The 17th Amendment (direct election of senators) to the U.S. Constitution should be repealed. It has done more damage to the integrity of our political system than almost anything else. It has made it easy for Congress to enact unconstitutional laws, destroyed federalism, which was an important check on federal power, and has ironically given more power to special interest groups over the people it was intended to benefit the most – the common citizen.
Now, on the surface, there were good reasons for the 17th Amendment and I am not about to question the motives of a generation of politicians that also gave us the income tax, Federal Reserve System, and a slew of federal bureaucracies. The amendment came about because the legislature appointment system was fraught with peril. There were times when consecutive state legislatures sent competing senators to Congress, forcing the Senate to determine which member was the rightful representative. It was also tainted by bribery, nepotism, and corruption. Lastly, it was felt that giving the people the ability to directly choose their senators through the ballot box was a much more democratic process than the legislature appointment process which all too often consisted of backroom deals in state capitals.
However, the politicians of that time, much like our own, did not consider the long-term effects of their actions and were not versed in constitutional doctrine. Because if they were the 17th would have been met with great resistance. For one thing, it has led to the enactment of many unconstitutional laws – laws that are within the jurisdiction of the states under the Constitution. If you read this blog on a regular basis you will recall that Congress has 18 enumerated powers under Article 1 Section 8 of the Constitution. All others, like environmental law, disabled persons’ acts, healthcare, education legislation, and so forth are the domain of state legislatures solely under the 10th Amendment. Recently, I had someone comment that at the end of Article 1 section 8 it says, “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof” implying that Congress has “other powers” like education, healthcare etc… not specified in that section. Wrong. Correctly read, the “other powers” refers to making laws necessary for carrying out duties of the other areas of the government. An example is found in Article 2 Section 2 where Congress has the power to by law make certain appointments.
The bottom line is that the appointment of senators by state legislatures was set up to prevent the federal government from usurping the powers of the states thereby violating the Constitution. According to the Father of the Constitution, James Madison, the “enumeration of [federal] powers” in the Constitution would never be sufficient to restrain the tyrannical proclivities of the central state, and were mere “parchment barriers” to tyranny. He went on to say, Structural arrangements, such as the appointment of senators by state legislatures, were necessary. What the 17th Amendment has effectively done is make senators agents of the federal government and not representatives of state interests thus eliminating a vital safeguard against federal intrusion into states rights under the Constitution.
Where this is realized the most is in the area of unfunded mandates. Senators pass all sorts of measures which cost trillions of dollars knowing it will help them get reelected and will be paid for by the Federal Reserve’s monetization of debt. The states do not enjoy the same luxury as the feds in terms of paying for costly programs imposed on them from Washington. They don’t have a printing press that will produce devalued currency at will. If senators were chosen by state legislatures they would be beholden to them and not their parties or themselves for reelection. Thus they would have to do what is in the best interest of their states alone. The recent healthcare debacle in the senate would never have been considered let alone passed the way it was passed if senators were still chosen by state legislatures. In the first place, healthcare at the federal level is unconstitutional because it is a usurpation of states’ rights. Secondly, the costs (unfunded mandates) it will place on the states would never have been agreed to by senators chosen by state officials. Thirdly, the 47 senators who did not get sweetheart deals for their states in exchange for their votes could never have supported the measure without something for their constituency. The unfairness of the process speaks for itself. The whole process would have broken down before it even got started, thus preventing the catastrophe which will result when the measure is ultimately passed.
Probably the biggest reason the 17th Amendment should be repealed is because it doesn’t serve the constituency it was meant to – the people. Instead, the amendment serves the political parties and their special interests. Would there have been huge bailouts for Wall Street under legislative appointment of senators? Would there have been a healthcare bill passed by the senate which benefits the insurance companies by mandating that all Americans purchase health insurance? You see senators pass these egregious handouts because they know that those same special interests that benefitted from their largess will be there for them with lots of cash at election time. The rest of us are left holding the tab. Under legislative appointment, senators would be restricted from doling out federal goodies unless it benefitted the people in their states and even then those goodies would have to benefit at least 25 other states for them to pass – a tall order to say the least. Imagine how small our national debt would be!
Repealing the 17th Amendment does not preclude the direct election of senators by the people. State legislatures would have the power to continue the current system. Further, we have the communication technology today to uncover the bribery, corruption, and nepotism that may result from a return to the previous system – the Roland Burris case is a good example. Lastly, put democracy aside for a moment. Aren’t the state legislators who would appoint the senators elected by the people? We the people would still wield significant power over those who served our interests in the Senate in Washington. To return our federal government to its constitutional principles, clean up our financial house, and take back control from political hacks and special interests and return it to the people, the 17th Amendment must go!