a case for federalism and the repeal of the 17th amendment

8/3/2019 A Case for Federalism and the Repeal of the 17th Amendment

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Elliot Young

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POLS 151-04

A Case for the Rediscovery of Federalism:

Why the Senate Should Not Directly Represent the People

As debates are fashioned, those concerning the Constitution of the United States are

among the most heated and most interesting. The composition of the two bodies making up the

US House of Representatives and the Senate was a point of contention bitterly fought over at the

Constitutional Convention in Philadelphia. At the convention, it was finally decided that the

House would have proportional representation according to each states population, and the

Senate would have equal representation from each state, and be composed of two representatives

from each state, duly elected by the state legislature. The modern debate revolves around

whether senators should be popularly elected by the people of the state, or directly by the votes

of the state legislature. At the time of its creation, the latter was the case, and not until the

Progressive movement did this system of Federalism come under attack. Since the addition of

the Seventeenth Amendment to the US Constitution in 1913, senators have been popularly

elected by the people of each state. However, in accordance with Article V of the Constitution,

each state still has equal representation in the Senate. By itself, the amendment seems to be a

moderate reform towards greater democracy, however, considering the intentions of the

Founders, it is inherently a usurpation of the power of the states. When senators had been elected

by the state legislatures, the interests of the states as a whole were represented because each

senator was held responsible for his actions by his state legislature, which would make voting to

remove state powers unproductive if he wanted to be reelected. To balance the power of the

states and the people, through the House of Representatives, the interests of the people as a

whole were preserved. The founders intentions in the creation of this type of government were

to preserve the rights and interests of the states and the people, where one could not easily

overrule the other, where a willful majority in the House would be checked by the slower, more


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deliberate actions of the Senate. Since the ratification of the Seventeenth Amendment, the rights

of the states that preserved Federalism and a republican style of government have been usurped

to favor a majoritarian, democratic style of government. In the mind of the Founders, state

powers were on a tripartite plane consisting of the aforementioned, the powers of the people, and

the powers of the national government. Whenever the rights of the people are infringed, the

floodgates of Constitutional controversy burst open, but when it comes to the crafty murder of

our Federalism, silence reigns. It is for this reason that the issue of Senate representation

warrants special consideration.

The first major issue concerning whether the Senate should represent the people is the

discord between the facts that in one sense, it already does, and in another, if the intention in the

progressive reform was for the Senate to represent the ideas of the people, it does so unequally.

In the first sense, the Senate represents the ideas of the people because its members are popularly

elected in each state. In the other sense, even if the Senate is popularly elected, population

disparities among the states mean that one Senators vote that may represent eight million people

can negate the vote of a Senator who may represent two million people. In a sense, this means

that the votes of people in high population states are worth less than those in low population

states. If the goal of democratization of Senate was to put the power in the hands of the people,

the Seventeenth Amendment and other progressive actions were a spectacular failure. The second

major issue in this debate is that knowing the facts in issue one, the only way to make the Senate

truly represent the people is to remove the equal representation clause of Article V, but this

presents an issue in itself. Article V explicitly states that no amendment may remove the equal

protection clause without the consent of each state, which would prove fruitless to attempt to

procure, and so we are clearly left with blessed few routes to our goal of democratizing the


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Senate. Even if it were possible, in the words of founder James Madison, Yet however requisite

a sense of national character may be, it is evident that it can never be sufficiently possessed by a

numerous and changeable body. It can only be found in a number so small, that a sensible degree

of the praise and blame of public measures may be the portion of each individual.1 Without

completely scrapping the Constitution, this goal could only be achieved through the obfuscation

of the written supreme law, and because is not grounded in supreme written law, it would be

subject to the interpretations of future generations, and not be productive for long-term stability

and lasting reform.

With the relative impossibility of democratizing the Senate now established, the issue of

whether the Senate should represent the people can be further analyzed. In discussing this

issue, both modern politics and the original intent of the Founders must be carefully considered.

When information of original intent exists, it is much more valuable to finding the true meaning

of our supreme law. The Founders werent clairvoyant by any means, but they did have a fairly

good grasp of what constituted human nature. Knowing this, they devised the cleverly worded

Constitution to be a document for the ages, and not simply something to be reinterpreted with

each generation. They knew how important stability is for the preservation of good, limited

government and that given the opportunity, a governing document left open to interpretation will

be exploited by those in power to the furtherance of that power, and is simply a ticking time

bomb, that when set off would cause the destruction of the very liberties they fought and died for.

As such, the original intent of the Founders is necessarily one in the same with the text of the

Constitution. Separating the two devoids the Constitution of its complete and original purpose.

