The 17th Amendment Debate: Reclaiming State Sovereignty

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No issue was more important to the Framers of the U. S. Constitution than the balance of power between the states and the new federal government. This issue created the most heated debates during the entire convention, and if it hadn’t been for a compromise initiated by Roger Sherman, the convention would most likely have failed. Debates raged for weeks on this issue as plan after plan was submitted and then rejected. William Patterson proposed a unicameral legislature with each state having one vote. Charles Pinckney from South Carolina proposed a treaty among the states that included a bicameral legislature. Alexander Hamilton introduced a plan for a strong national government that would have abolished state sovereignty altogether. The Convention was absolutely deadlocked, and some delegates even left the Convention.

It was at this time that Benjamin Franklin rose and pleaded with the delegates to “…humbly implore the father of lights to illuminate [their] understanding….” Immediately after Franklin’s plea, George Washington adjourned the convention.

As the convention resumed three days later, a compromise began to take shape. A Grand Committee had been formed at the suggestion of Roger Sherman to try and work out the differences between the large and small states. The large states insisted that representation in the national legislature should be according to population. The small states adamantly refused this plan because it would destroy the equality of the states. In other words, the large states would always have more representation in congress than the smaller states.

Not long after Franklin’s plea, delegates from the larger states began to see the wisdom in representing both the people and the states in Congress. It was this very debate that ultimately led to a compromise which created an entirely new kind of government. This compromise created a lower house and an upper house. The lower house would represent the people in the several states according to population. In the upper house, each state would appoint two senators and each senator would have one vote.

After this compromise passed in general assembly, James Madison stood before the delegates and expressed his disappointment that the convention had chosen what, to him, seemed like an unjust system. However, he also recognized that:

“This great compromise has created a new kind of nation, one such as I had never considered. Its national government is strong and sovereign, but it has states which are also strong – separate states but a united people. It is neither man nor horse but, like the centaur, half of each. I don’t know whether such a creature can survive in the rough and tumble of the world, but I am willing to make the hazard. I am for the compromise. I am for the united states… of America.” (A More Perfect Union: America Becomes a Nation)

“A New Kind of Nation”

After the framers figured out how to constitutionally divide power horizontally (ie. The legislative, executive, and judicial branches of the national government), it seems that they literally stumbled upon a way to divide power vertically as well. The founders called this “new kind of nation”, Federalism.

The term "federalism" has its origins in the Latin word "foedus," which means "covenant" or "treaty." In ancient Rome, a "foedus" referred to a formal agreement or treaty between different states or political entities, typically involving mutual obligations or cooperation.

The concept of federalism, as a political philosophy or system of governance, is rooted in the idea of a central authority (such as a federal government) and subordinate political units (such as states or provinces) coming together in a cooperative relationship while retaining some degree of autonomy and sovereignty.

In the United States, federalism became a fundamental principle of the new government, which sought to strike a balance between a strong federal authority and the autonomy of individual states.

The Road to Popular Election of Senators

For the first one hundred years, federalism was the cornerstone of the new American system. However, powers were at play toward the end of the nineteenth century and the beginning of the twentieth, that began shifting political thought. Europeans were becoming disenchanted with the promises of Communism, and they sought refuge in the capitalistic ideals of America. Ironically, they carried with them certain aspects of Karl Marx's communist philosophies. The concept of a government-directed economy, as outlined by Marxism, collided directly with the laissez-faire principles of unfettered capitalism. This collision gave rise to a new, hybrid political philosophy that its advocates termed "Progressivism."

Progressivism, unlike pure Communism, did not advocate for government ownership of the means of production. Instead, it allowed individuals to own these means while granting government the authority to regulate their use for the collective benefit of society. It was within this era of progressive enthusiasm that the 17th amendment was born. This movement gained ground in response to deadlocks and disputes among state legislatures during Senate elections.

States like Oregon implemented measures to allow voters to express their senatorial preferences. This was an innovative approach that became known as the "Oregon Plan," and it contributed to the broader push for the 17th Amendment.

