Repeal the 17th Amendment
24. Oct, 2008 
12 Comments
by John MacMullin, Mises.org
Nearing election time again, we are reminded that the there are no checks and balances available to the states over federal power or over Congress itself in any area. However, in the history of our country, it was not always this way. In the original design by the Framers of the U.S. Constitution, there was an effective check on Congress through the state legislatures’ power to appoint (and remove) United States Senators.
As such, the core of the problem with state’s rights issues lies in the passage of the 17th Amendment in 1913, which abrogated the state legislatures’ right to appoint United States Senators in favor of popular election of those officials. This amendment created a fundamental structural problem which, irrespective of the political party in office, or the laws in effect at any one time, will result, over time, in expanding federal control in every area.
The 17th Amendment caused a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and federal control over a number of state institutions.
The amendment has also caused a fundamental breakdown in campaign finance issues with respect to United States Senators. As to United States Senators, campaign finance reform, a hot topic in Congress now, can be best achieved by repealing the 17th Amendment to the United States Constitution. It should be readily apparent that United States Senators, once appointed by the state legislature, would have no need for campaign financing whatsoever.
The reason for the passage of the 17th Amendment should be stated. 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. Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks. The problem of deadlocked legislatures continued unabated from 1787 until 1913.
The 17th amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power. Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact.
The 17th Amendment should be repealed. This would reinstate the states’ linkage to the federal political process and would, thereby, have the effect of elevating the present status of the state legislatures from that of lobbyists, to that of a partner in the federal political process. The state legislatures would then have the ability to decentralize power when appropriate.
It would give state legislatures direct influence over the selection of federal judges and the jurisdiction of the federal judiciary and much greater ability to modify the power of the federal judiciary. This structure would allow the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change.
The existing relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little or no hope of return. The resulting issue surrounding the fracas between the states and federal government is whether the states or the federal government should be exercising a particular power.
The impact of the 17th Amendment upon that issue and the states’ present ability to exercise the original power granted to them by the Framers of our Constitution is clear.
A proposed amendment to the U.S. Constitution, designed to repeal the 17th Amendment, follows:
AN AMENDMENT TO REPEAL THE SEVENTEENTH AMENDMENT AND RELINK THE STATES TO THE FEDERAL POLITICAL PROCESS
SECTION ONE. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.
SECTION TWO. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six year term and may be reappointed. Each Senator shall have one vote.
SECTION THREE. Among the duties of each Senator is the primary duty to represent the government of their State, and in particular, their State’s Legislature, in the Senate. For the purpose of maintaining communications with its Senators, each State Legislature shall establish a liaison committee and shall specify the duties, procedures, and method of appointment of that committee. This committee shall work with its United States Senators in evaluating the impact of federal legislation on their State. All legislation proposed by Congress, and all treaties proposed, shall be submitted to each State’s liaison committee.
SECTION FOUR. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.
SECTION FIVE. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this amendment, related to the selection and removal of Senators.
SECTION SIX. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislatures.
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I agree enthusiastically that the 17th should be repealed, but I would like to hear more about the thought behind the language of your proposed amendment. I have two concerns: One, writing into the constitution that states may recall senators by majority vote of both legislative bodies would seem a bit heavy-handed, and in foreseeable cases could effectively limit senate terms to two years (every local election). Two, requiring liaison committees also seems like a bit of an oppressive intrusion. It’s a good idea – for sure – but if a state has a better idea, they should be free to do that (or be idiots and do nothing at all – that’s their right).
With all that said, the language you suggest is a very valuable addition to the debate. I really appreciate you putting it out there.
Some really interesting perspective on this issue, thanks for the input! Looking forward to seeing you around this site more in the near future…
The proposed amendment does not address the original problem that gave rise to the Seventeenth Amendment. From your article: "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." The amendment should address this problem.
Or, how about just repealing the amendment altogether?
Just repeal the 17th Amendement. Just because NY could not elect it senators is no reason to punish the other states. NY has always run this country politically. Each state had sovereign rights, but NY didn’t care. It wanted populism and got it. The 16th Amendment must be repealed too.
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REPEAL THE 16th AMENDMENT AND THE 17th AMENDMENT NOW TO RESTORE LIBERTY!
3 events got us into the crisis today. All the talk of petitions and the like to Congress and the President ignore the fundamental problem which transformed our nation from a liberty-loving Constitutional Republic to a liberty-destroying Socialist Democracy. Don’t doubt me. Time and again Conservatives and Libertarians ask the same questions. How do we restore our nation to its founding principles?
First, we must stop fighting Liberals, Liars, Statists, Socialists, and Communists are their terms. They stole our nation from us. They are the enemy. Populism is evil.
