Ah, the infamous Seventeenth Amendment. At least, it’s quite infamous in the circles in which I run. I can’t tell you how many times I hear the phrase, “It was the Seventeenth Amendment that destroyed us!”.
It’s quite the controversial amendment today (not at the time of its passage)… one that deserves some special time and attention in this article. It’s also significant because it’s the only amendment ever passed that changes the makeup of Congress itself.
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.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.Amendment IIVX
Historical and Theoretical Context
The state legisture-appointed Senate was meant to do three things: bolster federalism; support bicameralism and suppress dangerous democratic tendencies.
I’ve always thought that the use of the word senate by our founders is fascinating. They held a deep reverence for the Roman Republic and took many of their cues from it, including the term senate. Think about it. How many other countries, particularly at the time of the founding, but even today, use the term senate to describe their “upper house” in government?
In Great Britain, it was the House of Lords and the House of Commons. The founders could have easily used those terms since they were so familiar with them and did name the lower house, the House. But they weren’t interested as much in emulating Great Britain as they were in emulating Rome. Just take a look at our architecture if you want further proof of the Roman Republic’s influence on America.
(Alexander Hamilton was particularly fixated on the Roman Republic. When he, Madison and Jay wrote and published the Federalist Papers, he chose to publish them under the anonymous name Publius. Publius Valeries Publicola was a great Roman general and patriot, attributed with saving the Roman Republic many times and even considered one of its founders. Hence, Hamilton named himself after the founder of the only other great Republic he'd known-Rome-because he considered himself-and the other founders-to be the Publius of the next great Republic.)
So, the word senate is a derivative of the word “senis” meaning “old man, old”. It literally means, “council of elders” or “highest council of the state in Ancient Rome”. Other meanings attributed to senate include, “old and wise”. The implication from all of this is that the Senate is supposed to be filled with older, presumably wiser, statesmen who can counterbalance the youth, inexperience, irrationality and emotionality of the lower house.
Theoretically, the lower house is filled with younger representatives directly elected, and therefore more influenced by the people. Further, the lower house should be elected more often-hence, every two years. This house, then, is much more likely to be tossed about by the emotional whims of the people (or mob). These emotional whims need to be counterbalanced by a less easily swayed upper house: The Senate. This all a part of the theoretical foundations of “ambition being made to counteract ambition” and bicameralism.
The Senate, then, would be filled with older representatives who are not elected as frequently–every six years. Further, the elections are staggered (a third go up for re-election every two years) to prevent the entire Senate from being replaced at one time. This means there will always be some age and experience in the Senate. And to further insulate the Senate from the irrational influence of the people, the Senate is not directly elected by the people but rather by the state legislatures. This gives the states a greater influence and sway in the functioning of the federal government while depressing the influence of “the mob”.
So, the passions of the people-the House-is counteracted by the passions of the states-the Senate-before any new law that will subject everyone to its power is ever passed.
Consider going to war. The “people” as well as the union of the “states” must agree on the declaration of war before sending off American citizens to fight (obviously the executive has circumvented much of this, but theoretically, this was the hope). Further consider the powers unique to the Senate: ratifying treaties (the union of states should have a say in who the country joins with); trying impeachments and advising and consenting on major executive appointments.
According to James Madison, giving state legislatures the power to choose Senators provided a “double advantage,” both “favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former.” By requiring the “concurrence first of a majority of the people, and then of a majority of the States,” James Madison thought that bicameralism would provide greater protection against “improper acts of legislation” than a unicameral legislature or two houses drawn from similar constituencies.Schleicher and Zywicki
“George Mason argued that state legislative selection gave states the power of self-defense against the federal government. Wendell Pierce argued that the contrast between a state legislatively-appointed Senate and a popularly-elected House would increase the types of interests represented in the federal government. By requiring the consent of two different constituencies to any legislation—the people’s representatives in the House and the state legislatures in the Senate—the composition of the Senate was seen as essential to the system of bicameralism, which would require ‘the concurrence of two distinct bodies in schemes of usurpation or perfidy.'”Schleicher and Zywicki
“The Framers’ logic is compelling: By giving the state legislatures in their corporate identities the ability to block federal laws that overreach, the Senate theoretically could preserve the power of the states against the national government.
