Debate Over Popular Election – 17th Amendment

III.   DEBATE OVER POPULAR ELECTION

A.   The Political Climate

As early as 1826, discontent over the original method of senatorial election was expressed. Popular election of Senators was first proposed by members of the House of Representatives. However, it was discussed for many years before the Senate even considered it.

Interest in this proposition gradually mounted and then peaked in 1892 at the launching of the Populist Party.

their platform called for an extension of popular control over legislative machinery… in this very year some 23 constitutional amendments providing for the popular election of Senators were introduced.⁷⁰

In an historic sense, the significance of the Populist Party was broader than merely its provocation of the popular election of Senators. The party had significant effect upon the nation in terms of ideas, even though it had little success placing its adherents in elected office. Unfortunately, those ideas were founded on socialistic principles — the notion that “it is the business of society to look after and provide for the needs of every one of its members.”⁷¹ This concept is depicted in a statement made by a Populist supporter: “I claim it is the business of Government to make it possible for me to live and sustain the life of my family.”⁷² The perpetration of this kind of thinking would certainly lead to the expansion and centralization of the national government. It is therefore significant to note that some of the programs championed by the Populist Party were later adopted by the Democratic Party and were eventually enacted, albeit in an altered form.

Of this period, it is also important to note that the general population had become skeptical of government officials, fearing that they were controlled by big business. Ward Elliott, author of The Rise of Guardian Democracy, said that the late 1800’s are

remembered as the most corrupt in the nation’s history. The growth of industry and finance after the Civil War made control of state and city governments a valuable prize for fortune hunters in and out of government. It was the era of the professional politician, the hey-day of the boss.⁷³

Many people came to believe that a solution for these social ills was the exertion of more popular control over government. Thus, the popular election of Senators was posed as one avenue by which to achieve this objective.

Though the Populist Party disbanded, interest in popular election was only temporarily cooled. Two amendments for popular control were introduced in 1902 and in 1908, five. By 1910, however, a resurgence of interest again began to peak.⁷⁴

This curious fluctuation may have been a result of the political shift from Populism to Progressivism.

Populism had hardly been turned back and its following begun to dwindle away when a new surge of reform swept over America in the early 20th century. It is generally called Progressivism, and it had a much broader following and greater impact than did all the third party, reformist, and collectivist movements of the latter part of the 19th century.⁷⁵

Progressivism was an ideology, the goal of which was: “to associate the idea of progress with reform measures in such a way as to make the expanded role of government appear to be progressive.”⁷⁶

The Progressive ideology sprang from Darwinism — an ideology based upon the doctrine of evolution. The theory of evolution was applied to the field of sociology by the British philosopher, Herbert Spencer. The term, “survival of the fittest” was coined by Spencer. Applied in society, this meant that only the strong survived and that any interference with this natural process which weeded out the weak was counterproductive to the overall progress of mankind. The result was a theory which purported “that evolution was synonymous with progress.”⁷⁷

Another philosophy which emerged from the theory of evolution also found expression in the Progressive movement: pragmatism. Formulated by John Dewey, Chauncey Wright, Charles Peirce, and William James, this philosophy embraced the notion that “the test of truth was to be found in its consequences; the business of the philosopher was to find out what worked to the best possible purposes.”⁷⁸ The problem with this philosophy was that it exchanged function for form, and practice for principle. The authors of The Growth of the American Republic lamented: “The effect of such an attitude [pragmatism] on politics, law, economics, social institutions, education, art, and morals was little less than revolutionary.”⁷⁹ Speaking not just of pragmatism, but of the overall philosophical shift of the turn of the century, Carroll and Faulk, in Home of the Brave likewise affirmed: “these were momentous years, during which a revolution was occurring⁸⁰

One of the chief leaders of this “revolution” was Theodore Roosevelt. The introduction of the progressive agenda into the Republican Party was due largely to him.⁸¹ The Roosevelt administration established the groundwork for accomplishing progressive reforms and then William H. Taft was launched into the presidency (primarily by Roosevelt’s power) to continue its momentum. Though Taft, in actuality, did not further the progressive agenda as radically as was wished, his administration still, unfortunately, proved to be subversive of the established system.⁸² Woodrow Wilson, a Democrat, defeated Taft in the election of 1912. His was the administration which ushered in the Sixteenth, and Seventeenth Amendments, as well as the Federal Reserve System.⁸³ These radical changes represented a gross departure from the previous constitutional government of more than a century.

Such was the milieu out of which the Seventeenth Amendment sprang. A liberal influence pervaded the politics of that day. A world view which espoused enduring principles was being overtaken by an evolutionary world view. It was believed that mankind was developing toward perfection — that theories and beliefs adhered to in the past were outmoded for the present and future.