The 3 events that transformed our nation into a downward spiral are the 16th Amendment, the 17th Amendment, and the election of Woodrow Wilson. That’s it. Nothing more.
We must repeal the 16th Amendment and the 17th Amendment. These amendments empower the Left to oppress us. These amendments brought the Statists to power starting with Woodrow Wilson. These amendments enabled unlimited taxation and nationalized the several states. These amendments nationalized our country. These amendments are the root of our problems.
I’ll prove it. The Left and their evil cabal will never allow these amendments to be repealed. Period. A political revolution will have to take place to get these amendments repealed. The Left needs these amendments to continue socializing and nationalizing our nation.
All of the debates about policies and the like are framed within these amendments making the the Left the agenda makers and power-brokers. These amendments are the tools for enormous taxation imposed upon us by our unaccountable government. High taxes are the weapons used by the left to steal our liberties.
My children will be indentured servants of the Federal Government unless we repeal the 16th and 17th amendments. We are enslaved today by our Nationlized Government. We are living in Orwell’s 1984.
REPEAL THE 16th AMENDMENT AND THE 17th AMENDMENT NOW TO RESTORE LIBERTY!
hey burningspleen – I agree that repealing the 16th and 17th would do a great deal for liberty. But, can you point to any movement that’s actually making headway on this? Or, is it just an exercise in futility? We’re looking in places other than the federal government to solve our problems….
The 17th amendments clearly did not fix the deadlock problem as the election of al Franklin proves. The people are just as capable of being in indecisive as the State legislators, at least in the legislator there is a democratic reason due to inability to agree on who to elect, rather then inability to agree on an election outcome.
If you wanted to fix it say repeal the 17th and say senators shall be elected by the state legislator and hold office until replaced. But that would cause more problems with the incumbent advantage merely needing to prevent a vote, its better to have no government then bad government. So I’m content to live with the “dead lock” problem, as long as we establish a quorum consist of at least 1 senator from every state.
Notably of course that will make the “dead lock” problem much more severe (one state could shut down congress by denying senators) in difference cases then just repealing the 17th amendment but again I contend that no Federal government is better then bad Federal government.
If all else fails the States have at least the means to defend themselves if actually invaded or such eminent danger of invasion as not to permit delay. So really it’s just reducing us to our basic elements.
Then again just repealing the 17th amendment and having the old “deadlock” problem constitutes a loss to the State in deadlock not to the whole of the united States so maybe they deserve to be unrepresented for the time they cant decide on a senator due to internal political wrangling.
It is not justifiable to screw over everyone just because one person is doing harm to themselves.
So in conclusion the best answer is simply repealing the 17th amendment, if New York wants to harm itself with internal political deadlock on the simple issue of protecting the interest and power of the state of New York, then let it. Do not let it however become a tool for the harming of all other States.
We must recognizes that harming someone only consist of doing something to them of your own accord which deprives them of their otherwise preexisting rights, it doesn’t not consecutive failing to protect them from themselves, or anyone else if not contracted.
Other people’s services are a privilege when wanted, not rights unless willfully contracted for by both parties.(provider and reserver)
I think there are enough groups challenging the legality of the 16th amendment. How about a group instead to challenge the constitutionality of the tax code instead? It surely violates the principle of equal protection by setting tax rates. If the income tax is legal, the only legal rate is one rate for all, no deductions or exemptions, and no minimum income level that doesn’t pay. This would force congress to be responsive to all the people. Also, how about a challenge to any and all laws that congress exempts itself from?
Section One is all that is needed. Period.
The more you add, the more you take away. Note the brevity of the original section in Article I, and it “worked” for 130 years. No need to overdo it with specifics enumerated in a federal amendment that govern how a state manages its Senators. Especially since restoring power to the several States is the entire point of this exercise.
I do appreciate the contribution to the discussion made by the additional sections of your proposed Amendment. As it is, Section Five is the most valuable for its further restrictions on federal power.
Remember, the entire problem was procedural to begin with, as you explained. It was NOT structural, though the change rendered by the Seventeenth Amendment was very much so. The original solution to a deadlocked legislature is the same that would be necessary today: let them work out their own procedural problems. That’s what they’re elected and paid to do. (If they allow their state to be unrepresented, then the electors can throw them out.)
ADDITIONAL COMMENTS on Section Four: I also agree that allowing the recall of Senators with a simple majority defeats the purpose of a six-year term. That long term is an important aspect of the Senate, as it is supposed to be the most removed from direct democracy and resilient for a time to the fleeting whims of the hoi polloi. In addition–and another problem with the specificity of your proposal–certain states (Nebraska and, potentially, Maine) have unicameral legislatures, so the “each house” terminology is awkward, though technically still correct.
Thank you, though, for this well-presented article on a very important issue!
u r all idiots if u want the amendment repealed