A Fault and A Recommendation: 17th Amendment

3.   Instituting a New Form

The Declaration also asserts that men are endowed with unalienable rights; that governments are to secure those rights; and that new governments may be established to replace former governments when they become destructive of those rights. Assessing the Seventeenth Amendment in light of these principles requires a determination of whether or not the form of government as amended, better secures inalienable rights.

a.   Federal Character

The form of government established by the Constitution is a mixture of federal and national characteristics in a republican framework. James Madison explained the unique combination of federal and national features in Federalist No. 39. He concluded with this summary:

The proposed Constitution … is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; …¹²⁴

He also stated that this mixture presented “at least as many federal as national features.”¹²⁵ This demonstrates a delicate balance of power. The Founders believed that, of all the possible ways to organize the government’s powers, this particular form seemed “most likely to effect their Safety and Happiness.” Madison affirmed this arrangement in Federalist No. 51. He explained:

In the compound republic of America. the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.¹²⁶

With respect to the success of this system, Madison noted, “This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government….”¹²⁷

The Founders believed that a federal system would best secure inalienable rights. It is crucial to note, therefore, that the Seventeenth Amendment significantly undermined the original federal structure by abolishing state representation in the Senate.¹²⁸ Consequently, either the Founders were wrong in their belief about the federal structure’s ability to secure inalienable rights, or, the Seventeenth Amendment tended to jeopardize inalienable rights.

To judge the validity of the Seventeenth Amendment’s modification of the federal aspects of the Constitution. one need only consider whether such an alteration better secured the inalienable rights of the people. If inalienable rights are better secured by a diminished federal nature, then the Amendment improved the Constitution. But if the Amendment jeopardizes inalienable rights by diminishing the federal features, then it should be repealed.

That a diminished federal structure does tend to jeopardize inalienable rights is depicted in a recent Supreme Court case: Roe v. Wade. The Court gave constitutional status to abortion at the expense of state power and the unalienable right to life of an unborn child. That Court was composed of nine justices whom the states had no ability to select or to reject. The power of the state to protect the unalienable right to life was rendered inoperative by this Supreme Court ruling. The relationship between the Seventeenth Amendment and abortion is not tenuous. It is a prime example of the states being disabled from checking the usurpations of state power to protect unalienable rights. Though other factors are involved, the Seventeenth Amendment is nevertheless relevant. Its repeal on these facts alone is warranted.

b.   Republican Feature

In Federalist No. 39, James Madison defined a republic to be:

a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good behavior.¹²⁹

In Federalist No. 10, Madison contrasted this form of government is with a democracy. First he defined a pure democracy and exposed its inherent flaws:

a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischief of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.¹³⁰

He then stated that democracies, being unable to secure inalienable rights, are short lived:

Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.¹³¹

After this disparaging description, Madison said that a republic “opens a different prospect and promises the cure for which we are seeking.”¹³² He then elucidated the ways in which a republican system affects these cures. Madison said that representation of the people was designed to “refine and enlarge the public views by passing them through the medium of a chosen body of citizens…”¹³³

Representation was to “refine” — to filter out — only the passions of the people: it was not meant to silence the people’s will. Accordingly, Madison explained: “it is the reason alone that ought to control and regulate government. The passions ought to be controlled and regulated by the government.”¹³⁴ Acknowledging that human nature is subject to passions which oftentimes negate reason, the Founders instituted a government “of the people” based on a republican rather than a democratic form. They instituted this necessary “check” — representation — in the interest of the citizenry; to promote the good of the people. Madison affirmed this stating:

Under such a regulation it may well happen that the public voice, pronounce by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves.”¹³⁵

A unique expression of this republican principle was incorporated into the Senate. The method of indirect election of Senators through state legislatures was constituted as an additional check upon the “transient impressions” of the people. Federalist No. 63 graciously explains this useful aspect of the Senate:

such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?¹³⁶

Furthermore, because the House and Senate were built on different foundations (representatives of the people/representatives of the states) the use of representation produced still another check: the House and the Senate would check each other. Madison conveyed the need to form a government which would check the vices of both the people and their rulers in Federalist 51:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.¹³⁷

In light of these considerations. the Founders believed that utilizing the republican principle both by direct representation in the House and indirect representation in the Senate would best secure inalienable rights. Accordingly, Madison asserted:

It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution…. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.¹³⁸

The Seventeenth Amendment, therefore, by abolishing indirect election and by eliminating the differing bases of representation, significantly diminished the original republican character of the government. As with the federal feature, likewise, to judge the validity of the Seventeenth Amendment’s modification of the republican feature of the Constitution, one need only consider whether such an alteration better secured the inalienable rights of the people. If unalienable rights are better secured by a diminished republican feature, then the Amendment improved the Constitution. But if the Amendment jeopardizes inalienable rights by diminishing the republican feature, then it should be repealed.

