May 15, 2012 – Essay #62 – Amendment XVII: Reform or Revision? – Guest Essayist: Ralph A. Rossum, Ph.D., the Salvatori Professor of American Constitutionalism at Claremont McKenna College

Amendment XVII:

1: 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.

2: 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.

3: 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.

Seventeenth Amendment

The Seventeenth Amendment replaced the Constitution’s original indirect election of the U.S. Senate by state legislatures with direct election by the people; it was approved by the Congress on May 12, 1912, was ratified by the requisite three-fourths of the state legislatures in less than 11 months, and was declared to be a part of the Constitution on May 31, 1913.  Not only was it ratified quickly, it was ratified by overwhelming numbers: In 52 of the 72 state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all 36 of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from the lower chambers of Vermont and Connecticut.

While state ratification of the Seventeenth Amendment came quickly and easily, approval by the Congress did not. The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From that date until the adoption of the Seventeenth Amendment 86 years later, 187 subsequent resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate reluctantly gave its consent.

By altering how the Senate was elected, however, they also altered the principal mechanism employed by the framers to protect federalism.  The framers understood that the mode of electing (and especially re-electing) senators by state legislatures made it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states. This understanding was perfectly captured by Alexander Hamilton during the New York Ratifying Convention on June 24, 1788, when he explicitly connected the mode of electing the Senate with the protection of the interests of the states as states. “When you take a view of all the circumstances 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.”

Hamilton’s arguments to the contrary, notwithstanding, the states quickly and overwhelming ratified an amendment that removed the principal structural means for protecting the original federal design and the interests of the states as states. Four factors explain why they did so.

The first was legislative deadlock over the election of senators brought about when one political party controlled the state assembly or house and another controlled the state senate. Prior to the ratification of the Seventeenth Amendment, there 71 such legislative deadlocks, resulting in 17 senate seats going unfilled for an entire legislative session or more. These protracted deadlocks often led to the election of “the darkest of the dark horse” candidates, occasionally deprived the affected states of representation in the Senate, always consumed a great deal of state legislative time that was therefore not spent on other important state matters, and powerfully served to rally the proponents of direct election.

A second factor was the political scandal that resulted when deadlocks were occasionally loosened by the lubricant of bribe money.  While corruption was proved to be present in only seven cases of the 1,180 senators elected from 1789 to 1909, these instances were much publicized and proved crucial in undermining support for the original mode of electing senators.

A third factor, closely related to the second, was the growing strength of the Populist movement and its deep-seated suspicion of wealth and influence. It presented the Senate as “an unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but low in integrity.”

And, when Populism waned, Progressivism waxed in its place, providing a fourth (and ultimately decisive) factor: The Progressives believed that the cure for all the ills of democracy was more democracy. Their goal was, as Woodrow Wilson proclaimed in his 1912 campaign book The New Freedom, for government to be not only “of, by, and for” the people, but “through the people.”

Ralph A. Rossum, Ph.D. is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of a number of books  including Federalism, the Supreme Court, and the Seventeenth Amendment, Antonin Scalia’s Jurisprudence: Text and Tradition, and American Constitutional Law (8th edition).

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7 Responses to “May 15, 2012 – Essay #62 – Amendment XVII: Reform or Revision? – Guest Essayist: Ralph A. Rossum, Ph.D., the Salvatori Professor of American Constitutionalism at Claremont McKenna College”

  1. LongTabSigO says:

    Said a different way, with the passage of this amendment, the 50 Governors lost their direct link to the Federal Government, and the 50 legislatures lost their input into the federal legislative process.

    Repeal of this amendment (and the 17th as well) are critical to the effort to effectively rein in the Federal Government.

  2. Ron says:

    Is there any group or person working diligently on reversing this, or is reversal dead on arrival?

  3. Marvin Casteel says:

    in my opinion this “change” in how the Senate was elected Neutered the States, the States, as a whole, now have no voice in Washington, in effect we have to slightly different houses of Representatives. also the Senators who would be out for personal power and greed would want it the way it is now, as they do not have to look up to their respective State legislators any longer much less even listen to them. it is a travesty to the system as originally set up by our wise founding fathers.

  4. Ralph T. Howarth, Jr. says:

    Consider also that US Senators ratify treaties and act as the “jury of peers” when impeaching other federal officers, senators used to be the epitomy of statesmen. Now they are elected by popular vote by a population that is removed from, and ignorant of, the affairs of running a state and making treaties with foreign powers.

  5. Barb Zakszewski says:

    It was actually a sad day when this Amendment went into effect, as the balance between the States and the Federal government was forever tipped strongly in favor of the Federal government. and the Federal government has NOT stopped since that time to wrest away any semblence of control the States or the citizens might have over our own lives. To Ron’s questions, I believe I heard some conversation a couple years ago of possibly looking at this Amendment, but I do not believe anything came of it. This nation is SO far away from where we first started. All we can do is continue to educate people on the Constitution and the circumstances of this Great Nation’s founding, and thus, prevent the re-writing of our Nation’s history that Liberals are attempting.

