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This is the second of two articles on the expansion of the federal government powers as a result of the enactment of the Seventeenth Amendment.

The Seventeenth Amendment

But even before the Supreme Court changed course on the meaning of the Commerce Clause, the people had begun to transfer power from state governments to the federal government. In 1913 the ratification of the Seventeenth Amendment altered the vertical system of governmental checks and balances by providing for the direct election of the Senate. The 17th Amendment was passed for a number of reasons which are laid out in great depth by (Hoebeke). I don’t know enough about the issue to expound in detail on its enactment. I will summarize however.

One reason for the enactment of the Seventeenth Amendment was procedural. Under the existing system there were frequent deadlocks in the selection of a senator by state legislatures. This deadlock would cause the state to go without representation during the impasse.

But the Seventeenth Amendment was also the product of the Progressive Era which also gave us the Sixteenth Amendment (Income Tax), the Eighteenth Amendment (Prohibition) and the Nineteenth Amendment (Women’s Suffrage).

Progressives believed that the Seventeenth Amendment would help to clean up politics and reduce corruption. “Now, after the most protracted political battle in that usually bloodless revolution historians refer to as the Progressive Era, Secretary Bryan put his seal upon the reform that, in the expectations of those who had labored for it, would end the dominance of party “bosses” and the state “machines,” stamp out the undue influence of special interests in the Senate, make it more responsive to the will of the people, and of course, eliminate, or greatly reduce, the execrable practice of spending large sums of money to get elected.” (Hoebeke) I’ll leave you to form your own opinions about how well the Seventeenth Amendment has achieved the Progressives’ goals regarding corruption and the role of money in politics. I want to keep this article focused on the effects of the Seventeenth Amendment as a populist revolt against the representative government structure, and thus the checks and balances, instituted by the founding fathers.

If Hoebeke is correct then even prior to the enactment of the Seventeenth Amendment the primary system for designating party candidates had obliterated the original Senatorial election process set up in the Constitution. Senatorial candidates were selected prior to the election of legislators. The state legislative election thus became a process of electing legislators who supported a particular Senatorial candidate. “And while Americans are likely never to forget the Lincoln-Douglas contest of 1858, they are almost certainly unaware that the most famous debates in the history of Senate campaigns were entirely against the spirit of original intent, reducing the Illinois legislature to a mere registering body for the popular choice of senators.” Hoebeke.

The Effect of the Seventeenth Amendment

Sara Brandes Cook’s research at the University of Nebraska has revealed that the Seventeenth Amendment resulted in “senators who had less family ties to Congress, were more likely to have been born in the state they represented, were more likely to have attended an Ivy League college, and were more likely to have had a higher level of prior governmental service.” More importantly, “the post-amendment Senate has more closely matched the House in terms of partisan composition.”

In other words, prior to the Seventeenth Amendment the House and the Senate, originally designed to represent different constituencies, may actually have effectuated that purpose. Separate constituencies represent different interests. As Madison argued in Federalist No. 10, “extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.” As Madison saw it, there are two ways to curb factions: removing the causes and controlling its effects. Removing the causes is determined to be a cure worse than the disease. Removing liberty results in a situation which is more harmful than any faction. So how do you control the effects of a faction? The Constitution did this by creating a system in which competing factions fight amongst themselves for power, and no permanent majority is ever achieved.

By providing for the popular election of Senators, the Seventeenth Amendment paved the road for the election of a Senate and a House with similar compositions and similar representation. This effectively created a permanent majority in favor of federal government over the States.

The slow expansion of the federal government has absolutely been a net positive for this country. During the twentieth century the federal government has slowly but surely become the most important instigator of social change and stability in our society. Whether its Social Security, Medicare, securities laws, civil rights legislation, the environment, the war on poverty, education reform, drinking laws, drug wars, a superior court system, welfare reform, or any number of other things, the federal government now reigns supreme. Sure, over the last few decades small government types haves attempted to partially roll this back through the distribution of block grants to the States. But in reality, doesn’t this just institutionalize the power of the federal government? Doesn’t it just make the governments of each State a pawn of the federal government?