In 1906, a pivotal moment occurred when publisher William Randolph Hearst commissioned novelist David Graham Phillips to write articles titled "The Treason of the Senate," portraying senators as influenced by industrialists and financiers, which resonated with the public and increased support for reform.

In 1911, Senator Joseph Bristow of Kansas introduced a resolution to amend the Constitution for direct election of senators. This resolution gained support from other senators, including William Borah of Idaho who had championed the cause of direct election for years. By 1912, around 29 states were already electing U.S. senators through direct elections, making popularly elected senators strong advocates for the cause.

The amendment passed the Senate in 1911, moved to the House of Representatives, and then to the states for ratification. Connecticut's approval in 1913 provided the 17th Amendment with the necessary majority for ratification. This amendment replaced the original phrasing in the Constitution, allowing senators to be "elected by the people thereof." It also permitted the appointment of senators by governors in case of vacancies until a general election could be held.

Results of the 17^th Amendment

The founders knew first-hand what it was like for a government thousands of miles away to create laws that they had no say in. This is why state representation in the U.S. Congress was such a big deal to them. The 17th amendment literally kicked the state legislatures out of the federal lawmaking process and restricted their input in several other important ways.  Here are just a few results of the 17th amendment.

• Erosion of State Sovereignty: Prior to the 17th Amendment, senators were elected by the state legislatures, which meant that they represented the interests of the states in the federal government. By making senators directly accountable to the people, the states lost an important check on federal authority, undermining the principles of federalism.
• Presidential Appointments: The President is mandated to seek the “advice and consent” of the Senate when appointing ambassadors, public ministers, consuls, Supreme Court judges, and other federal officers. In addition, the president is under the same obligation when making international treaties and trade agreements. The states undeniably hold a vested interest in each of these important areas. Without this vital check, the original 13 states would never have ratified the Constitution. Consider how the composition of both the Cabinet and the federal bench might have evolved if all nominees were required to secure the approval of the states.
• Less accountability: While the 17th amendment was promoted as a means to enhance democracy by bringing senators closer to the people, it had the unintended consequence of diminishing accountability. The Senate was never designed to function as a carbon copy of the House of Representatives. However, with the passage of the 17th amendment, the Senate's composition remained unchanged, resulting in U.S. Senators representing significantly larger constituencies than their counterparts in the House. To illustrate this point, as of 2022, each member of the House of Representatives is accountable to roughly 747,000 people. In contrast, two California senators are tasked with representing a staggering 39 million individuals. This vast and diverse demographic makes it exceedingly challenging for senators to effectively serve such a multitude of constituents, ultimately reducing their accountability to both State Legislatures and the people they represent.
• Campaign Financing: Still another reason to repeal the 17th Amendment is the effect it would have on campaign financing. Were Senators elected by state legislatures, there would be no need for Senators to collect and spend hundreds of millions of dollars for campaign advertising. In the 2022 midterms, candidates for the U.S. Senate collected close to 1 Billion dollars (according to data from federal campaign finance filings analyzed by OpenSecrets). Were Senators elected by state legislatures, candidates would need to spend very little to get acquainted with their electors. More importantly, once a Senator is elected by the state legislature, he or she would be able to concentrate on duties and not fundraising.
• Federal Legislation: Perhaps most important, the Founders intended for the states to approve all federal legislation. The people's House of Representatives was designated to originate all legislation that required the appropriation of taxpayer dollars, but the Senate—appointed by state legislatures—had to approve all proposals before they became law.
• Impeachment: Finally, the Founders originally intended for state government representatives to have the role of judging all impeachment matters concerning the federal government. It's a reasonable expectation that state government representatives would bring a higher degree of objectivity to the process when evaluating the actions of federal government officials. Unfortunately, this role was taken away from the states as well.

Summary

In summary, the debate surrounding the repeal of the 17th Amendment raises important questions about the balance of power in the United States. While the amendment brought about a direct popular election of senators, which may seem more “democratic”, it also significantly weakened the sovereignty of the states and practically destroyed the concept of federalism. Policymakers and citizens should carefully consider the impact this amendment has had on state sovereignty, and the vital role the states played in the founders’ federal system.