The Federalist Papers are largely a collection of the opinions and intentions of those who

framed the Constitution, and in this issue, they explicitly provide the Founders intentions. In

1 Federalist 63: The Federalist Papers, by James Madison


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Federalist 62, James Madison, the father of the Constitution, 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.2

Concerning original intent, the Founders, the public, and the father of our Constitution agreed

on the original method of constituting the Senate. In modern terms, the message ofFederalist

62 is that, The House represents the people directly, but the union needs additional checks and

balances, and buffers against corruption. The Senate, with its longer terms and direct election by

state legislatures, wont be as sensitive to the vacillating emotions of the electorate and will be a

more deliberative and reasonable legislative body.3

In addition to the evidence of original intent, the more modern implications of a Senate

that represents the people involve the discussion of legislative affairs at both state and federal

levels, and campaign finance issues. Montana State Senator Jerry ONeil clearly articulates the

problematic results of the Seventeenth Amendment, stating, Prior to the enactment of the

Seventeenth Amendment...U.S. Senators discussed federal affairs with their state legislators on a

regular basis. At that time, Senators did not have to raise millions of dollars to run for office.

They were not beholden to the large corporations. There is no way our Senators are going to

personally discuss federal affairs with, and handle input from, 900,000 people.4 Not to mention

the issue of campaign finance reform, rescinding the Seventeenth Amendment would put

Senators back at the deliberative table with their state legislators, where they can discuss

legislative affairs on a manageable scale, and largely out of the pockets of large corporations and


3 Number 62, page 210, The Original Argument: The Federalists Case for the Constitution Adapted for

the 21st Century, by Joshua Charles and Glenn Beck

4 Why should we repeal the 17th Amendment and forfeit our right to vote for U.S. Senators?

http://www.liberty-ca.org/repeal17/states/montana2003oneil.htmby Montana State Senator Jerry ONeil et

al
http://www.liberty-ca.org/repeal17/states/montana2003oneil.htmhttp://www.liberty-ca.org/repeal17/states/montana2003oneil.htmhttp://www.liberty-ca.org/repeal17/states/montana2003oneil.htm


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other financially influential entities. The latter would happen because they would not be forced to

raise millions just to get elected. The issues that manifested from the removal of Federalism are

both numerous and potent, but Federalism is more than just preventing corruption. It was a nod

to the idea that the power of the national government was not unlimited, and that it was subject

to the check of the state governments. Having just emerged from a war of independence from an

overbearing and tyrannical national government, it was our Founders way of ensuring that, No

law or resolution can now be passed without the concurrence, first, of a majority of the people,

and then of a majority of the states.5 The idea behind Federalism was to arm the states with

some means of defending themselves against encroachments of the national government.

6

The

Founders even cautioned us about the dangers of altering this arrangement,7 with Fisher Ames

of Massachusetts stating that, the state governments are essential parts of the system...senators

represent the sovereignty of the states.8 This balance between state and federal power is

Federalism, and as Claremont McKenna Professor Ralph Rossum states, In short, the Senate

acted to preserve the original federal/state balance, neither agreeing to further restrictions on the

states residuary sovereignty nor embracing measures that would have weakened the federal

government.9

Our history as a nation is inherently connected to the idea of Federalism. It is the

derivation of the most basic powers of our government, and to selectively remove one of its most

important features is akin to removing a kidney just for the sole reason that the body can get

along without it, without realizing the long run negative implications of being one kidney short.


6 Remarks in the Constitutional Convention, 7 June 1787, George Mason

7 Federalism and the 17th Amendment: http://www.nccs.net/newsletter/apr95nl.htmlby the National

Center for Constitutional Studies

8 Remarks in the Massachusetts ratifying convention, 19 January 1788, Fisher Ames

9 Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional

Democracy by Ralph A. Rossum Ph.D.
http://www.nccs.net/newsletter/apr95nl.htmlhttp://www.nccs.net/newsletter/apr95nl.html


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The evidence clearly points to the relative impossibility of completely democratizing the Senate

and to the negative consequences of the progressive efforts thus far to democratize the Senate.

The Seventeenth Amendment, a progressive reform, was originally intended to get rid of the

millionaires club that was supposedly the Senate, but as history has proven, its members have

only become more entrenched with big corporations and wealthy financiers. The Seventeenth

Amendment has usurped the rights and powers of the states and removed an important check in

increasingly dangerous federal power. As such, the Seventeenth Amendments murder of

Federalism has come at too high a cost and cannot at all be reasonably justified with any

evidence, and therefore cannot stand. Therefore, concerning the debate of the representation of

the Senate, the Senate should not directly represent the people, and the damage done to

Federalism by the Seventeenth Amendment and subsequent Court rulings must be corrected with

all deliberate speed if we are to ensure the stability of our nations future, and the continued

freedom of the individual and the state from the increasingly meddlesome federal government.

a case for federalism and the repeal of the 17th amendment

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