I’ll repeat. The slow expansion of the federal government has absolutely been a net positive. Its amazing how we now call upon Washington, D.C. to set policy, to formulate debate, to right the wrongs of the world. Its not just Americans that look to D.C. either. Regardless of the credibility we’ve lost over the last few years, the rest of the world still looks to Washington, D.C. as a city on a hill. The expansion of the federal government and the uniformity of support for federal policies makes the federal government powerful in a way that the European Union is still far away from being.

Repeal the Seventeenth Amendment

Why then would we want to change anything? Why not leave well enough alone? I will put forth three reasons.

First, to quote Thomas Jefferson, “a little revolution now and then is a good thing” (I’m omitting the second part about the tree of liberty being refreshed from time to time with the blood of patriots and tyrants). I am not naive enough to suggest that repealing the Seventeenth Amendment would somehow make the Senate immune from the influence of lobbyists. What I am suggesting is that if you change the rules of the game then at least for a little while you may give an advantage to under-represented interests. Eventually the people who play the game will learn the new rules and you’ll end up back where you started. Before people learn how to “play” the new system however, perhaps some progress could be made.

By way of analogy. Politics in Washington right now is like playing a game of Team Crazy King in Halo. For the uninitiated, Halo is your standard first person shooter. The goal of Team Crazy King is to be the only person standing within a designated square in the game (the “Hill”) for a certain amount of time. Essentially its just a video game version of King of the Hill. As you attempt to be King of the Hill, other people are trying to remove you from the Hill by killing you. True to life, good players are able to kill the other players more often than they die and thus end up on the Hill longer. As an attempt to level the playing field, the game periodically and randomly changes the location of the Hill without warning. For a few seconds after the Hill change, the advantage of the superior players is negated while everybody searches for the new Hill. Eventually, the new location of the Hill is found by everyone and the superior player takes control of the Hill. Ultimately, changing the location of the Hill is unlikely to change the outcome of the game. It does however serve to negate a little bit of the advantage of the people that play the game better than others.

Second, to quote James Madison, “Before taking effect, legislation would have to be ratified by two independent power sources: the people’s representatives in the House and the state legislatures’ agents in the Senate.” Again, I am not so naive as to suggest that just because the Founding Fathers thought that something was a good idea that it should remain that way. There is nothing to say that they were correct in the first place. They were also responsible for the Articles of Confederation. In any event, the world has changed mightily in 218 years.

On the other hand, I assure you that the Founding Fathers thought about this matter far longer and far deeper than you or I. One can only imagine the number of hours that Madison and Jefferson sat about, drinking beer and discussing the best forms of government. What they thought should at least weigh on the question.

Finally, to quote Louis Brandeis,”It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Over the last hundred years we have moved away from the idea of the States as laboratories of democracy. This is understandable if somewhat unfortunate. Through the years the States as laboratories have cooked up some distasteful things. The federal government has been a force for positive change and unification during the bulk of the 20th century, shutting down the worst of the laboratories.

With success comes hubris however. Every success, or in the case of government every action that is not a complete failure, causes the federal government to pick the next problem they need to solve. Every new problem results in the expansion of the federal government. I don’t pretend to know where to draw the line when it comes to federal/state boundaries. Without the Seventeenth Amendment I would have no need for an opinion. My state legislator would be responsible for reigning in the Senate, not me. If a state legislature felt that a problem is best solved by the federal government it could allow that. Not the other way around.

Today, the balance of power between the State and Federal governments are out of whack. Lopez notwithstanding, the Supreme Court long ago abandoned stepping into that fight. Without a Senate accountable to state legislatures, the federal government will define its mandate as it sees fit. This has been acceptable for the last hundred years or more. Most of the issues being dealt with were issues where there were clear advantages or necessities to having federal intervention. Civil Rights. Environmental Protection. Securities Laws. Perhaps however, we are now reaching a point where it is not clear whether an issue is federal or state. Education. Marriage. Driver’s licenses. If there is no body capable of defending the turf of the states, they will no doubt cede their territory to the federal government. Whether that is in our best interest or not.

Articles In This Series:
Part One: Vertical Checks and Balances
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