The 17th Amendment to the Constitution was the final nail in the coffin of American Federalism.
Recall that the Constitution, when written, divided government’s power at the federal level. Article I gave all legislative power to the Congress. In order to ensure that both the will of the people directly and the interest of the various States were represented and protected, the two subsequent Articles established that Congress as two separate chambers. One chamber would be elected directly by the people of small districts fairly uniform in socio-political bent. This House of Representatives would be the voice of the people. The other chamber, the Senate, was to be the voice of the several States. Each State’s legislature would elect or select that State’s U.S. Senators to go to the table of power and represent that State to the federal government. In order for any federal law to pass, then, that law had to be both the will of the people and in the best interest of the majority of the States.
In 1913, the States adopted an amendment to the Constitution (the 17th Amendment) that changed the way Senators were selected. Instead of being appointed by the various State legislatures, Senators would be directly elected by the people of that State. The various State legislatures no longer had any seat at all at the table of power. Further, they no longer had any control over the actions, votes, conscience, or future of those Senators. The States had lost all power to control the very federal government which they had created expressly to represent/serve them in the new union of States.
In the just over one hundred years since this amendment was adopted, we can easily point to the Seventeenth Amendment as the primary cause of expanding federal jurisdiction over things that should instead be State powers. You can go right down the list of federal laws that tromp on States — unfunded mandates, expanded police powers, financial and legal penalties to recalcitrant States and many others — and put your finger right on the underlying problem: the disintegration of American Federalism It is way past time to repeal the 17th Amendment and replace it with something closer to the founding vision of shared power between States and a strictly limited and controlled central government.
But, let’s improve a bit on the founding experiment in American Federalism. I see three flaws in the founder’s vision for the construction of the Senate.
First, they abandoned the one State, one vote principle that had served them so well in all previous Continental Congresses and at the Constitutional Convention itself. Much of this abandonment was the politics of the very compromise that yielded the bicameral. The delegates from the largest States wanted only proportional representation, arguing that total equality of the States allowed a slim minority of the population to dictate the rules. The delegates from the smaller States insisted on a more equal representation, arguing that strictly proportional representation would be the end of the interest of the smaller States in a short time. Both were correct. The ensuing dilemma almost brought the convention to a close without result.
The compromise was a bicameral legislature with one chamber of proportional representation and the other of equal representation. Also, one chamber (the proportional one) was a direct representation of the people while the other (the equal one) was representative of the interests of the various States. After much discussion and looking at the makeup of other equal chambers (including the State governments of the time), it was decided that each State should have two Senators. More importantly, it was decided that each Senator would be granted one vote. This seemed to appease both the large States by watering down the equality a bit and pleased the small States, who did not fear so much a total lack of representation should one senator be ill or otherwise indisposed.
Recall that these delegates were starting from scratch. The previous Continental Congresses were almost impotent to legislate at all and, with the one vote veto used under the Articles, were powerless to enforce even the most reasonable demands on any one unreasonable State. So, legislation was their primary concern, and they saw a stalwart Senate as the best brake pedal on the more pure democracy of the House. They did not so much (as I do) envision the Senate as more like a board of directors – an assembly of ambassadors from the various States.
And so, in our proposed amendment for a new and improved Senate, each State can send a delegation the size of its own choosing to the central government. But each State gets only one vote. We did limit the number of members of each State’s delegation to “no more than 4” as we likely would be asking for trouble with a chamber as large as 500. Given the next modification, however, a delegation as large as five is unlikely.
The second improvement I’d make to the founder’s vision is that I’d require each State to be responsible for the entire compensation package of their own delegation. This is, in my mind, an understandable oversight by the founders. They would never consider representing one’s State or the people of one’s district a “job” more than a “duty”. Further, it would have never occurred to the fine men who drafted our original founding document that our federal government would even entertain the idea of increasing their own salaries while borrowing money to pay other bills. But, given the culture of American politicians today, it should never be even considered that a legislature possess the power to determine their own compensation. Further, I think it wise to let there be no mistake in any Senator’s mind who is the boss.
Finally, the definition in the Constitution of six-year terms leaves States with no recourse when Senators go rogue. The Constitutional definition of terms seems to eliminate any State’s ability to recall Senators, whether they be elected directly or appointed by the State legislature. This stipulation must be fixed with any proposed amendment.
So, with these improvements in mind, here is our suggested amendment for repealing the Seventeenth.
Section 1. The seventeenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. Beginning with the session that commences after ratification of this amendment, the Senate of the United States shall be composed of at least one but no more than 4 Senators from each state, chosen by the legislature of that State Each shall serve at the pleasure of the State Legislature, but each State shall have only one vote.
Section 3. The legislature of each state reserves the right to recall Senators at any time.
Section 4. Each State shall be responsible for the entire compensation of its Senators from the revenues of the State. Each State may establish the compensation for service.
Section 5. This article shall be inoperative unless and until it has been ratified as an amendment to the Constitution of the United States by the legislatures of three-fourths of the several States within a period of ten years.
American Federalism, a definition.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (Emphasis added) James Madison, Federalist 45