The most effective way to do this would be for Senators to be elected by state legislatures, thereby aligning their self-interest with the protection of the state legislature’s powers. Moreover, because of the role played by the Senate in confirmation of federal judges and Executive branch officials, Senators elected by state legislatures might be expected to be more cognizant of the positions of these appointees on matters of federal-state relations.”Zywicki, Professor of Law at George Mason University Antonin Scalia School of Law
In short, the framers created the Senate, the way they did (there were virtually no debates or disputes over it during the Constitutional Convention), to play a vital role in the system of federalism, bicameralism and democracy. The Senate acted as a bulwark against federal power, provided a unique constituency check against the constituency represented in the House, and worked to suppress the democratic/special interest influence of the “people”.
At least, this was the theoretical expectation.
How The Theoretical Foundations Played Out
The interesting reality about theory is this: theories are expectations of future reality based on past reality, but with little present reality. Theory, in a scientific sense, is like predicting that if someone socializes more they will be happier. This not a proven scientific fact until actual hypotheses are made and experiments run to support these hypotheses and thus, the underlying theory supporting these hypotheses. No one actually knows the validity of the theory until it’s tested and “proven”. Even then, theories and hypothesis can be disproven. So, a theory really is just that…a theory about what we think might happen if we do or set up situations in a particular fashion.
The founders had never created this federal government before…ever. Some of them had been involved in the structure and Constitutions of state governments, which helped inform their decisions about the federal government–but none had created this federal government before. They had no idea if it would “work”. Many of them were well read in the history of previous governments and what had failed to work in the past–according to their understanding of a failed versus successful government, where preserving liberty is the end goal. But, fundamentally, when we say the “American experiment”, this is not a cliche. The creation of the U.S. government really was an experiment, based on theories and assumptions about human nature and government. The framers had no idea if what they put together would actually work and result in liberty not only being preserved but promoted.
I’d say they did a pretty swell job–and that’s understatement.
That being said, the election of the Senate by the state legislatures took some unexpected turns in the decades to follow. These unexpected turns are what ultimately led to the passage of the Seventeenth Amendment.
- The founders never anticipated the two party system to materialize into what it did.
- State legislature elections became less important in the face of potential Senate candidates.
I could also mention the corruption and backroom deals that mired the whole Senate appointment process, but the founders would have expected that.
The two-party system grew in strength as time passed after the founding, so that, eventually, politics was run by two parties. With this came the unpleasant binary party rancor that led to a shift in campaigning and elections. Over time, state legislature elections became less about the state and who was best equipped the make laws affecting the state, and more about which Senator would be sent to Congress–so much so that state legislature elections were basically Senate elections. Senate candidates would campaign for the state legislative candidates they knew would put them in the Senate if elected, further miring the purity of state elections. State legislature elections basically became proxy Senate elections and nothing more.
“For instance, in deciding whom to vote for in state legislative races in 1858, voters in Illinois had to consider the weighty subjects of union and slavery because they were really choosing between Stephen Douglas and Abraham Lincoln. Rather than allowing them to make that choice separately from trying to hold state senators responsible for the performance of state government, the pre-Seventeenth Amendment Constitution forced them to weigh these decisions together. As a result, state issues became barely a passing interest in elections for state legislature.”Schleicher
(This reminds me a lot of our presidential elections today–proxy elections for Supreme Court Justices.)
Because of this, and the corruption that many Americans felt was miring the Senate election process, many states implemented the “Oregon System”.
Ok, so to understand the Oregon System, you need a little context. Because the system was so mired and local elections so heavily influenced by who would be Senator, many states began holding direct primaries for the Senate, which dramatically decreased the power the state legislatures had over the Senate appointment decision. Much like our electoral college system today, the state legislatures were not bound to vote for the popularly elected Senate candidates but would feel pressure to if they hoped to be re-elected. So, the “Oregon System” required state legislative candidates to make public on their ballot whether they would abide by the results of a “formally non-binding direct election for U.S. Senator”.