  6. Capt. Jack Smith says:

    —–

    This message from Quang Nguyen brought tears to my eyes. Several of my friends died in Vietnam.

    pt

    VIETNAM IMMIGRANT
    On Saturday, July 24th, 2010 the town of Prescott Valley, AZ, hosted a Freedom Rally. Quang Nguyen was asked to speak on his experience of coming to America and what it means. He spoke the following in dedication to all Vietnam Veterans. Thought you might enjoy hearing what he had to say:

    35 years ago, if you were to tell me that I am going to stand up here speaking to a couple thousand patriots, in English, I’d laugh at you. Man, every morning I wake up thanking God for putting me and my family in the greatest country on earth. I just want you all to know that the American dream does exist and I am living the American dream. I was asked to speak to you about my experience as a first generation Vietnamese-American, but I’d rather speak to you as an American.

    If you hadn’t noticed, I am not white and I feel pretty comfortable with my people.

    I am a proud US citizen and here is my proof. It took me 8 years to get it, waiting in endless lines, but I got it, and I am very proud of it.

    I still remember the images of the Tet offensive in 1968, I was six years old. Now you might want to question how a 6-year-old boy could remember anything. Trust me, those images can never be erased. I can’t even imagine what it was like for young American soldiers,10,000 miles away from home, fighting on my behalf.

    35 years ago, I left South Vietnam for political asylum. The war had ended. At the age of 13, I left with the understanding that I may or may not ever get to see my siblings or parents again. I was one of the first lucky 100,000 Vietnamese allowed to come to the US. Somehow, my family and I were reunited 5 months later, amazingly, in California. It was a miracle from God.

    If you haven’t heard lately that this is the greatest country on earth, I am telling you that right now. It was the freedom and the opportunities presented to me that put me here with all of you tonight. I also remember the barriers that I had to overcome every step of the way. My high school counselor told me that I cannot make it to college due to my poor communication skills. I proved him wrong. I finished college. You see, all you have to do is to give this little boy an opportunity and encourage him to take and run with it. Well, I took the opportunity and here I am.

    This person standing tonight in front of you could not exist under a socialist/communist environment. By the way, if you think socialism is the way to go, I am sure many people here will chip in to get you a one-way ticket out of here. And if you didn’t know, the only difference between socialism and communism is an AK-47 aimed at your head. That was my experience.

    In1982, I stood with a thousand new immigrants, reciting the Pledge of Allegiance and listening to the National Anthem for the first time as an American. To this day, I can’t remember anything sweeter and more patriotic than that moment in my life.

    Fast forwarding, somehow I finished high school, finished college,and like any other goofball 21 year old kid, I was having a great time with my life. I had a nice job and a nice apartment in Southern California. In some way and somehow, I had forgotten how I got here and why I was here.

    One day I was at a gas station, I saw a veteran pumping gas on the other side of the island. I don’t know what made me do it, but I walked over and asked if he had served in Vietnam. He smiled and said yes. I shook and held his hand. The grown man began to well up. I walked away as fast as I could and at that very moment,I was emotionally rocked. This was a profound moment in my life. I knew something had to change in my life. It was time for me to learn how to be a good citizen. It was time for me to give back.

    You see, America is not just a place on the map, it isn’t just a physical location. It is an ideal, a concept. And if you are an American, you must understand the concept, you must accept this concept, and most importantly, you have to fight and defend this concept. This is about Freedom and not free stuff. And that is why I am standing up here.

    Brothers and sisters, to be a real American, the very least you must do is to learn English and understand it well. In my humble opinion, you cannot be a faithful patriotic citizen if you can’t speak the language of the country you live in. Take this document of 46 pages – last I looked on the Internet, there wasn’t a Vietnamese translation of the US Constitution. It took me a long time to get to the point of being able to converse and until this day, I still struggle to come up with the right words. It’s not easy, but if it’s too easy, it’s not worth doing.

    Before I knew this 46-page document, I learned of the 500,000 Americans who fought for this little boy. I learned of the 58,000 names scribed on the black wall at the Vietnam Memorial. You are my heroes. You are my founders.

    At this time, I would like to ask all the Vietnam veterans to please stand. I thank you for my life. I thank you for your sacrifices, and I thank you for giving me the freedom and liberty I have today. I now ask all veterans, firefighters, and policeofficers, to please stand. On behalf of all first generation immigrants, I thank you for your services and may God bless you all.

    QuangNguyen
    Creative Director/Founder
    Caddis Advertising, LLC

    “God BlessAmerica”
    “One Flag, One Language, One Nation Under God”

  7. Capt. Jack Smith says:

    I just had to forward that Beautiful Speech above so as many people would see it as possible.I’m just a tired old Marine waiting to be called back to duty to defend our country from all Enemies foreign and DOMESTIC.I hope the Corp doesn’t wait much longer to call be back I’ll be 65 in November,LOL Wouldn’t it be wonderful if all immigrants and our OWN collage students felt the same?? Bet they would if they had to live the life of this young PATRIOT. Respectfully Yours, Capt. Jack

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