Amendment Fetish: The Seventeenth Amendment

Adopted in 1913, the Seventeenth Amendment changed the way American choose their senators.  Until then, each state legislature selected that state’s two senators for six-year terms.  After 1913, the voters have chosen senators in elections.  Repeal of the Seventeenth Amendment is a centerpiece of the state’s rights push behind the Tea Party movement and its close relatives.  Several conservative state legislators and Senate candidates have joined the calls.  Even Supreme Court Justice Antonin Scalia has denounced the Seventeenth Amendment as “a bad idea.”

The rationale is simple.  If state legislatures choose a senator, then that senator will be even more responsive to the parochial interests of his or her state legislature. I balk at the threshold of this argument.  Senators and congressmen, in my experience, are wonderfully sensitive to the concerns of their constituents in their home states; should they not represent those constituents rather than some abstract notion of a state government?

Indeed, this particular repeal movement raises a fundamental question.  Is the United States not supposed to be a democratic nation?  Don’t we believe in the sovereignty of the people?

The repeal movement seems a particularly odd fit for the Tea party folks, who fret endlessly over the reductions in their liberties.  Is it not an increase in each citizen’s liberty to have the right to participate directly in the selection of senators?  Selection of senators by state legislatures was intended as a way to ensure that America’s elites would control the Senate, and to exclude the sweaty and untrustworthy masses from the process.

john_dickinson.jpgJohn Dickinson (pictured above), a delegate from Delaware to the 1787 Constitutional Convention, sponsored the provision for selection of senators by the state legislatures.  That provision, he explained, would make the Senate like the British House of Lords, ensuring that senators would be “distinguished characters, distinguished for their rank in life and their weight of property.”  Elbridge Gerry of Massachusetts endorsed Dickinson’s provision because it would be more “aristocratic” and would best protect “the commercial and monied interest.”  (June 7, 1787)  Is this what we want for the United States in 2011?

But the Seventeenth Amendment was not adopted solely because of a doctrinal preference for democracy over rule by narrow elites.  Rather, In the early twentieth century, the selection of senators by state legislatures had degenerated into endless political bickering and bribe-fests.

On thirteen occasions between 1871 and 1913, a state legislature adjourned rather than choose a senator.  The examples of political meltdown are bracing (these are drawn from papers by Prof. Wendy Schiller of Brown University and Prof. Charles Stewart III of MIT):

  • For two years (1903-05), Delaware had no representation in the U.S. Senate because that state’s legislature could not agree on who should be elected.
  • In a more routine delay, the Florida Legislature required 30 ballots over five weeks to choose a senator in 1891.
  • In 1896, the Kentucky legislature voted 51 times on choosing a senator over a two-month period, but failed to make a choice. The seat went vacant for another year.  Over two months in 1897, a special session of the legislature finally chose a senator after 60 more ballots.  Near the end of that special session, according to the Louisville Courier-Journal:

“There was not a score out of the 132 members at Saturday’s session who did not have one or two pistols concealed, to say nothing of knives and other weapons.”

  • The New York Legislature required more than 50 ballots over a two-month period to choose a senator in 1881.
  • In 1899, the Pennsylvania legislature cast more than 80 ballots over a three month period without actually choosing a senator.  The seat remained empty for the next two years.

The state legislative selection of senators also produced notorious incidents of corruption.  A Hearst publications writer, David Graham Phillips, denounced the process as hopelessly corrupt in a famous six-part series in 1906 titled, “The Treason of the Senate.”

The episode of corruption often credited with winning enactment of the 17th Amendment came in a 1909 Senate contest before the Illinois Legislature, which was won by William Lorimer.  Several legislators came forward afterwards and testified that they had sold their votes in the contest.  The U.S. Senate was so embarrassed that, after a lurid investigation of Illinois political practices, it refused to seat Lorimer.

Why would we want to revive such a discredited and flawed process?  Do we really think that we will have better outcomes now than the nation experienced in 1890 and 1900?  This quesiton is especially painful as our fractured and nasty politics of 2011 seems tragically to have turned murderous this past weekend, leaving Congresswoman Giffords in a Tucson ICU.

Repeal of the Seventeenth Amendment is a terrible idea. It is difficult to imagine that any intelligent politician will be willing to stand before a camera, or a room full of voters, and try to explain that it will be better to strip voters of their right to choose senators and to confide it to a group of anonymous state legislators in smoke-filled rooms.


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