In 1910, the Maine Law Review published an article by University of Maine professor Robert T. Sprague which aptly depicted the progressive attitude of this period. Calling for a constitutional convention Sprague alleged:

Since 1789 the whole religious and philosophic aspect of the world has revoluted, and vital social and political problems, unknown at that time, have arisen.

And with all this has changed the aspect of the functions and relations of the state to society. The old theory that “that government is best which governs least,”…has given way to government as a means for the development of an ideal society. Social legislation is becoming progressive and constructive, with a goal of race betterment and the brotherhood of man.

Government is … regarded as … the best instrument for accomplishing good works….

In the 120 years since 1789, mankind has made more material and spiritual progress than it had made in thousands of years before that date. Wonderful as the work of the 1787 Convention was and thoroly [sic] as it seemed to meet the needs of that distressed period, it cannot be regarded as sufficient for all time or all conditions….

No human instrument of this kind could be expected to be sufficient for all the evolving stages of the wonderful progress of man.⁸⁴

This kind of thinking was propagated among legal and political scholars and then disseminated to the general public. As it gained acceptance, constitutional bulwarks began to erode.⁸⁵

It is not surprising, therefore, that the era which saw the ratification of the Seventeenth Amendment saw great changes occur in the fundamental principles of the United States’ form of government. Historian Forrest McDonald of the University of Alabama described these changes in his book, The Constitutional History of the United States. He first affirmed that before the turn of the century, the government, as originally established, remained essentially unchanged in form:

Despite the technological revolution and the sweeping economic and social changes that came with it, the Constitution continued to be, until 1910 or thereabouts, much what it had been a century earlier. It still provided a mixed “republican” form of government, with sovereignty divided by the federal system and the separation of powers.⁸⁶

He then regrettably reported that, “Growing numbers … were convinced that the system was obsolete⁸⁷ Consequently,

During the next quarter of a century major overhauls were made to remedy these supposed defects. As a result, the system of checks and balances and the very idea of limited government underwent a great deal of erosion.⁸⁸

McDonald continued by describing the essence of the changes which resulted from this erosion. He characterized one of those changes as being “toward greater democratization and nationalization — toward a powerful central government….”⁸⁹

He next asserted, however, that

That was not what the Founding Fathers had had in mind; their aim had been to create a diverse system that would protect the people from one another and from government itself.⁹⁰

The constitutional bulwark of that original system was traded in for what was naively believed to be a superior system — one based on, supposedly, a more advanced theory of government. How was one system substantively traded in for the other? McDonald concluded that, “Much of the democratizing and nationalizing was done through constitutional amendments,”⁹¹ one of which was the Seventeenth.

Familiarity with the political climate of this period assists one in understanding the actual debates concerning the method of senatorial election. Those debates are now reviewed.

B.   Arguments for Popular Election

Adherents of popular election cited many reasons for their belief in the necessity of this change. Briefly summarized, these reasons are as follows.

1. Election by state legislatures is obsolete. The condition of the nation has radically changed since 1787. Whereas the Founders mistrusted the people, officials of today believe that the people are trustworthy and intelligent. Whereas the states used to be loosely united and jealous of their sovereignty, a national consciousness has come to be more predominant. Whereas popular election was impractical before due to poor communication, new innovations have eradicated this problem.⁹²

2. Both national and state interests suffer due to protracted senatorial contests in the state legislature Many legislatures render themselves ineffective in the internal affairs of the state because they become deadlocked in decisions regarding United States Senators. These deadlocks have continued for months and sometimes lasted an entire legislative session. In some cases, the state goes unrepresented or only partially represented in the Senate because an election is not resolved. National interests then suffer due to the absence of various state Senators.⁹³

3. The change will not affect General Government-State government relations. The original method of election was not the factor which distinguished that the states be represented as states in the Senate: equal representation was. Even so, the Senator can still represent the state as a state though he is elected by the people.⁹⁴

4. Popular election would not hinder the Senate’s past prestige and success. It was not the method of election which contributed to the Senate’s success, it was the length of their term, gradual renewal and its small size.⁹⁵

5. The current method fosters bribery and corruption. The Senate has come to be referred to as “the rich man’s club.” Rich men can buy a seat in the Senate. Corrupt men can be placed in the Senate and become rich by taking bribes to do corporate bidding. The people do not trust the Senate any more. The Senate’s inaction on the issue of popular election has tended to incriminate it.⁹⁶

6. Popular election would make the Senate responsive to the people. The people are the proper mouth-piece of the state. yet the Senate is unresponsive. The proposed amendment is a just tribute to the intelligence and integrity of the individual voter. The current method fosters a “kaleidoscopic constituency” for the Senator. Many or most of the men in the state legislature who voted him in are no longer there at his time of re-election. Searching for consistency, he turns to the party. The Senator winds up representing the party boss rather than the state or the people.⁹⁷

7. Public opinion demands the change. Obviously, the majority of the people want this amendment.⁹⁸ It would be undemocratic not to give the people what they want.

