendment in 1913.
The growing power in the federal government for the past one hundred years has been possible because of the loss of this critical element of federalism. Because both the House members and senators are elected directly by the people, there is no check or balance on the power of the federal government. Were the Senate body still the instrument of the collective power of the state governments, there could be some pushback when the federal agencies intrude into jurisdictions that should rightfully belong to the States.
I do know, however, that many constitutional scholars believe that it was after the ratification of this transformative Amendment that the Senate joined the House in expanding the size and scope of the federal government to unprecedented degrees, all at the expense of State sovereignty. With this Amendment firmly in place, these scholars argue further that there is no turning back from this foundational transformation.
Before going any further, I'd like to spend just a few paragraphs on the US Constitution.
What is a Constitution -
What is a constitution anyway? A constitution is the act of a People governing themselves. It is a social compact among members of a society agreeing and acknowledging a particular form of government. The agreement creates and establishes a government and delegates powers to it. The powers delegated are transferred from the original source of sovereign power - the individual .... We the People.
The Individual, inherently vested by God and by Nature to govern himself, can technically use whatever type of force he deems necessary to protect himself, his family, or his property, including murder. When individuals form together in a society, an agreement (ie, compact/contract) is necessary to establish a uniform set of laws to govern conduct and behavior for the benefit of everyone and to establish a government to execute and enforce those laws. That is the purpose of a constitution. For example, we wouldn't want Mr. Smith to shoot Mr. Jones for simply picking an apple off his apple tree.
Our US Constitution is exceptional, not only in its words and provisions, but perhaps in the fact that it embodies a unique idea. Nothing like it had ever written and established before. The power of the idea was in the recognition that individual rights are granted directly by the Creator and not by the state (government). And following that premise, it is the people, and only them, that are able to delegate authority to their government. The concept is so simple and yet so very fundamental, far-reaching, and yes, revolutionary.
America's founders embraced a previously unheard-of political philosophy which held that people are endowed by their Creator with certain unalienable rights. This was the statement of guiding principle for the new nation, and, as such, had to be translated into a concrete charter for government. The Constitution of The United States of America became that charter. Other forms of government, as we all know, past and present, rely on the state as the grantor of human rights. If government can "allow" its people to exercise certain rights and privileges, they can also take them away. But our American Founding Fathers understood that such a system could never recognize and secure individual liberty, which was to be the founding ideal of America, and so they adopted John Locke's belief that sovereignty vests first and foremost with the individual. Our Founders also believed that a government made up of imperfect people exercising power over other people should possess limited powers. Through the Constitution they created for us and our country, they wished to secure the blessings of liberty for Americans and for their posterity by limiting the powers of government. Through it, they delegated to government only those rights they wanted it to have, holding to themselves all powers not delegated by the Constitution. (See the limitations in the words and provisions of the Constitution, and especially the Ninth and Tenth Amendments). They even included a means for controlling those powers they had granted to government, and that is our governmental system of Checks and Balances. Many problems we face today result from a departure from this basic concept.
Thomas Jefferson and many other members of our founding generation were deeply influenced by the 18th-century European intellectual movement known as the Enlightenment, and most noticeably by English philosopher John Locke. Enlightenment philosophy stressed that liberty and equality were natural human rights. The novelty of the Declaration of Independence - that is, its most famous paragraph, the second one ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government...") comes almost directly from the writings of John Locke. Locke discussed these themes in his Second Treatise of Government in 1689 at the time of England's Glorious Revolution, which overthrew the rule of the arbitrary and tyrannical King James II.
The American colonies, then States, and finally the United States, were founded on a revolutionary and magnificent idea. Indeed, the world has changed and become a more civil place since the publication of the Declaration of Independence, the birth of the United States, and the creation of the US Constitution.
The US Constitution is brilliant in that the government so created not only governs the explicit affairs of the States (interstate commerce, money, border security, money, mail, etc) and governs We the People, but it also itself. It is the oldest, and most well-thought out, written constitution in the world.
Checks & Balances -
The US Constitution created our federal government. The federal (a name used to incorporate the "federalist" nature of our government system) or "common" government was designed with 3 independent branches, each with its particular responsibilities. To keep each branch confined to its particular responsibilities, our Founding Fathers devised an ingenious system of checks and balances. Actually, the concept was addressed earlier by the French philosopher, Baron de Montesquieu. In his famous work "The Spirit of the Laws," Montesquieu argued that the best way to prevent the concentration of power arbitrarily in a single branch was through a separation of powers, in which different bodies of government exercised legislative, executive, and judicial power, with all these bodies subject to the rule of law. In addition, each branch enjoys a power that "checks" a power of another branch.
The system of checks and balances is an important part of the Constitution. With checks and balances, each of the three branches of government are given specific abilities to limit the powers of the others. And this way, theoretically, no one branch could become too powerful. The caveat, however, is that should branches collude and work together, then checks and balances will not work to prevent a concentration of government power.