Why the 17th Amendment is Bad and Should be Repealed

2/23/2013 23 Comments

U.S. Constitution

Image by Mr T. in DC on Flickr

Before 1914, senators were not directly elected by the people. They were appointed by the state legislatures. The 17th amendment changed that, and not for the better. But why is it bad to have them be elected by the people? Isn’t that more democratic, and therefore, better? Not really.

The original intent of the founders was to have a Federalist system which consisted of individual states and a small central government with very limited powers. The idea was that the states would send the senators to Washington to represent them. If a senator started voting against the best interests of the state which he represented, he could be immediately recalled.

What happens today when a senator violates his oath of office and votes for unconstitutional bills? Nothing. Senators are elected for six years and even when those six years are up, it is almost impossible to take them out. In 2010 84% of incumbent senators were re-elected. In some years that number has been as high as 96%.

An example of senators being forced to resign by their state legislatures is noted by Thomas Dilorenzo:

State legislatures were instrumental in Andrew Jackson’s famous battle with the Bank of the United States (BUS), which ended with the Bank being de-funded and replaced by the Independent Treasury System and the era of “free banking” (1842—1862).

Senator Pelog Sprague of Maine was forced to resign in 1835 after ignoring his legislature’s instructions to vote against the Bank.

Without the 17th amendment the senators would be kept in check. They would be watched closely by the state legislatures. So what happens when the state legislatures fail to make sure no unconstitutional bills are voted for by the senators? That’s where the people come in. It is much easier for the people of a state to contact and put pressure on the state representatives which reside in their district than it is for them to try to get a U.S. Senator to listen to them all the way from Washington.

The idea is that the people would keep a close eye on their state legislatures, and the state legislatures would then keep a close eye on the senators that represent them.

It is clear that the founders’ intent was to always have the states be more powerful than the federal government, which is why the states ratified the Constitution, giving the federal government the authority only to do what they felt was necessary. The 17th amendment does a lot to reverse this. In the Kentucky Resolutions of 1798, then Vice President, Thomas Jefferson, wrote the following:

…[T]he several States composing, the United States of America, are not united on the principle of unlimited submission to their general government…[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers…

The federal government cannot be trusted to keep itself in check. Having the three separate branches of government is not enough because they all belong to the federal government. Once the senators go to Washington, they are part of the system. It actually becomes beneficial for them to have the federal government become more powerful, since that makes them more powerful.

So why did they pass the 17th amendment and change the way senators are elected? It must not have been working the way it was before, right? Well, the problem that they tried to solve with the 17th amendment was that of frequent deadlocks that occurred in the state legislatures when trying to select a senator. When this occurred, that particular state would go without representation in the Senate. But why did these deadlocks occur? Thomas Dilorenzo notes:

…in 1866 a new federal law was passed that mandated for the first time how the states were to appoint senators. First, a voice vote would be taken in each house. If there was no overwhelming choice, then a concurrent vote would be taken. This process revealed information about voting preferences to minority cliques within the legislatures, who then knew who they had to support or oppose. The end result was frequent gridlocks (71 from 1885 to 1912 alone). The deadlocks were inevitably ended by bribery.

So, rather than try to change the way the legislatures selected senators, they threw the federalist system out with the bath water, and took away the power from the states completely. This is a big reason why the federal government has been able to get away with so much. The states are no longer in control. The federal government continues to grow and ignore the Constitution with no one to answer to. If we are to reverse this, one of the first things that must be done is the repeal of the 17th amendment.

Unfortunately, congressmen are often more worried about perception than they are about fixing our problems. Even if they agreed that the 17th should be repealed, most would not have the courage to get it done for fear of being called “anti-democracy.”


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State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional

Donald J. Kochan
Chapman University, The Dale E. Fowler School of Law

Albany Law Review, Vol. 66, No. 4, 2003
Chapman University Law Research Paper No. 08-12

In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying positive political theory to examine the potential effects of the Seventeenth Amendment while remaining generally agnostic concerning whether the hypothesized decrease in state power represents a sound governing structure.

This Article's main focus is on examining the institutional weapons available to state legislatures in the pre-Seventeenth Amendment world resulting from state legislatures' influence in Congress. It posits that these weapons could be used to influence outcomes at the Supreme Court and other federal courts if those courts threatened the institutional interests of state legislatures, mainly the durability of state legislative acts. This Article hypothesizes that the Seventeenth Amendment left federal courts free to hold state laws unconstitutional without significant fear that the institutional interests of the federal court system and the interests of individual judges would face retaliation for such holdings.

This Article ends with empirical material that supports the theory that the federal courts have treated the constitutionality of state laws differently before and after the Seventeenth Amendment. Although evidence of causation must be explored further, there is substantial empirical evidence that suggests that the Seventeenth Amendment may have altered the relationship between state legislatures and federal courts.

[Among other citations, this Article is one of the primary law review articles listed under U.S. Constitution, XVII Amendment in the United States Code Annotated (USCA).]

Number of Pages in PDF File: 43

Keywords: Constitutional Law, Law and Economics, Statistics, Public Choice, Independent Judiciary, State Laws, Supreme Court, Seventeenth Amendment, Direct Election, Populism, Federalism, Landes, Posner, McNollgast

JEL Classification: B00, B40, C10, C50, C80, E00, H10, H11, H19, K00



June 13, 2013

Q&A with Richard Baker

Richard Baker talked about the historical narrative he co-wrote with Neil MacNeil, The American Senate: An Insider’s History. The book details the emergence of the U.S. Senate as what Mr. Baker termed “the most powerful upper house of any legislative body in the world.” He talked about the impact of the 17h Amendment, by which senators were elected by popular vote rather than state legislature. He shared stories of leadership struggles and floor debates, and described the styles and strengths of former Senate leaders such as Senator Mike Mansfield (D-MT), Robert Byrd (D-WV), and Joseph Robinson (D-AR). He talked about the personalities of Senators Everett Dirksen, and John Pastore (D-RI) who was called the “bantam rooster” of the Senate for his aggressive personality and diminutive size. He discussed oratory on the Senate floor and whether it plays any real role in changing the minds and votes of senators. He also talked about the current state of the Senate. close

Watch the video at C-SPAN  https://www.c-span.org/video/?313318-1/qa-richard-baker

IMHO, accordingly to what I have  read, it  should never have been implemented.

The 16th Amendment was not properly implemented in that the required two-thirds of states did not accurately copy and pass it as required by the US Constitution.  It was pushed through by Secretary of State Philander Knox.  And here we are today paying taxes and abused by the IRS.


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