8. Amending the Constitution is not odious when done for a just cause shown. The Founders were not opposed to change, that is why they included Article V. The Constitution must change with the times according to the needs of the people.⁹⁹

9. Representatives for the state legislatures are not being chosen for the proper reasons. The people are electing officials, not for their abilities, but for their choice of United States Senator. In a state election, the voter is forced to consider both national and state issues.¹⁰⁰

10. The election of Senators is not a legislative function. State legislatures are to make laws, not elect Senators.

This summary represents views which were widely held and publicized during the turn of the century.¹⁰¹

C.   Arguments Against Popular Election

Despite the fact that those who supported this change finally grew to a majority, there were statesmen and citizens who boldly presented arguments in support of the status quo. A synopsis of these arguments is as follows.

1. Election by state legislatures was a wise plan. The Founders chose to institute a bicameral legislature founded on different bases as a check against usurpation of power and as a distinction between representation of the population versus representation of the states. This was a foundation of the federal system. Furthermore, it was believed that the men charged with serving the interests of the states were best qualified to choose the State’s representative (Senator) in the General Government.¹⁰²

2. Election by state legislatures was a protective device against the excesses of democracy: This notion, properly understood does not imply a mistrust of the people. George F. Hoar, eminent Senator from Massachusetts and avid opponent of popular election, aptly stated:

I am not afraid to say to the American people that it is dangerous to trust any great power of government to their direct or inconsiderate control. I am not afraid to tell them, not only that their sober second thought is better than their hasty action, but that a government which is exposed to the hasty action of a people is the worst and not the best government on earth. No matter how excellent may be the individual, the direct, immediate, hasty action of any mass of individuals on earth is the pathway to ruin and not to safety. It is as true today as it was when James Madison … first said it, “That, although every Athenian citizen might be a Socrates every Athenian assembly would still be a mob.”¹⁰³

Though the Founders believed in this necessary check upon the passions of the people, increased democracy is being advocated through popular election of United States Senators. The consequences of increased democracy are already being reaped in other areas:

More and more, American government has been democratized, in the sense of the voters taking power directly into their own hands. In some state governments, this has been carried to absurd lengths, and entirely non-political offices … are chosen by an electorate who know next to nothing of the nature of the work to be done, or of the candidate’s qualifications for such service.¹⁰⁴

This is an indication of the demise which is certain if Senators are elected by popular vote.¹⁰⁵

3. Election by state legislatures has been successful. The United States Senate has been hailed as the most successful upper chamber in the world. It has thus been imitated by a considerable number of other federal governments. A historical role call of the Senate demonstrates the caliber of men who have served their states and nation over the last 100 years. Most Senators have already demonstrated that they have gained the people’s confidence, having previously been directly elected to other positions.¹⁰⁶

4. “Popular” election would, in reality, amount to choice by party convention. In most states, a party convention would choose the nominees for United States Senator. The people would not really be any nearer to true choice of representation. Corruption can occur in party conventions more easily than in state legislatures because state officials are under oath and constant public scrutiny.¹⁰⁷

5. Popular election would impair the necessary independence of the Senate. The Senate is constituted to be a buffer against the schemes of political manipulation. Popular election would subject the Senate to continual pressure from special interest groups. Senators would be unduly distracted from their work by having the extra burden of maintaining good communication with constituents.¹⁰⁸

6. Disputed elections would be more frequent and more difficult to settle if election was by popular vote. Contests in the Senate have been comparatively few whereas the House has had about 350 contested elections. The likelihood of disputed elections increases with a popular vote. Because each house is the judge of the elections of its members, an inquiry into a popular election would be a serious drain to the Senate, being much more difficult than an inquiry into a legislature’s election.¹⁰⁹

7. Popular election would produce disproportionate representation of the population.

If Senators are to be elected by the direct vote of the people…. the election [will be] committed to mere mass, to mere weight of numbers, with no regard to the qualitative elements or to the State’s varying sections and interests except as they may chance to be served by proportionality to population.¹¹⁰

8. Popular election could entice large sates to advocate proportional representation in the Senate. Equal suffrage in the Senate is the only provision of the Constitution secured against amendment. However. representation of the people in the Senate. rather than of the states. may foster great discontent among the larger states due to their unequal representation. This discontentment could produce disastrous results.¹¹¹

9. Popular election will not guarantee better Senators. It may be reasoned that because election by state legislatures worked well for many years, the evil symptoms now experienced must be produced from a different source, a proven method does not suddenly become defective.

