Why the 17th Amendment is Bad and Should be Repealed

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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  • Bolil

    Now if we could only PERSUADE people to actually read the constitution comprehensively…. +rep

  • Osan

    Well written and on the money. Very good job. Getting Pandora’s box shut… that is another kettle of fish entirely.

    • AngryDave

      Wow..you think you can jam another folksy euphemism in that comment?

  • fisharmor

    Good overview, though I think two things need to be pointed out.
    1) We’re still, for some inexplicable reason, taught in 8th grade civics class that the senate is meant to represent the states. Once you dwell on that, it makes perfect sense that senators would be chosen by state legislators: there’s no other way for them to represent the state, as opposed to the people of that state.

    2) I think this topic should always include the powers the senate alone has, to drive the point home. The huge one is that the US Supreme Court appointments are approved by the senate. Thus, in the original plan, the *states* are basically the final arbiters of what is constitutional and what is not. They not only had incentive to stop unconstitutional legislation (as you point out), they had incentive to control what that even means.

    • That’s an excellent point, the fact that the states basically had the power to approve US Supreme Court Justices. It really illustrates the kind of power the founding fathers intended for the states to have.

  • Allamer1

    The deadlock in state legislatures could have been solved by restricting the vote to the state House of Representatives. The independence of the states has been severely weakened by the 17th Amendment. It needs to be repealed.

    • And it is so frustrating to explain this to people that have been brainwashed for so long. To them, you would be removing “democracy” by getting rid of the 17th amendment. ugghh!

      • Rasforic

        Funny part as well we aren’t even a democracy we are a Republic

        • Michael Alexander

          And, it’s not just the independence of the states that’s being threatened, it’s the entire notion of federalism that’s nearly vanished.

          There is a remedy. Be informed. Get involved. Sign this
          petition ==> http://www.cosaction.com/?recruiter_id=2348

          #AZLeg #COSProject

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  • Anonymous

    So why was the seventeenth amendment created in the first place?

    • They created it because of the deadlocks that were occurring when they were trying to appoint senators. The interesting thing is that the deadlocks were happening as a result of a federal law that had been passed. They could have just repealed that law instead of changing the way senators were elected. I found more information on that law here.

      • Anonymous

        Do you know what exact law that was

        • jim

          The law was a law created by the central government in 1866. http://www.senate.gov/artandhistory/history/common/contested_elections/pdf/Stockton_5_1866law.pdf

          The true reason for the 17th Amendment was to make things easier for the Progressives to push through anything thing they wanted at the central government level. Their appeal to “the voice of the people” – democracy – gave legitimacy to simple majority rule instead of constitutionalism. By have “the people” vote for both senators and congressmen (the House of Representatives) the central government no longer had to worry about a check on the central government by the states.

        • Conrad Simoneau

          Yes it’s section 1 article 3. Of the Constitution

      • Conrad Simoneau

        It’s part of the Constitution and it can only be changed by amending the Constitution.

    • Conrad Simoneau

      To take power away from the states the progressives sold the electorate a bill of goods and destroyed one of the checks to keep government small. bsck then it was pretty hard to pass me laws.

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  • Jones

    Would the repeal of this Amendment restrict and make it harder for lobbyist to influence the senators and the way that they vote?

    • Conrad Simoneau

      Yes that’s why it won’t be repealed money talks my 2 senators vote for big pharma all the time for big $$

  • nuffsaid

    I honestly want to understand this. I see how, from a practical perspective, certain problems arose. But conceptually, how is giving the popular vote to the citizens of a state to elect their Senators less Federalist than leaving it to that State’s Legislators? Referring to a “State” as an entity represented by it’s Legislators sounds like the very antithesis of the notion that government is solely the creation of, and therefore entirely beholden to, consenting citizens from whom it draws its legitimacy, rather than an independent entity. How is a “State” somehow being disenfranchised from the Federalist model if it’s own citizens are directly electing their Senators? What am I missing?

    • Conrad Simoneau

      What the 17th did was make 6year congressman that gave no obligation to their state.

    • Sufferinginabluestate

      I think of it similarly to how I think about the Electoral College. There are literally enough people in the uber-urban areas of both coasts to sway the popular vote. But, the people in these areas have interests that are often in contrast to the people in other states not on the coasts. The EC is a mechanism to address that inequity.

      The passing of the 17th amendment basically was like jettisoning the EC.

      I’ll use my own state as an example (Minnesota); MN went blue this election due to the votes from the Minneapolis area counties, a couple northeastern counties, and some counties around Rochester in the southern portion. Essentially EVERY other county went red – VERY red. So, I’m stuck in a state run by the urbanites, who often couldn’t care less about my interests – or the interests of thousands of other “out-staters”. The urban areas are stinking with crime, poverty, and corruption – with people very much voting for the politician who will give them the most freebies. My interests essentially don’t count, because I’m in the minority party – but a group growing now to almost 50% in my stubbornly blue state. So, more and more of us continue to be disenfranchised by the “mob rule” election of people like Al Franken.

      If we repealed the 17th, me and all of my out-state companions would be better represented because we could demand that our reps ensure that our interests weren’t ignored. This is very similar to how we also get our interests noted via the Electoral College. Not exactly the same – but, very similar in principle.

  • dirtside

    “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.”

    …but because they did it by Constitutional Amendment, three-quarters of the states had to sign off on it. Were the state legislatures all morons? Did they not understand the purpose and function amendment? You’re trying to make this sound like a unilateral move by the federal government while ignoring the fact that it never would have happened if the states hadn’t been okay with it.

    That still doesn’t mean it was a good idea, but you can’t pretend like this was some one-sided power grab.