A Senate of the States – The 17th Amendment Part II

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Subtitle: Progressives Blow Up the Framers’ Constitution.

There is no causation or correlation between majoritarian rule and free government.1 Our Framers wisely limited the democratic element to just one half of one of the three branches of government. The House of Representatives (house) satisfies the Founders self-evident truth that just governments derive their powers from the consent of the governed.

The previous squibs in this series illustrated two recurring themes surrounding the senate debates at the 1787 federal convention. First, the senate should counter the democratic excesses of the people in the house. In Madison’s words, the senate must be structured to reflect “more coolness” of decision and to “render (the houses of the legislature) by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society will admit.” Second, the senate should serve as a check on the inexorable impulse of every government to accretion of power. Federalism, the vertical division of powers, was to the states as the horizontal separation of powers was for the three great horizontal departments: an assurance of non-encroachment.2 The Framers’ system of indirect election promoted the harmonization of state interests in national issues and congressional handling of them.

In opposition to the Framers, late 19th century progressives promoted a new purpose, and new foundation for the senate. Rather than block the will of the people, the new senate should facilitate their will. To facilitate their will, it follows that senators must, like representatives, stand for popular election. Indeed. In 1891, Senator David Turpie (D-IN), said that direct election, “would serve the needs, wants, aims, and aspirations of the masses of men in our communities to be more faithfully reflected, more clearly imaged forth in the laws of the country and administration.”3

Self-interest led the house to support the 17th Amendment (17A). Popularly elected senators represented the same constituency (albeit more numerous) as popularly elected representatives. Through their senators, pre-17A states often did their duty and blocked populist proposals from the house. Without the influence of state legislatures, the house stood to gain power in congress.4

Few voices advised caution, that despite the progressives’ propaganda regarding corruption, the senate still served its Constitutional and proper purpose, to temper and cool wild proposals from the house, protect the states from federal encroachment, and provide wise counsel and circumspection of the president’s nominees and proposed treaties.

In an 1893 address, senator George Hoar (R-MA) itemized ten reasons to reject a resolution from the house to amend the Constitution.5 Among them:

• Direct elections are susceptible to vote fraud, fraudulent naturalization, fraudulent residences, forged returns, intimidation, and mob violence.
• Compared to corruption in legislative elections, expect far worse in party conventions.
• Partisanship, rather than the interests of the states, will determine popular elections.
• Once the Constitution provided for direct election of senators, expect similar movements to elect the President.
• The senate wasn’t isolated from the people. Over its hundred-year history, it initiated many important and beneficial legislative acts.

One senator wrote, “it may seem incredible that what seemed to the Framers the obvious and crucial anti-centralizing function of indirect election should pass almost unnoticed.”6

In 1911, former Secretary of War, and of State, senator Elihu Root, delivered an eloquent and thoughtful defense of indirect election. Our Constitution sought to “insure domestic tranquility.” Stability in government was, said Root, “was a matter of vital concern.” First, he encouraged simple adjustments to the 1866 law that caused electoral deadlocks in state legislatures. Expect destruction of state sovereignty if the nation abandons indirect elections: “Let me tell the gentlemen who are solicitous for the preservation of the sovereignty of their states that there is but one way in which they can preserve that sovereignty, and that is by repudiating absolutely and forever the fundamental doctrine on which this resolution proceeds.”7

Moreover, the 17A kicked in the teeth of current and future state legislators. Senator Root warned the 17A would rob them of “power, dignity, (and) consequence” and lead to less capable and trustworthy men. You can never develop competent and trusted bodies of public servants by expressing distrust of them, by taking away their power. Once state legislatures are perceived as untrustworthy, “the tide that now sets toward the federal government will swell in volume and power.”8 With state legislatures removed from the process, “the time will come when the government of the United States will be driven to the exercise of more arbitrary and unconsidered power, will be driven to greater concentration, will be driven to extend its functions into the internal affairs of the states.”9

In the next squib to this series, we’ll look at answers to the questions:

• What was the 17th Amendment supposed to do?
• Did the 17th Amendment do what it was supposed to do?
• What hath the 17th Amendment wrought?

We are the many; our oppressors are the few. Government is the playground of politicians, but the Constitution is ours. Be proactive. Restore the American Tradition. Join Convention of States.

1. Free Government is that happy condition wherein government respects and protects the unalienable, Natural Rights of the nation, and makes no law without its consent. This definition is, of course, derived directly from our Declaration of Independence.
2. Bybee, J. S. (1997). Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment. Scholarly Commons @ UNLV Law, 509. The Federalist #51.
3. Rossum, R. A. (2001). Federalism, the Supreme Court, and the 17th Amendment – The Irony of Constitutional Democracy. Lanham, MD: Lexington Books. 199.
4. Bybee, 537.
5. Rossum, 199-200.
6. Ibid., 230.
7. Ibid., 209.
8. Ibid., 209-210.
9. Ibid., 210.