The Quest to Repeal the 17th Amendment, Because of Reasons

By Udo J. Keppler, 1872-1956 [Public domain], via Wikimedia Commons

Apparently the 17th Amendment saved America from a giant octopus named Standard Oil, or something.

A movement is afoot among certain people on the right end of the political spectrum to repeal the Seventeenth Amendment to the U.S. Constitution. This movement seems unlikely to rile up the masses, given that the changes brought by the Seventeenth Amendment are pretty much presumed to be the status quo at this stage of America. Understanding what the 17th Amendment does, and why it was enacted in the first place, is at least as important as understanding why some people want to repeal it. I have some idea as to why it was enacted, ratified, etc., but I’m still working on understanding the reasons for seeking repeal.

What is the Seventeenth Amendment?

The Constitution, in Article III, Section 3, Clauses 1 and 2, originally provided for election of U.S. Senators by state legislatures.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

The Seventeenth Amendment superseded the parts in bold. It pretty much took those provisions verbatim, except that it replaced references to state legislatures with references to “the people.”

Drawing from the resources available to me on a laptop in a coffeehouse (Justia and Wikipedia), I can say that much of the impetus for the 17th Amendment was “popular dissatisfaction with the operation of the originally established method of electing Senators.” As more and more people got the right to vote, people began to think that they should be able to elect senators directly. The idea had apparently come up multiple times since the 1820’s, but didn’t make it into the Constitution until 1913.

What’s the problem with directly electing Senators?

Good question. Many of the objections during the ratification process involved upsetting the existing system and removing any direct influence that state legislatures could have at the federal level. Jay Bybee, formerly a law professor and currently a judge on the Ninth Circuit Court of Appeals, offered this explanation of the major objection in the Northwestern University Law Review in 1997:

Politics, like nature, abhorred a vacuum, so senators felt the pressure to do something, namely enact laws. Once senators were no longer accountable to and constrained by state legislatures, the maximizing function for senators was unrestrained; senators almost always found in their own interest to procure federal legislation, even to the detriment of state control of traditional state functions.

In a nutshell, therefore, the primary objection to ratification of the 17th Amendment, as far as I can tell with such minimal research, was concern over the waning influence of state legislatures in Washington.

It’s been 100 years. Why is this a big deal now?

That is a very good question. After 100 years, election of Senators by state legislators seems most likely to be a historical memory of interest to college professors, and yet it has inflamed the passions of more than a few. Finding a cogent explanation of the motivation to seek repeal now has been an interesting venture. Much of the discussion in traditionally conservative publications strikes me as overly strident and laden with assumptions I do not share.

Charles C.W. Cooke, writing in the National Review in March 2013, characterized repeal as “removing this ugly violation from the Constitution it so corrupts,” still without ever quite explaining what was violated and how. He takes a quote from a 17th Amendment supporter (such as it were) about the benefits of increasing access to democracy, and uses it to trot out the lines that (a) the United States a constitutional republic, not a democracy; and (2) that “America’s highest ideal” is “liberty, not democracy.” As far as I can tell, repealing the 17th Amendment would promote one set of abstract nouns over another.

Salon writer Alex Seitz-Wald, the very writer critiqued by Cooke, offers a good summary of recent statements by politicians who are critical of the 17th Amendment, as well as the motivation:

Why would anyone want to take away people’s rights to elect their senators? Repealing the 17th Amendment has long been a hobbyhorse of the fringe right, but the Tea Party and Paulite libertarians popularized it, along with their fetishization of a revisionist view of the Founders and states’ rights. The idea is that if state legislators elect senators, Congress will be responsive to the needs of state governments, and thus preserve states’ rights and prerogatives.

There is a certain element of ancestor worship at play as well, I think. By this, I mean the notion that the document crafted by the Founding Fathers is all-but inerrant and deserving of near-total deference (as long as you ignore all the 3/5 stuff, you know.) Seitz-Wald included a quote from Arizona Senator and real-life Ken doll Jeff Flake, from when he was still a Representative:

Rep. Jeff Flake, the front-runner for the Republican nomination for a Senate seat in Arizona, said this week when asked about repeal, “I think it’s better as it reinforces the notion of federalism to have senators appointed by state legislatures.” After he caught some flak for the remark, a spokesperson clarified, “As a supporter of the principle of federalism, Jeff Flake believes that the Framers of the Constitution gave state legislatures the power to appoint U.S. senators for good reason. However, he has not called for the repeal of the 17th Amendment.”

It would appear, therefore, that the movement to repeal the 17th Amendment has, at least on its face, the same motivation as  the opposition to its ratification, and it is coming up now as part of the much larger everything-WashingtonObama-does-is-bad movement.

Here’s a question to ponder though: Since direct popular election of U.S. Senators is now a century old, how “conservative” is it to want to upend all of that? Sounds like a pretty radical rocking of the boat to me.

Photo credit: By Udo J. Keppler, 1872-1956 [Public domain], via Wikimedia Commons.


4 thoughts on “The Quest to Repeal the 17th Amendment, Because of Reasons

  1. We would not have 100 years of bigger and bigger gov’t if it wasn’t for the 17th. Now we are to the point of socializing medical care, we are a transfer payment society, and over-regulation that would not occur if the senators had the state leash on them. Also i have no practicle influence on my senator who is in Washington. If they were still selcted by the staet legislature I would have 3 local reps in the state house who have offices in my township that i can go to and make my feelings known and have influence on the doings in DC. As it stands now the local state assemblymen and senator are useless in standing against the edicts of fdreral gov’t.

  2. I would like to interject regarding the actual reason for the 17th amendment. If we want to get a handle on the 17th , we cannot use current sentiment; we must read history and become aware of the actual personalities involved in bringing it forth. With a basic understanding, we must conclude that the two party power structure was the intent and the effect of this constitutional change. One must view this change from the perspective of the effect at the time and not its current case study. Be aware of the fact that prior to the 17th, our state reps were chosen by you (us), by district; our neighbors and friends. After, from day 1, the parties (Dem & Rep) slammed a stack of $ on someone’s desk and said you’re our guy in Georgia ( enter your state here). It is still this way now. You will miss the point attempting to consider this issue otherwise, unless of course it it your intent to miss the point.

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