Repealing the 17th Amendment

The US Constitution established a unique form of government that accommodated the concerns of the people in general as well as the governments of the States that comprise the union. This was initially established by means of the Great Compromise, which formed a bicameral legislature featuring a House of Representative to represent the concerns of the people, and a Senate to address concerns of the States. The Senators were to be selected by the state legislators and represent their positions and concerns to the federal government.

That is, until the 17th Amendment was passed. Establishing the popular election of Senators, the 17th Amendment effectively ended the representation of State interests to the federal government, essentially establishing a second House of Representatives that held more power for longer than the first.

Well, there have been some arguments along the line that the 17th Amendment needs to be repealed, and the Tea Party is picking them up.

Todd Zywicki of the Volokh Conspiracy has penned an excellent article on this issue for the National Review Online.

Ratified in 1913, the Seventeenth Amendment replaced the election of U.S. senators by state legislators with the current system of direct election by the people. By securing the Seventeenth Amendment’s ratification, progressives dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.

The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty. To this end, the Framers provided that the power of various political actors would derive from different sources. While House members were to be elected directly by the people, the president would be elected by the Electoral College. The people would have no direct influence on the selection of judges, who would be nominated by the president and confirmed by the Senate to serve for life or “during good behavior.” And senators would be elected by state legislatures.


Election of senators by state legislatures was a cornerstone of two of the most important “auxiliary precautions”: federalism and the separation of powers. Absent some direct grant of federal influence to state governments, the latter would be in peril of being “swallowed up,” to use George Mason’s phrase. Even arch-centralizer Hamilton recognized that this institutional protection was necessary to safeguard state autonomy. In addition, the Senate was seen as a means of linking the state governments together with the federal one. Senators’ constituents would be state legislators rather than the people, and through their senators the states could influence federal legislation or even propose constitutional amendments under Article V of the Constitution.

The Seventeenth Amendment ended all that, bringing about the master-servant relationship between the federal and state governments that the original constitutional design sought to prevent. Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends — through such actions as “unfunded mandates,” laws requiring states to implement voter-registration policies that enable fraud (such as the “Motor Voter” law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions — would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.

Read the whole thing.

Damon Root at Reason Magazine has also noticed Zywicki’s article, and links to an earlier argument made against the 17th Amendment by Judge Andrew Napolitano. Zywicki further links to a video featuring Senator-Elect Mike Lee and Judge Napolitano discussing the issue.

Zywicki also addresses some responses and criticisms of his approach here.


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