Essays from an Old Whig

The formation of a new conservative focus group, the Patrick Henry Caucus, causes me to repost this article, originally written in July of 2004. I think it is important to repost now because of the increasing interest in, and focus on, States’ Rights. For example, Montana has recently passed legislation that would bar the Federal Government from regulating firearms manufactured and kept within Montana’s borders; Utah is considering similar legislation. Texas is is not only working on firearms legislation, but also a bill that would declare Texas a sovereign entity in relation to the Federal government.

All of these are great ideas but, so far, I have not heard anyone proposing the one thing that is essential to any States’ Rights movement–the restoration of representation for the States in the Senate. The repeal of the 17th Amendment will return the Constitution to it’s original form where States’ Rights are recognized at the national level, and I will be proposing such an initiative at the Patrick Henry Caucus formation meeting this Thursday.

The Founders sought to create a system of government based upon checks and balances on power. Their efforts have suffered many attacks in the succeeding 220 years since the adoption of the Constitution. But, in my opinion, none have been so effective at destroying what they sought to accomplish as the 17th Amendment, which 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.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The Constitution originally laid out a very simple, but effective, way to separate the powers of government in the Legislature. They separated the Legislature into two houses–one elected by the people and one appointed by the Legislatures of the several States. Article I, Section 3, Clause 1 reads:

“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.”

Each senator was to be appointed to that position in the national government. This is a very important point that should not be overlooked or misinterpreted. Government appointments are oftentimes construed as a form of corruption. The Founders didn’t think so. In fact, the Senate was to be appointed for the very purpose of preventing corruption. Allow me an explanation.

The members of the House of Representatives are elected, according to the Constitution, by popular vote every two years. This puts them in constant need to be responsive to their constituents if they want to get re-elected. If they aren’t doing what their constituents want, they shouldn’t be re-elected. The short time frame also helps to minimize the damage that could be done to our form of limited government. The combination of short terms, and direct accountability to the people, was intended to create an environment hostile to the creation of Legislation. Congress wasn’t created to “do something” because the Founder’s didn’t want a lot of laws being passed by Congress. In the Federalist #62, Madison and Hamilton argue,

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.”

The Senate, on the other hand, was intended to be a deliberative body. The six-year terms would give enough time to accomplish something, while still short enough to keep them in mindfulness of their purpose in being elected. Additionally, because the Senate was appointed by the voice of the Legislatures of the several States, it was hoped the influence of party (or faction) would not become an issue. The current methods used by Senators to get re-elected, i.e. gathering campaign contributions from special interests, would not have been possible previous to the ratification of the 17th Amendment. The McCain-Feingold Campaign Finance Reform Act would be unnecessary under the conditions that obtained under the original program laid out in the Constitution, as the effects the Act was intended to combat would be very difficult to achieve.

The appointment of Senators by the States was meant to assure that the interests of the States were represented in the federal government, a very sticky point for many of the convention delegates. During the New York ratifying convention, Alexander Hamilton sought to comfort the skeptics of the Constitution by pointing out,

“When you take a view of all the circumstance which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be  a uniform attachment to the interests of their several states.”

Today, we see quite readily that the 17th Amendment has not improved upon that idea.

An example of how the system has been corrupted from its original purpose as a result of the 17th Amendment can be found by examining the campaign contributions of a certain Senator currently serving. Campaign finance records show that Chris Dodd, Democratic Senator from Connecticut, had only five (5) contributors from his home State in the last election. The vast majority of his campaign contributions came from special interests outside his home State. How can he claim to represent the State of Connecticut when he is beholden to other interests? The New Testament points out that “no man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.” The conflict that arises in someone trying to serve two masters was precisely why a system of checks and balances was put in place by the Founders, who understood it’s power as an effective hedge against corruption.