The ratification of the Seventeenth Amendment itself presents a good example. For many years, the Senate successfully resisted attempts to institute popular election. Senators recognized this request as a misguided opinion of the people because. being skilled statesmen, they knew that such a change would, in reality, be detrimental to the people. Public opinion on the matter swelled, however, and many state legislatures gradually succumbed to instituting various processes which enabled their respective citizens to indicate their choice of United States Senators — a popular election of sorts, though the legislatures maintained the final authority as to Senate appointments. Just prior to the ratification of the Seventeenth Amendment, the Senators of twenty-nine states obtained their Senate seats in this manner. The corollary is that one of the chief arguments these Senators raised in support of popular elections was that the people clamored for the change. Were those Senators failing to assess the requested change in light of the principles at stake? Did their interest in reelection supersede their desire to do what was right? Was it a coincidence that after the quasi-method of popular elections was instituted by over half of the states, that the Senate became unable to resist the misguided opinions of the people?

Other examples not within the scope of this thesis could be examined. It is sufficient to conclude that the Seventeenth Amendment’s modification of the republican feature of indirect election does not better secure the inalienable rights of the people because it diminishes the necessary refinement process essential to protect the people from their own mistaken impressions.

According to the Declaration of Independence, when an existing form of government is altered, the new form instituted in its place must better secure the inalienable rights of the people. The Seventeenth Amendment clearly altered the original form in two ways: in nullifying state representation, it altered the national government’s federal character; by abolishing indirect representation and the different foundations of the bicameral legislatures, two of the safeguards of the republican system were revoked. Because these alterations did not better secure inalienable rights, and in fact, subverted them, the Seventeenth Amendment is inconsistent with the principles in the Declaration which dictate the conditions under which legitimate alterations may be made.

The foregoing examination reveals that the Seventeenth Amendment fails miserably to conform to the principles asserted in the Declaration of Independence. It consequently fails the first test applied to assess an amendment’s legitimacy.

B.   Second Test: A Discovered Fault

Was the purpose of the Seventeenth Amendment to correct a fault in the Constitution? In his presentation of the argument against popular election, George H. Haynes (noted scholar on the Senate) indicated the necessity of asking such a question in this remark:

Nothing more plainly marks the tyro in politics than his eagerness to secure radical changes in existing institutions without first asking whether the alleged abuses find their real source in the institution which he assails; whether the remedy he proposes is appropriate or adequate, or whether its application will produce disorg,3nization and other evils worse than those which it aims to remove.¹³⁹

Haynes asserted the necessity of determining the true cause of the Senate’s defects before suggesting a remedy, and certainly before proposing an amendment as a remedy:

To prove that the Constitution of the United States should be so amended as to provide for the election of Senators by popular vote, it is not enough to point out deplorable defects in the Senate: it must further be proved that these defects are due to the present method of election, that popular elections are calculated to remedy the evils and to do so without causing disproportionate injury to the structure and working of American government.¹⁴⁰

Most of the arguments for popular election were filled with accusations against the Senate and it is true that the Senate was evincing some serious defects.¹⁴¹ What was not true was that the method of election was responsible for those defects. If one were to reduce the complaints against senatorial election by state legislatures to their lowest common denominators, the end products would essentially be corruption and the consequences of protracted senatorial contests in the state legislatures. These were, indeed, real problems, but their root did not lie in the existing Constitution; therefore, amending that Constitution was neither appropriate nor remedial: it was futile and destructive.

1.   Bribery and Corruption

Bribery and corruption can occur regardless of the method of election. Proponents on both sides of the issue tried to persuade others that the method they endorsed was more likely to curb corruption. Although arguments on both sides were convincing, the real issue was that the existing method of election neither produced nor provoked corruption. The heart of the problem was, ultimately, the people.

