The War Against the 17th Amendment

WASHINGTON, DC - JULY 21: (L-R) Senators Jeff Flake (R-AZ), Ted Cruz (R-TX) Mike Lee (R-UT) and John Cornyn (R-TX) listen to
WASHINGTON, DC - JULY 21: (L-R) Senators Jeff Flake (R-AZ), Ted Cruz (R-TX) Mike Lee (R-UT) and John Cornyn (R-TX) listen to testimony during a Senate Judiciary Committee hearing on Capitol Hill, July 21, 2015 in Washington, DC. The committee heard testimony from family members who have had loved ones killed by illegal immigrants. (Photo by Mark Wilson/Getty Images)

A widespread sentiment among more extreme conservatives -- including a surprising number of prominent Republican candidates, former candidates, office holders, and former office holders -- is that the 17th Amendment should be repealed. That Amendment, ratified in 1913, changed the way of selecting United States senators. It empowered a state's voters and took the power of selection away from legislatures.

Those advocating repeal no doubt are a minority among Republicans, but they are significant, and are more numerous than one might imagine. They include, among others, Senators Mike Lee of Utah, Jeff Flake of Arizona, and Ted Cruz of Texas (who said that before the 17th Amendment, politicians were less likely to break into your home and steal your television--literally true, of course, because televisions before 1914 were somewhat scarce). Many others are on the list, such as former governors Mike Huckabee of Arkansas, and Rick Perry of Texas; judicial ideologues including U. S. Circuit Judge Jay Bybee, and the late conservative icon Supreme Court Associate Justice Antonin Scalia.

Meetings of political scientists often feature panels on "federalism." These are likely to consist largely (almost entirely, in fact) of bright young ideologues who -- fervently, and oh so earnestly -- take it for granted that the 17th Amendment dealt such a deathblow that federalism no longer exists.

A number of hardcore ideological scholars and journalists back the effort as well. One of those journalists (not scholars) is the one who appears to be the Washington Post's "Columnist in Charge of Silly Ideas," George Will.

Will has written that with legislative choice, America thrived, and the Senate had the "Great Triumvirate," Henry Clay, Daniel Webster, and John C. Calhoun. He says that under direct election, by contrast, voters elected the ineffable Joseph R. McCarthy.

Ignoring whether the arch racist, advocate of slavery as a "positive good," and secessionist Calhoun was better than the red-baiting McCarthy, a closer look demonstrates that the old system also chose Senator Simon Cameron, who is famed for the supposed comment that "an honest politician is the one who when bought, stays bought," while the current system brought to the Senate such outstanding figures as William Fulbright, Lyndon Johnson, Edward Kennedy, and (if you will) Richard Russell.

The able leader Henry Cabot Lodge was chosen under both systems, as was the foul-mouthed racist demagogue, Pitchfork Ben Tillman. Both systems have sent terrible people to the Senate, and excellent ones.

The conservative Ralph Rossum, a capable scholar, studied the issue in his impressive 2001 work, Federalism: the Supreme Court, and the Seventeenth Amendment. He argues that federalism has declined, but is less successful in demonstrating that the 17th Amendment was the cause.

A quick look at the argument of the "repealers" that the 17th Amendment took from the states the power to choose senators reveals that it did no such thing. A state is more than its legislature. Voters, choosing senators by state, express the state's will at least as fully as legislatures did.

Every state still has two senators, maintaining equality of states in the Senate. Legislatures never had the ability to control the votes of U.S. senators, and always failed in the rare instances in which they attempted it. Nor did they have the power to instruct senators or to recall senators who violated their "orders." As a matter of fact, the Constitutional Convention explicitly rejected state control in favor of "per capita" voting by senators, and it has never been extraordinary for a state's two senators to cast different votes.

The founders knew that majorities in legislatures would shift, that they might differ between houses, and that a state's senators would often vote differently from one another. There is no less incentive now for a senator to vote "in the interests of the state" than there ever was. Thus, the argument from federalism is bogus.

It should also be noted, that it was state legislatures that had chosen every senator who voted to propose the 17th Amendment. It was also state legislatures themselves who voted to ratify it. In fact legislatures in 41 of the 48 states decided to ratify the Amendment, far more than the required three-fourths of the total.

What, then, is the real motivation behind the demand for repeal, when its likelihood of passage is so remote? There certainly is no outcry from the people of the United States demanding a measure that would strip them of their votes for their senators. In all probability, the fundamental motivation that masks itself as an effort to restore a vanished federal system is actually a covert grab for power.

Consider two things: first, conservatives tend to believe, probably correctly, that large voter turnouts are detrimental to their interests; second, it is possible to gerrymander a state to create districts that defeat majorities, but it is impossible to gerrymander a whole state. Thus, if there were no 17th Amendment, conservatives believe that they might be able to control the selection of U.S. senators even against majority preference. Long-term demographic trends are opposed to them and their ideology, so they desperately try anything they can think of to retain minority power.

They increase obstacles to voting across the board. Whenever possible, they even deny the vote to as many people as possible. They are notorious in their attempts to restrict citizenship to keep the electorate as small as they can. They treat elites ever more favorably, and now, however much it may simply be grasping at straws, they seek to return selection of senators to state legislatures. Their motivation is therefore less related to federalism, than to power.