REPEAL THE 17TH!
In the wake of the passage of President Obama’s health care “reform” bill, many people have been discussing nullification – the act of a state “nullifying,” or declaring null and void, an unconstitutional federal law within the borders of that state. For reasons that I will explore in a future article, nullification is clearly a constitutional response by states to federal overreaching. But nullification has one very large problem – its inherently a reactive policy. Rather than proactively halting an overly-zealous federal government before it acts, nullification seeks to undo damage that has already been done.
Wouldn’t it be better to prevent the damage rather than react to it? As the old saying goes, “an ounce of prevention is worth a pound of cure.” Nullification is the “cure.” A means of “prevention” is the immediate repeal of the 17th Amendment, the amendment which gave the people the direct right to elect Senators.
As the Framers originally drafted the Constitution, senators were not directly elected by the people. Article I, Section 3 of the Constitution provided:
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
Election of Senators was the job of the state governments. In other words, the Senate was the part of the federal government in which the states were represented as states. In Federalist 62, James Madison opined on the rationale for placing Senatorial election in the hands of the states:
It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.
In other words, the Senate was designed to give the states a seat at the federal table. In this way, the states could look after their own prerogatives and interests or, in Madison’s words, could “secure the[ir] authority.”
Let’s look at this a different way. Under the Constitution as originally written, the three “political” bodies in the federal government – the House of Representatives, the Senate, and the President – were all beholden to different constituencies and power bases. The House of Representatives was the “people’s house.” Every member of the House was (and still is) directly elected by the people in their district. The House, then, was designed to be beholden to the popular whims and to represent the voice of popular majorities. The Senate was the “states’ house.” In representing the interests of the state governments, the Senate was not beholden to the people or to popular pressure. Indeed, most states directed their senators in terms of how they were to vote on particular bills. As originally intended, therefore, for a bill to pass Congress, it had to meet the approval of both the people (the House) and the states (the Senate). Then, the bill had to be approved by the President, an official who has no permanent constituency at all and is instead elected by the Electoral College, a body which exists only temporarily to elect the President and Vice President and then vanishes for four years. Only if a bill was acceptable to three different bodies with three separate constituencies did it become law.
In 1913, all of this changed. The 17th Amendment reads:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
The 17th Amendment was the death knell for federalism and states’ rights. By stripping the states (as political institutions) of representation in the federal government, the states have lost their right to participate in the decision making in Washington. Now, both the House and the Senate represent the people directly. Many people like this development because it is more “democratic.” But we are not, and have never been, a democracy. The Founders understood that “democracy” is nothing more than mob rule and that an unrestrained majority of people can be just as dangerous as a king. The effect is called the “tyranny of the majority,” and allowing the people to elect both the House and the Senate makes it possible. No longer must bills be approved by the states – if popular whims demand it, it will be done. The effects? Well, you be the judge. The USA Patriot Act? Tyranny of the majority, passed because a majority panicked at the thought of terrorism and signed away many of their basic rights to Washington. The economic stimulus bills? Tyranny of the majority, as the people panicked and bought into predictions that the whole economy would collapse unless they allowed Washington to essentially purchase many private companies which were labeled “too big to fail.” A majority liked these laws, and so they happened, the consequences and the rights of minorities be damned.
As night must follow day, the federal government has grown exponentially since 1913 and the states, once the political institutions that most affected everyday life, have devolved into little more than boundaries on a map with the “power” to issue drivers’ licenses.
The 17th Amendment has, in short, been a disaster for the proper relationship between the states and the federal government. But have you ever stopped to think that it is also a bunch of nonsense? The old system made perfect sense. I (and you) had one representative in Washington. Because we are a “representative” government, the vote of my Representative is a proxy for my vote and the vote of all of his constituents. In other words, when Congressman Tim Murphy (R-PA) votes “yea,” I and the other 650,000 or so of Congressman Murphy’s constituents vote “yea” by proxy. Before the 17th Amendment, when Pennsylvania’s Senators voted “yea,” the Commonwealth of Pennsylvania voted “yea” by proxy. In addition, the Commonwealth, like all the other states, had two senators representing it, reflecting on the equality of each state as a political institution.
Consider the “new” way. I now have three representatives in Washington – Congressman Murphy and Senators Robert Casey, Jr. and Arlen Specter. What if Congressman Murphy and Senator Casey vote “yea” and Senator Specter votes “nay?” I, by proxy, have voted “yea” twice and “nay” once. So has everyone in Congressman Murphy’s district. Indeed, because Senators Casey and Specter represent all 12 million people in the Commonwealth, all of us have voted both “yea” and “nay” simultaneously. In other words, the 17th Amendment has perverted the workings of government and turned us into a Commonwealth of schizophrenics. How can you possibly have three people representing you and constantly voting different ways? It’s as if I was a shareholder in a corporation and could give my proxy to two or three different people when it came time to elect a board of directors. And we still have two senators from each state, but now they represent the people, of which California has 37 million and Wyoming about 500,000. California and Wyoming are equal as states, but to say that 37 million people get the same representation as 500,000 is ludicrous. It’s bizarre. It’s nonsense. It’s our federal government.
The 17th Amendment has created nothing but nonsense and bad results. Let’s give the states their voice back in Washington so they can prevent an overly-expansive federal government before it materializes. Let’s end the bizarre concept of each person having three representatives. Let’s repeal the 17th Amendment.
Andy Quesnelle spent most of his early childhood in Cincinnati, Ohio and moved to Pittsburgh, Pennsylvania in 1992. He has lived in Pittsburgh ever since, except for the 7-year period during which he was in college and law school. He graduated from the University of Michigan in 2003 with a B.A. in History and Political Science. His primary areas of concentration were Colonial American History, 20th Century U.S. History, and American politics and government. He received his J.D. from Villanova University School of Law in 2006.
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