A former Senator apportioned responsibility for the Senate’s defects as follows:

Whatever faults now and then happen under the present system do not arise from any fault in the system itself, but from the fault of the body of citizens themselves — non-attendance at caucuses and primaries; non-attendance at registration and at the polls; slavish fidelity to party organizations and party names; a contribution to and winking at corrupt use of money at nominating conventions and elections, and the encouragement or toleration of individual self-seeking in respect of getting possession of offices, all of which are truly public trusts.¹⁴²

Thus, the people must bear a degree of responsibility for defects in civil government if they either allow or contribute to political corruption. As Madison said, the government is “the greatest of all reflections on human nature.”¹⁴³ A republic will never be greater than its people. If the electorate is corrupt, or too apathetic to guard against corruption, then their government will be corrupt. Woodrow Wilson said that the Senate “contains the most perfect product of our politics, whatever that product may be.”¹⁴⁴ This holds true, even when that “product” is bad.

Nine years after the Seventeenth Amendment was ratified, an article by Thomas Shelton was published in the Central Law Journal. In it, Shelton articulated the futility of an amendment designed to eliminate corruption in politics. He stated that “fraud [was] occurring in elections in nearly every state…” and that “the amendment [had] failed in its purpose.”¹⁴⁵ He asserted the following as the reason for its failure:

the elimination of the disposition to defraud, oppress, cheat or bribe in elections, is not within the legislative control. It never will be. It will occur so long as the people governed wish or permit it, whatever be the method of election or the punishment for transgression prescribed. It is a maxim that a government is no better nor worse than the people it serves …. criminal laws do not make honest men nor were they intended for such. And still another thing, viz: that the dishonest will continue to pursue their wicked ways whatever the Constitution.¹⁴⁶

One may easily see that it was not a defect in the Constitution they were trying to correct — it was their own hearts. However, in the words of Shelton, “Force never permanently settled anything…. And it never created or improved the morals of a people.”¹⁴⁷ Proponents of popular election had confused the issues. Consequently, they wound up trying to apply the wrong remedy to the wrong problem.

The true solution to bribery and corruption lies in a revival of morals, not in amending the Constitution; and, while civil government has no jurisdiction over the conscience of man, it may encourage those activities which foster good citizenship. Accordingly, Shelton issued this bold proclamation:

Lessons in citizenship and government and their relation are needed. The children must be taught as an assurance of the future. Their elders need to learn that the government must be perpetuated for the children. If we have been guilty of preaching, it is a sermon in behalf of the awakening of the American people to a keen consciousness of the responsibility and duty of the individual suffragan and the relation of the sovereign states to the Union; to a sense of the disgrace that has come upon them by their neglect — the admission that their legislatures could not be trusted to elect United States Senators, and to the determination to bring up a new generation whose moral standards and political ethics are those of the founders of governments in America.¹⁴⁸

2.   Protracted Contests

While it is also true that both national and state interests suffered due to protracted senatorial contests in the state legislatures, the method of election was not to blame. The state legislatures were to blame. Shelton asked these pointed questions:

Are the sovereign states performing their duty to themselves? Are they depending too much upon the federal government? Are they taking any interest at all? Is there a realization that a United States Senator represents the sovereignty of the state and not the people?¹⁴⁹

The legislatures could have done more to resolve the causes of deadlock or prolonged decision-making. In earlier years states had resisted encroachment. Now the states were apathetic. The central government was able to enlarge its sphere of power in proportion to the states’ abdication of their own.¹⁵⁰ The Amendment, however, could not have corrected a fault in the Constitution since the fault lay in the state legislatures themselves.¹⁵¹

In summary, the Seventeenth Amendment falls short of the criteria of amendment laid down in the Declaration of Independence. It fails to maintain the standard of equality and consent, and lacks the requisite federal and republican characteristics necessary to better secure inalienable rights. In addition, the Amendment corrected no constitutional fault. Consequently, the Seventeenth Amendment was destined to deteriorate the security of the Constitution and ultimately the rights of the people.¹⁵²

The area most deteriorated has been in the maintenance of the constitutionally reserved powers of the states. It is not within the scope of this paper to trace the exact connection between the Seventeenth Amendment and the multifaceted process by which state powers have been eroded.

The connections. however, can be alluded to by a brief review of the conclusions of others.

In his book, The Making of America, constitutional scholar Cleon Skousen cites the Seventeenth Amendment as a cause of the erosion of state powers. He states:

This amendment provided that Senators must be elected by the people of the state “at large,” but there is no one in Washington specifically appointed to watch over state rights and state sovereignty. A serious deterioration has occurred since the Seventeenth Amendment was adopted at the insistence of the states themselves.¹⁵³

Skousen later said that the Founders’ original arrangement to provide an important balance “is no longer part of the system,” since the Seventeenth Amendment and that in many ways. “the detrimental consequences of this change have already become self-evident.”¹⁵⁴ Though Skousen does not elaborate on those “detrimental consequences.” his statement is indicative of the relevance of further inquiry into the matter.

