Jul

15

Time to Repeal the 17th Amendment

Filed Under Constitution, Government, Law 

The efforts of the Founders in creating a system of government based upon checks and balances on power have suffered many attacks in the succeeding 215 years since the adoption of the Constitution. But none have been so effective at destroying what they sought to accomplish as the 17th Amendment.

The Constitution originally laid out a very simple, but effective way to separate the powers of government in Congress. This included the separation of the Legislature into two houses, one elected by the people and one appointed by the 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 by the legislatures of the several states, thereby giving the states representation in the national Legislature. The 17th Amendment was adopted to repeal this portion of the Constitution. According to John MacMullin, the 17th Amendment was ratified because of 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)

The procedural issue was one that could have been easily solved. But 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 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. What was intended to correct the problems of deadlocked state legislatures has now resulted in a deadlocked national Legislature. However, it would be in the nation’s best interest to have a few states experience temporary problems choosing their senators, than for the entire country to suffer under the current partisan deadlock.

The intention of the Founders was that the appointment of senators was to prevent partisanship in Congress. 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 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, if a state had problems choosing senators, only that state would suffer rather than the entire country.

Another good reason has appeared just this week. The vote on the Federal Marriage Amendment, which was designed to ban gay marriage at the federal level, was a 50-48 loss, with John Kerry and John Edwards abstaining. But it is a different story at the state level. Most of the states either already have amendments to their constitutions banning gay marriage, or they have one in the works. The people of these states do not wish to recognize gay marriage in their states.

In a situation like this, if the senators were still appointed, the outcome of this vote would have been very different. Instead of pro-family organizations having to regroup after a loss, they would instead be talking about the next step in the Amendment process. Instead of the majority of the country feeling betrayed by their representation in the Senate, they would be feeling confidence in our government.

On the other hand, a Federal Marriage Amendment would very likely be unnecessary, as a Senate controlled by the several states would have no trouble reigning in rogue federal judges by limiting their jurisdiction, a power granted to the Senate by the Constitution. The ruling forcing the Massachusetts State Legislature to recognize gay unions as “marriages” is a complete usurpation of authority over the state Legislature by the judiciary. This is no longer a case of judicial review; it has become a case of judicial diktat.

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 essentially non-existent. The Senate is now 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 authority. A popularly elected Senate will never see the benefit of doing so.

Some senators voted against the Marriage Amendment on the grounds that an Amendment is unnecessary, and best left to the states. That would be true if the composition of the Senate was still decided by the states. The states are now subject to the whims of the federal courts, which will certainly 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. It is time to rectify that mistake. It is time to repeal the 17th Amendment.

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