Another example is the case of the Federal Marriage Amendment, which failed by a vote of 50-48.  Some senators voted against the bill on the grounds that an Amendment would be unnecessary, and the decision should be best left to the States. That would be true if the composition of the Senate was still decided by the States. But the States are now subject to the whims of the federal courts, which will likely someday rule to force the states to recognize gay marriage against the will of the people of those States, because the States are left without representation in the Senate.

The appointment of Senators not only provided the States with representation at the Federal level, it also provided an effective check against the power of the popularly elected House of Representatives, and against the Presidency. This check was essential to preserve the Federalist character of the government established by the Founding Fathers.  The States were to act as a check and balance against encroachment by the Federal government, and to help curb the appetites of the People, which could lead to the country’s ruin; the Senate was the States’ first line of defense. Roger Sherman expressed as much in a letter to John Adams in July, 1789,

“The senators, being eligible by the legislatures of the several states, and dependent on them for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States.”

The Founders hoped that the appointment of Senators would prevent partisanship in Congress. George Washington, in his Farewell Address, said, “Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the Spirit of Party generally. . . . A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.” But, since the adoption of the 17th Amendment, the Senate has become increasingly partisan, especially in the last 20 years. When chosen by the several State Legislatures, the Senators would be two people thought to best represent the needs and views of the State regardless of party affiliation. An easy choice today would be one from the Republicans and one from the Democrats, thus providing equal representation for both major parties in the Senate. But if the Senate grew too partisan, the States could simply choose along different criteria. In the end, the state would choose it’s representation. Additionally, if a state had problems choosing senators, only that state, rather than the entire country, would suffer.

The 17th Amendment was adopted to supposedly streamline this portion of the Constitution. According to John MacMullin, the primary reason for ratification of the 17th Amendment was difficulties in the appointment process. He writes,

“The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power. The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator. When deadlocked, a state would go without representation in the Senate. For instance, in the very first Congress, the State of New York went without representation in the Senate for three months.”(emphasis in the original)

However, the procedural issue was one that could have been easily solved. The current contest between Democrat Al Franken and Republican Norm Coleman is evidence that ratifying the 17 Amendment did not have the desired effect after all. Minnesota may not have a sitting Senator at the moment, but judging from statements by the Founder’s, they didn’t believe that would pose too great a problem. The passage of the 17th Amendment was a shortsighted answer with long-term ramifications.

The consequences of the actions taken to “correct” this problem are manifold. The balance of power which once existed between the States and the Federal government was completely destroyed. The change from appointment by the States to popular election of Senators took our system of government further away from a Republic, and a long way towards a pure Democracy. In the view of the Founders, pure Democracy was to be strictly avoided. James Madison, in Federalist #10, writes, “…democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” What was intended to correct the problems of deadlocked state legislatures has created a national Legislature composed of elected officials more beholden to special interests (what James Madison referred to as factions), than to the people they were elected to represent. It would be in the nation’s best interest to have a few states occasionally experience temporary problems choosing their senators, than for the entire country to suffer under the tyrannies of special interests. What’s more, when weighing the temporary loss of a sitting Senator against the permanent, ongoing damage to the Republic brought about by the current “solution,” there is little question which is the better choice.

Arguments for repealing the 17th Amendment range from keeping the Constitution pure to solving the campaign finance problem. State representation at the federal level, one of the major checks on federal power, is now virtually non-existent. The Senate is divided sharply along party lines and, in its current character, does not represent the views of the majority of the states or of the people. A state-appointed Senate also would, in the best interests of the states they represent, shut down federal judicial usurpation of State authority. A popularly elected Senate, bought and paid for by special interests, will never accomplish these tasks.

The Patrick Henry Caucus is being formed in an effort reestablish the representation for the States in the National legislature. For nearly 100 years, the States have had no voice in Federal legislation, and we are now seeing the consequences of our shortsightedness. It is time to rectify that mistake. The Patrick Henry Caucus needs our support, but the movement will be short-lived if we do not remove the one great obstacle to our success. It is time to repeal the 17th Amendment.