Additional significance is indicated by the recent formation of the Working Group on Federalism. This group was mandated by the federal government. Its purpose is set forth below:

Established by the Domestic Policy Council in August. 1985, the central purpose of the Working Group. as defined in its charter. is to develop “a basic. administration-wide strategy” for ensuring that federal law and regulations are rooted in “basic constitutional federalism principles.”¹⁵⁵

One of the most influential products of this Working Group has come in the form of a report entitled. The Status of Federalism in America. Referring to the causation of the erosion of state powers, the report asserts:

The nationalization of state sovereignty has been accomplished largely through a two-step process in which (1) the national government’s political branches, usually relying on the commerce power or the spending power, enact a measure extending the reach of the national government into matters within the reserved powers of the States and (2) the national government’s judicial branch, through the power of constitutional interpretation, upholds the measure as consistent with constitutional federalism.¹⁵⁶

This means that the Senate itself has enacted legislation which has encroached upon state powers.

The report also states that “the major thrust toward centralization has occurred during the twentieth century.”¹⁵⁷ It then discusses the Sixteenth and Seventeenth Amendments and makes this statement about the Seventeenth:

Originally, Senators were elected by state legislatures. The Senate was designed to be a federal institution within the Congress. The Seventeenth Amendment substantially diluted the original purpose of the Senate — to provide a “constitutional recognition of the portion of sovereignty remaining in the individual States.¹⁵⁸

Thus, the report concluded that the legitimate authority of the states was “substantially diluted” by the Seventeenth Amendment. Although the report does not directly outline the specific consequences of the Seventeenth Amendment, the fact that it is mentioned in a report entirely devoted to the erosion of federalism is very telling.

Additionally, in his book, The Growth of America: 1878-1928, Clarence B. Carson excoriated the Seventeenth Amendment stating: “No other amendment to the Constitution has done so much to unsettle the structure of the government conceived by the Founders.”¹⁵⁹ After outlining the original intent of the Framers in instituting senatorial election by state legislatures and explaining the Seventeen Amendment’s alteration of this intent, Carson concluded: “state governments lost their main check on the federal government, and that has borne some strange fruit.”¹⁶⁰

George H. Haynes’ two-volume history of the Senate (published in 1938) outlines some of the negative effects of the Seventeenth Amendment. Though he was a proponent of popular elections, his conclusions clearly demonstrate that after 1913, Senators did represent individualized and/or localized interests at the expense of state and national interests.¹⁶¹

Based upon a principled analysis of the effects of the Seventeenth Amendment and upon the evidence presented, it is emphatically clear that the Seventeenth Amendment should be repealed.

V.   RECOMMENDATION

The foregoing analysis includes several points. First, the Seventeenth Amendment is inconsistent with many of the principles reflected in the Declaration of Independence.

The Amendment contravenes the principle of equality because, in shifting representation from the states to the people, it failed to make provision for equal representation of the people. It violates the principle of consent by denying the states a voice in the national government. The Amendment significantly diminishes both the federal character and republican nature of the the Constitution. In essence, the Seventeenth Amendment fails to better secure the inalienable rights of the people. In encroaching upon the reserved powers of the states, it obstructs states from securing the inalienable rights of its citizens. Practically, the Amendment did not remedy any faults. It was a misappropriation because the defects it sought to correct were not grounded in the Constitution. Instead of being remedial, the Seventeenth Amendment was detrimental: it created numerous new constitutional problems which contributed to the decline of federalism. Ironically, what was purported to be a remedy is now, itself, the cause for remedial action. Successful achievement of an agenda to repeal the Seventeenth Amendment requires careful cultivation. Two approaches to rectify this severe problem are recommended: education and action.

In an era when proper functioning of the American republic is misunderstood by the majority of citizens, one must purpose to reeducate that citizenry if one expects to gain grassroots support. Due to the nature of the Seventeenth Amendment, one must gain support at the grass roots level for its repeal. Now that the population has the power to elect their Senators, it will take a great deal of educating for the people to realize that it is in their best interest to relinquish that power and return it to the state legislatures.

