A Senate of the States – The 17th Amendment

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Subtitle: Progressives Blow Up the Framers’ Constitution.

In continuance of the Senate of the States series, the next three squibs leave the Federal Convention and visit the decades leading to the destructive 17th Amendment (17A).

The 17A triggered a cascade of stunning downwind consequences, perhaps only second to the immediate post-Civil War amendments. As opposed to the 13th – 15th Amendments which reset society, the 17A reset our republican governing form. Overnight, the 17A transformed the Framers’ exquisite compound democratic/federal structure into a democratic form deadly to republics.1

Why the 17th Amendment? What enormous forces convinced the people, states, and congress to trade a proven, stable governing form for an unstable and dangerous system?

Perhaps from the moment New Hampshire, the ninth state, ratified the Constitution in June 1788 the freedom-enhancing lessons of indirect elections began to wane in our national psyche. Tocqueville wrote, ”Men living in democratic ages do not readily comprehend the utility of forms . . . (in fact,) they feel an instinctive contempt for them.” In 1838, Abraham Lincoln lamented diminishing appreciation of the principles and protections afforded in the Constitution.2

After the first congressional resolution (1826) to democratize senatorial elections, 187 similar resolutions followed over the next eighty-six years. Federalism, the concept of two governments sharing responsibility over the same geographic area, and made real by a senate appointed by state legislatures, was not only not an issue, proponents of direct elections studiously avoided it.3 Once the late 19th and early 20th century progressives took up the cause, the public soon embraced the notion that the solution to the ills of democracy was ever-more democracy.4

What were these perceived ills? In the decades following the Civil War, people gradually associated indirect election of senators with an outmoded, plutocratic Constitution. By contrast, many regarded direct election with reform, faith in the people, and progress.5 Progressives’ complaints fell into four broad categories: legislative deadlock, bribery/corruption, populism/progressivism, and political forces at the state level.

Legislative Deadlock. Pre-Civil War state legislatures used varied procedures to elect their senators. Thanks to party divisions, they occasionally failed to promptly replace outgoing senators. Yes, bloc-voting by political parties is not a recent development. In some, each house voted separately. In most, the legislatures met jointly and sometimes sent men who won a plurality, rather than a majority, of votes. To alleviate these difficulties, congress standardized senatorial elections in 1866. Under its Article I § 4 authority to prescribe “The Times, Places, and Manner of holding elections for Senators and Representatives,” the statute required the two houses of each legislature to meet in joint session on a specified day and to meet every day thereafter until they elected a senator. Congress demanded a majority vote; it would not seat those who won a plurality.6

Thanks in large part to the 1866 law, legislative deadlocks soared. The procedure set forth by congress consumed a great deal of legislative time in short (40 – 60 day) legislative sessions better spent on pressing state matters, and ironically served to rally direct election adherents. Between 1885 and 1913, this process left a total of fifteen empty senate seats.7

Bribery and Corruption. A second factor undermining support for indirect elections by state legislatures were scandals involving bribes to loosen the deadlocks attributable to the 1866 law. Prior to 1866, the senate investigated only one case of suspected bribery in the election of a senator. However, between 1866 and 1912, the senate investigated fourteen similar allegations.8 As for bribing sitting senators, the senate investigated ten cases of alleged bribery or corruption between 1857 and 1900, although in only three cases did a senate committee conclude that the charges had merit.9 In time, the “assumption of corruption” consumed early 20th century progressives as thoroughly as “assumption of Russian collusion” consumes them today.

Populism and Progressivism. These mass movements did the most, perhaps incalculable harm, to the intellectual and structural underpinnings of our Constitution. William Jennings Bryan led the late-19th century Populist Movement, which distrusted the power afforded to wealth. It took aim at the senate. The Progressive Movement grew out of populism; both advocated:

• An income tax.
• Direct election of senators.
• Free coinage of silver to encourage inflation.
• Government ownership of railroads and other large businesses.

As a senator, Bryan demagogued like no other. He argued that, “if the people of the United States have enough intelligence to choose their representatives in the state legislature, . . . they have enough intelligence to choose the men (to) represent them in the US Senate.” Going further, in a preview of the utter disdain the democrat party holds for our nation’s first principles, Senator David Turpie, D-IN, said that however valid the reasons might have been for the Framers’ structure and mode of electing senators, the people at the end of the 19th century were “a new people living and acting under an old system.”10

Political Forces at the State Level. Over time, opponents tagged the indirect election of senators with stalemate, corruption, plutocracy, and reaction. Electoral results merely reflected corrupt political party machinations driven by corporations. “Great corporations,” fumed Bryan, . . . “are able to compass the election for their tools and their agents through the instrumentality of Legislatures, as they could not if Senators were elected directly by the people.”11

Direct election of senators meant reform, integrity, democracy, and progress. The public demanded change. Between 1886 and 1912, various citizen groups sent hundreds of petitions to congress calling for direct election of senators. Even the states themselves joined in. Between 1874 and 1912 they sent 175 memorials urging direct election. In imitation of what state parties did to the electoral college, thirty-three states by 1912 had introduced a direct primary system to democratize the election of senators. While the outcomes of these party primaries were not binding on state legislators, the writing was on the wall for direct elections.12

In 1893, California was the first state to apply under Article V for a convention of the states to democratize the senate. Momentum accelerated after 1900, and by 1910, twenty-seven states had formally applied to congress. Feeling the heat from state legislatures and the House of Representatives, a formerly reluctant US Senate voted approval (64-24) of the 17th Amendment. On May 12th, 1912, the 17A was ready for state ratification, which occurred on April 8th, 1913.13

In Part II, we’ll examine a different sort of corruption, the deadly corruption of the essence and purpose of the senate which Progressives and Article V opponents ignore.

1. I leave it to others to expound on the 17A’s evil sibling, the 16th Amendment.
2. Direct Election of Senators and the Silent Artillery of Time.
3. Bybee, J. S. (1997). Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment. Scholarly Commons @ UNLV Law, 538.
4. Rossum, R. A. (2001). Federalism, the Supreme Court, and the 17th Amendment – The Irony of Constitutional Democracy. Lanham, MD: Lexington Books. 2, 181, 183.
5. Ibid., 182, 183.
6. An Act to Regulate the Times and Manner of Holding Elections for Senators in Congress. Rossum 185, 186.
7. Rossum 187-190.
8. Ibid., 190.
9. Bybee 539.
10. Rossum 191.
11. Bybee 539, 540.
12. Rossum 191, 192.
13. Ibid., 193, 194.