10. Popular election would attract the wrong kind of men to seek the senatorship. The necessary qualities of a Senator are such that he would most likely not be the kind of person to run the stump. The qualities of a Senator should be:

Long schooling in statecraft, ability to master intricate problems of finance, to keep one’s head in the midst of popular clamor, to hold one’s tongue when public policy demands silence ….¹¹²

Oftentimes, the winner of a popular election is merely a man with a magnetic personality — a master of perfervid oratory. Greater depth than mere charisma is necessary for the senatorship.¹¹³

11. Deadlocks in state legislatures can be alleviated. The Act of 1866 could be reformed so that if a majority is not reached within a reasonable amount of time, a plurality will suffice. Another solution may be to encourage the states to experiment and develop a viable strategy for resolution. When the best plan is found, the other states will most likely develop similar plans.¹¹⁴

This short summary of the debates generates much food for thought. It can also foster confusion due to one major factor: many of the reasons given are based on expediency and are simply pragmatic. Addressing the question “What will work?” was paramount to answering the question “What is right, based upon the principles at issue?” Consequently, before giving any further attention to the debates, one must assess the proposed amendment from a principled standpoint.

IV.   ANALYSIS OF THE SEVENTEENTH AMENDMENT

The Founders, aware of their fallibility, made provision for amending the Constitution. Although the amending process is outlined in Article V, the Constitution, itself, does not specifically set forth the criteria by which to discern the legitimacy of an amendment. The criteria for an amendment is identical to the criteria for a constitution. A constitution articulates the form of government appropriate to the administration of law in accordance with certain principles. As the United States Constitution embodies a form of government derived from the principles in the Declaration of Independence, so too must amendments.

The Declaration established the United States as one people though, as yet, they had no form or constituted government.¹¹⁵ In creating one people, the Declaration asserted the following principles:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed….

Thus, the purpose of government is to secure the inalienable rights of men. When the English form of government became destructive of those rights to the point of “absolute Despotism,” the Revolution was undertaken to “throw off” that form and institute a new form. Accordingly, the Founders articulated the basis upon which that new form of government was to be established:

whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new GovernmentL laying its Foundation on such Principlest and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.¹¹⁶

The Declaration of Independence was a statement of the “principles” upon which the new government’s “foundations” were laid, and the Constitution was the framework for “organizing its Powers in such Form as to them [the governed] shall seem most likely to effect their Safety and Happiness.” The term, “effect their Safety and Happiness,” is simply a way of saying, “secure the unalienable rights of the people.”¹¹⁷

The Constitution drafted by the Framers embodied an “organization of powers” laid upon the principles asserted in the Declaration of Independence. The new form was both federal and national in a republican framework. This combination seemed “most likely to effect their Safety and Happiness.”

A lesson and rule are herein reflected and bear directly on the Seventeenth Amendment: as the Constitution corresponds to the principles asserted in the Declaration, amendments to that Constitution should also correspond to those same principles. This rule provides one criterion by which the legitimacy of an amendment may be tested.

The second criterion for testing legitimacy is related to the purpose of an amendment. That purpose is to correct a discovered fault which renders the Constitution inconsistent with its purposes. A “fault” may be in the form of a missing provision which has been deemed essential as an inclusion. The amendment process outlined in Article V reflects this correlation. Of this process James Madison said:

It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.¹¹⁸

The discovery and amendment of faults is desirable so as to render the Constitution more consistent with the principles espoused in the Declaration of Independence, i.e., more likely to secure the inalienable rights of the people.

In summary then, an amendment must first be consistent with the principles asserted in the Declaration of Independence, and second, it should serve the purpose of correcting a fault in the Constitution. These two controlling propositions constitute the legal framework by which the legitimacy of the Seventeenth Amendment may be tested.

A.   First Test: the Principles

The principles articulated in the Declaration of Independence are: 1) that all men are created equal; 2) that they are endowed by their Creator with certain inalienable rights; 3) that governments are instituted to secure those rights; 4) that government is by the consent of the governed; and 5) that governments may be altered or abolished when they become destructive of inalienable rights and new governments which better secure those rights may be established in their place.