First, the people must be taught that the Declaration of Independence is the true expositor of the principles and terms employed in the Constitution. Accordingly, the purpose of government is to secure the inalienable rights of the people, not to undermine those rights. Once this foundation is laid, education is needed in three basic areas: federalism, the Constitution, and the Senate. When the people understand the controlling principles which govern these three areas, they will be equipped to draw their own conclusion about the Seventeenth Amendment.

People need to understand what federalism is and why it is crucial to the American form of government. They need to know the jurisdictional distinctions between the national and state governments and be made aware of the problems that have resulted from the erosion of state powers. These problems must be framed in practical terms to which the people can relate. When they are convinced of the necessity of federalism, they will search for restorative solutions. At that point, the people would be ready to consider repealing the Seventeenth Amendment.

Additionally, the American people need to understand their Constitution — not only what it provides, but how it provides. In other words, besides understanding what it says, they need to understand the nature of constitutions in general. When citizens comprehend the controlling principles that govern the United States Constitution, they will be able to assess the propriety of proposed amendments. They will not be prone to suggest constitutional amendments as the ultimate solution to every civic problem. When the people once again become constitutionally literate, they will be in a position to reconsider the Seventeenth Amendment. Having gained the tools to assess its legitimacy, citizens would be equipped to discern its misappropriation.

Finally, the institution of the Senate must be retaught from a principled perspective. Citizens should be aware of how the Senate was constituted and why it was designed as it was. Because Attorney General Edwin Meece has already done much to reeducate the public in the area of “original intent,” it would be profitable to implement a strategy for repealing the Seventeenth Amendment by emphasizing the original intent for the Senate. It is hoped that this renewed perspective would foster a principled assessment of the Senate’s ills and diminish proposals of pragmatic remedies. An encouragement toward remedial action couched in this framework would be an excellent environment in which to suggest the repeal of the Seventeenth Amendment. In addition, when people realize that Senators were originally considered representatives of their state, as a state, they will see the obvious correlation between this and the method of election.

Another consideration aside from the general population is the state governments. The state legislatures need the same education. Because many of the state’s legitimate responsibilities are now handled entirely or partially by the federal government, the state governments are not currently used to operating, fully, like true states. A cultivation process must, therefore, also take place in the state governments. Until they again begin to exercise their legitimate authority, electing a Senator as their representative would be premature. The mandate for such a transformation in the state governments must come from the people. They must gain a greater sense of state consciousness. Rather than considering themselves as merely United States citizens, the people must regain an attitude of dual citizenship — of their state and nation.

The states presently possess the authority to call for a correction of the encroachment upon their reserved powers. It is in the best interest of the people for the states to reacquire accountability between the state legislatures and their respective Senators. This would give the states more control in the national Congress and permit them to protect themselves from national encroachment. The state legislatures could begin to reacquire such accountability by passing a resolution which would require Senators to appear before their respective state legislatures both before and after Congress opens and closes. The legislature could then inform the Senators as to the best constitutional interests of the state and its people before Congress opened and then assess their performance after it closed. The state legislatures could hold their Senators accountable in the public eye and should work to do so. Action of this kind would be a step in a restorative direction.

Additionally, when grassroots education is successfully achieved, and the state legislatures are sufficiently prepared, the next step toward repeal is to encourage action in the national legislature. When the societal disposition becomes favorable to the abrogation of the Seventeenth Amendment, various appeals to this effect can be made to governing authorities. Consistent entreaties should eventually yield positive results. This would require that members of the United States Senate also be reeducated about the constitutional role of the Senate. Senators need to be persuaded of the wisdom of the original intent of the Senate — that was an integral part of the federal system. Then, the Senate itself should undertake to repeal the Seventeenth Amendment for the benefit of all United States citizens.

Though there would be obvious, and, at times, fierce opposition to the foregoing strategy, such a battle must be waged. The threat of defeat is not an acceptable excuse for inaction. When principles have been wounded, one has no option whether or not to fight, only how and when. The threat of defeat need not be so ominous, however. There is cause for hope when one considers that America is governed by a written constitution and that the original intent can be discerned. Though the foundation for federalism is severely damaged, it is not totally destroyed. What remains can be strengthened and used as an allurement to restore what has been lost.

When all is said and done, however, the author realizes that without virtue in the people, the recognition of the truth of the aforementioned propositions will be negligible. Without sustaining virtue, the consequences of vice can never be rolled back. It is the prayer of this author that the American people will rise to the occasion — it is their government — a republic, if they can keep it.