Why we have, and should keep, the 17th Amendment
The emergence of the so-called tea party as a political force in American politics has shed light on some of the paradigm-shifting ideas of the political right. One proposal heavily touted by some tea partyers but receiving far less media coverage than others is the repeal of the 17th Amendment, which The Times wrote about in an Oct. 21 editorial. That 1913 constitutional provision displaced state legislatures in the selection of U.S. senators and gave citizens the right to directly elect their representatives in the upper house of Congress. Tea party-backed Senate candidates have embraced the idea of repeal to varying degrees. For example, Ken Buck of Colorado has called for eventual repeal, while Mike Lee of Utah doubts the viability of repeal efforts but laments the harm that the direct election of senators has inflicted on states’ rights.
That an ostensibly populist movement like the tea party would so openly disdain a populist constitutional amendment is itself a noteworthy contradiction. But the repeal idea also reflects a common misconception of the Senate as a representative of the states as well as a misunderstanding of the true reason for the 17th Amendment’s existence.
The legislative appointment of senators that preceded the 17th Amendment was not uniformly or even primarily viewed as a means of protecting states’ rights in the national government. First, as framers such as James Madison pointed out at the Philadelphia Constitutional Convention of 1787, it was the undue solicitude of state legislatures to popular will that precipitated the effort to form the national government. The appointment of senators by these same legislatures would likewise reflect the sovereignty of the people, not abstract states’ rights.
Indeed, even under legislative appointment, many state legislatures routinely held popular primaries or conducted polls to determine whom to appoint to the Senate. And once appointed, senators voted individually rather than on a per state basis, and there was no mechanism to recall a senator who cast a vote with which his state legislature disagreed.
All of these incidents of the legislative appointment of senators underscore what Alexander Hamilton said of the notion of states’ rights being represented by the Senate: “As states are a collection of individual men, which ought we to respect most, the rights of the people composing them or of the artificial beings resulting from the composition[?]”
By the time the 61st and 62nd Congresses took up debate on ratification of the 17th Amendment, the notion of states’ rights had been revivified by the Civil War and the Reconstruction-era intervention of the federal government in the affairs of the South. However, a significant if not preponderant share of the debate focused not on the merits of directly electing senators or on the abstract notion of the Senate representing states’ rights, but rather on the attempt by Southern Democrats to repeal the 15th Amendment, which gives blacks the right to vote. Not atypical of the debates concerning direct elections is the sentiment of Sen. Davis of Georgia, who lamented that the 15th Amendment had given to “the ignorant, vicious, half barbaric Negroes of the South the right to vote and the right to hold office.”
In presumed contrast to the tea party’s invocation of states’ rights, the notion of states’ rights that pervaded the ratification debates on the 17th Amendment was a subterfuge for the continued oppression of blacks. In defeating the “race rider” Southern Democrats attempted to attach to the 17th Amendment, the 62nd Congress reaffirmed African Americans’ right to vote.
None of this suggests that the tea party’s concern with the responsiveness of government — and the Senate in particular — is not important and genuine. Its prescription, however, is misplaced. Instead of depriving citizens of the right to vote in Senate elections, the tea party should focus on how we hold such popular elections.
For instance, in a state the size of California, with as much demographic and political variation as it has, why do we hold at-large elections for the Senate? Instead, why not apportion the state into Senate districts, as we do with the House? This practice would make the Senate better represent interests that it was always intended to represent: the peoples’.
Whether partisan, racial or otherwise, the diversity of those interests is difficult to capture in statewide contests in which hegemonic coalitions can consistently outvote smaller groups. Nothing in the text of the 17th Amendment or its legislative history prevents a state from attempting to make its senators more responsive through districting. Instead of advocating a long-shot repeal, the tea party should strive for more attainable reforms.
Terry Smith, who has been published extensively on the history of the 17th Amendment, is a distinguished research professor at the DePaul University College of Law.