1.   Equality

Of these points, the proposition of equality deserves initial consideration. The principle of equality translates constitutionally into an equal representation in the Congress.¹¹⁹ Because men are equal, no person should be given more weighty representation than another.¹²⁰ Under the original method of election, this principle did not come to bear upon individuals directly because the Senate represented the states as political entities — the people in their corporate capacity, rather than in their individual capacities. The equality principle did come to bear upon the states, however, and this is why they are represented equally — two Senators per state. Madison affirms this, stating: “The Senate … will derive its powers from the States as political and coequal societies; and these will be represented on the principle of equality in the Senate….”¹²¹ Because the Senate represented the states as political entities, representation based upon population would have been contradictory. Therefore, though the more populated states did not have proportionally greater representation in the Senate, the principle of equality was not violated because it did not apply, in this case, to the individual.

The Seventeenth Amendment shifted the manner of election from the states directly to the people directly. In so doing, it shifted representation from the states, directly to the people, directly. Consequently, in order to remain consistent with the equality principle, proportional representation would have to be instituted. It was not. The number of senators remained fixed at two. While the equality of representation principle has been ensured in the House of Representatives by the Fourteenth Amendment¹²² No similar provision has been made with respect to the Senate. Consequently, the interests of people in more populated states like California receive disproportionately less representation. Delaware, on the other hand, a relatively unpopulated state, is accorded greater representation since it elects the same number of senators as California — two.

This disproportion grossly contradicts the equality principle. It denies the proposition that equality is required in representation. The Seventeenth Amendment, therefore, because it was not accompanied by a provision for apportionment, contradicted the equality principle. It shifted the representation to the people, but did so without the necessary correlative of apportionment.

Though instituting apportionment would correct the equality of representation principle, it would create other problems. If apportionment was instituted, the large states, having proportionally greater representation in the Senate. might tend to take advantage of the small states. The small states would have no adequate provision to defend themselves against such encroachment. This would consequently weaken their ability to secure the inalienable rights of their citizens. Thus, another principle would be violated — the principle that governments are instituted to secure the inalienable rights of men.

A no-win situation is created by the Seventeenth Amendment. If apportionment is not instituted, the equality of representationzprinciple is violated; yet, if it is instituted, the constitutionally reserved powers of the small states are threatened, rendering them less able to secure inalienable rights. The only viable conclusion in light of this irreconcilable contradiction is that, in a federal system, the election of Senators must be by state legislatures in order to remain consistent with its controlling principles.¹²³ On these grounds, repeal of the Seventeenth Amendment is indicated.

2.   Consent

The next principle of the Declaration by which the Seventeenth Amendment must be considered is closely related to the previous one: that is, consent of the governed. Because government is by consent, the states, acting on behalf of the corporate interests of their citizens, must be represented in the national government just as the people individually are represented (in the House of Representatives). Just as the people seek to insure the protection of their inalienable rights by electing representatives unto this end, so states were intended to have a similar means of protecting their reserved powers. However, as a result of the Seventeenth Amendment, the states as states can no longer participate in the national legislative process. If Congress proposes a bill that will effectively strip a state of one of its constitutionally reserved powers, how can that state overcome such an attempt?

In the Senate, the states may no longer vocalize their interests with respect to treaties, or the appointment of ambassadors, supreme court justices or other government officials. How may the states protect themselves against national encroachment if they are denied this influence in the national legislature? If the president wants to appoint a supreme court justice who would construe the law in such a way as to encroach upon the reserved powers of a state, how can that state defend itself? Additionally, might not a border state have more of an interest in the appointment of ambassadors to Canada and Mexico than an interior state? Without bona fide state representatives in the Senate, these types of interests cannot be authoritatively expressed.

The authority to represent a state. as a state, was derived by the method of election. A representative is responsible to that political body he is elected to represent. If he is elected by the people of a state, then he is responsible to them. If he is elected by the state legislature, then he represents that body as they speak for the incorporated whole. If this had not been the case, then the Founders would not have articulated a clear distinction between the House and the Senate — that the House, being elected by the people, represented the people, and the Senate, being elected by the state legislatures, represented the states.

It has been argued that even though Senators are now elected by the people, their ability to represent the interests of their state is not diminished. This is not the case. The Senate simply does not represent the states either de jure or de facto. They do not represent the state as a matter of law because they are not legally amenable to the states as states. Neither do they represent the states in fact since the political realities skew their positions toward special interests. The plain fact of the matter is that senators now have no legal or factual motivation to defend the states against federal encroachments. Because the Senate was to be the branch of the legislature in the national government which represented the states as states, and, because this representation was secured by the election of Senators by state legislatures, the abolition of election by state legislatures also abolished de jure and de facto state representation in the Senate. This clearly demonstrates that the Seventeenth Amendment contradicts the principle of consent of the governed.