By 1908, twenty-eight of the forty-five states in the Union used the Oregon System or some version of direct elections for U.S. Senators.
Ultimately, it was not Congress, per se, who pushed for the passage of the Seventeenth Amendment. Much like the Convention of States movement today, it was state legislatures, thirty-one, to be exact, who passed resolutions calling on Congress to pass an amendment to make Senate elections direct, or to join with other states in a Constitutional convention to pass an amendment in a new Constitution that would make Senate elections direct. The strong zeitgeist at the time to make elections more “democratic”, along with the issues listed above, helped move the amendment process forward at a rapid, almost unhindered pace.
While there was a small bit of pushback in the Senate, eventually, the amendment passed both houses in 1912 and received ratification from the needed States by 1913. It was a wildly popular amendment at its passage.
Post-Seventeenth Amendment America
Here’s the reality. No one can deny the massive shift in power from the state and local governments to the federal government over the past century. It’s hard to attribute this shift to one cause, however. The Sixteenth Amendment did a number on state and local government power while boosting federal power greatly. The wars and economic strains of the past century resulted in some rather major collective shifts in the populace’s expectations on government–particularly an increased tendency to turn to the federal government to solve most issues rather than turning to local communities or state and local government to solve these issues.
That said, few can ignore the Seventeenth Amendment as another significant causal variable in the increase of federal power. In addition to bolstering federal power over state power, the Seventeenth Amendment dramatically changed the functioning of bicameralism by creating a Congress that represents virtually the same constituencies now, rather than a Congress whose two houses represent different constituencies with varying preferences and wants.
We don’t have a counterfactual here. In other words, no one can say with certainty how the United States would be different had the Seventeenth Amendment never been passed. All we can do is look at what we have in our government today and attempt to attribute some of its current size and scope to various factors, including the Seventeenth Amendment.
The state legislatures no longer have sway or influence over the Senate and the Senate is no longer concerned with keeping the state governments involved–greatly reducing the states’ power. However, looking at the Oregon System and the direct elections in the majority of states before the passage of the Seventeenth Amendment, I wonder if the Seventeenth Amendment merely formalized what already was.
The core problem, to root issue, here is not so much that Senators were either informally being elected by the people (pre-seventeenth amendment) or formally being elected by the people (post-seventeenth amendment); rather, the root issue is that the people nor those in government knew the why behind the specific method of Senate elections written in the Constitution. Why did the framers choose to give state legislatures the power to appoint Senators? Knowing the answers to this “why”—listed above—could have significantly changed everything. But, few likely knew or respected the theoretical underpinnings for the method of electing the Senate and makeup of the Senate— and so, this part of the Constitution was eroded and destroyed long before the adoption of the Seventeenth Amendment. The Amendment merely formalized what had already been destroyed in the hearts and minds of the people and those in government.
The Seventeenth Amendment is a perfect example of what happens when the citizenry refuses to know and understand their government’s job description. When the Constitution is no longer respected, no longer revered for what it is, it loses its power long before anything formally strips it of its power.
What if the citizenry at the time knew and understood the critical importance of checks and balances, federalism, and Republicanism vs democracy? What if they knew that their state legislatures were of critical importance, MORE than any federal Senator ever should be? How might such knowledge have changed the elections? Perhaps elections wouldn’t have devolved into mere proxy-Senate elections because the citizens were far more in tune with and involved in how their local politicians were taking care of their cities, counties and states to be distracted by the federal government.
Knowledge really is power. And we the people REALLY do have an important job. The people’s apathy, our apathy and lack of drive to know, understand and do our job well results in some very real and sometimes dire consequences.
We can’t change the choices our forefathers made, but we can fight to make informed, passionate and reasoned decisions about our government today.
Fair warning. If we choose to be apathetic employers today, our future generations may not have the option of making such a choice–for they may no longer have the luxury of being government’s employer.
Let the Seventeenth Amendment sober you friends.
It’s time we start acting like the equipped employers we were made to be.
The Liberty Belle