Repeal the Seventeenth Amendment?

The lava-like drift toward not just democracy but mass democracy might one day culminate in government by plebiscite. If that’s where American government is headed, we have all the more reason to turn in the opposite direction. And a good first step in that direction would be to repeal the 17th Amendment.

Constitutional amendments are not high on the “to-do” list of the narrow Democratic majority these days. Their preference seems to be to do end runs around the Constitution instead. But maybe it’s time for the Republican party to build a case for repealing a previous constitutional amendment. Here the case would not be to “repeal and replace,” but to repeal and return. Specifically, we should scrap the 17th Amendment, which gave us the direct election of senators, and return this task to the state legislatures, which called this shot until 1913.

Repeal a constitutional amendment? Why not? It’s happened before—and to another progressive-era amendment no less. The 18th Amendment, which banned the manufacture and sale of “intoxicating liquors,” was eliminated fifteen years later by the 21st Amendment.

The 17th Amendment has been on the books for more than a century. Why repeal it now—or ever? Surely, it’s one thing to restore the right of private citizens to sell and buy booze and quite another thing to do away with the right of those same citizens to select their United States senators. Nonetheless, a case can still be made for repeal. In fact, such a case might be stronger than the case for the original amendment.

The charge against the senate of the late 19th century was that it was a millionaires’ club. The best estimate is that perhaps a dozen senators qualified for this level of membership. Today more than half of our senators are millionaires more than once over. Inflation no doubt accounts for some of this, but if money was a problem of sorts then, money remains a problem of a different sort today. Then some senators were bought and paid for by others; today many senators spend their own money for their own seats.

The inimitable H.L. Mencken saw nothing wrong with this. Writing with tongue firmly in cheek, he defined an honest politician as one who, when bought, stays bought.

Reformers, a part of whom Mencken was not, thought differently. Millionaires or no, many senators of that era were products of political machines, thereby providing another reason for progressive reformers to favor turning this vote over to the people. The progressive assumption was that such machines were by definition corrupt.

Well, since then progressives have built their own political machines to advance their power and their agenda. More than that, progressives today are doing what they can to put in place one-party government.

The Founders may not have anticipated machine politics, but they did understand what they were creating, as well as the precariousness of its prospects. Remember the famous Ben Franklin line? When asked what form of government had emerged from the Philadelphia convention of 1787, he replied, “a republic, if you can keep it.” Notice he did not say a democracy.

A republic we were at the outset, and a republic we must try to remain. Whether we are the republic that we once were is another matter, but we were certainly never a town hall democracy writ large. Nor were we ever intended to be. Government by plebiscite was never the goal, much less the ideal. Representative government was always the idea, even though under the original Constitution only members of the House of Representatives were chosen directly by the people.

Senators were not only selected in a different way, but they were expected to perform a different function. Elected by state legislatures, they were sent to the federal Congress as representatives of their states.

In addition, the senate served, at least in theory, but often in practice, as a cooling-off place. More insulated from politics by a six-year term, senators were to take a longer look at legislation, as well as a longer view of what was in the best interest of the country. It was all part of the Madisonian conception of checks and balances, which sought to ensure that legislation would not be passed in the heat of the moment—or without a broad consensus.

James Madison wanted to make it difficult, but not impossible, to pass legislation, the idea being that the greater the degree of difficulty, the greater the likelihood of a good result. He proposed a filtering system to weed out bad legislation. To be sure, this notion of the senate-as-filter was not eliminated by the 17th Amendment, but it would be enhanced by its elimination.

Like many of the men of Philadelphia, Madison was a young man. Nonetheless, an unwritten assumption of the Founders was that senators would be elder statesmen. In a country without an established aristocracy there could—and should—be no House of Lords. But there could—and should—be something somewhat similar. And, for a time, there was.

We might return to that not only by repealing the 17th Amendment, but by raising the age minimum to fifty. OK, to this extent a new amendment would have an element of “repeal and replace.” And while we’re at it, we might restore the sense that a senator truly is a public servant. Instead of running for the office, prospective senators would be drafted (by the state legislatures) to serve. And why not? After all, some jobs, including some political jobs, are best put in the hands of those who don’t necessarily want them—or seek them.

None of this is a plea to remove the senate from politics. Politicking would certainly go on within the state legislatures as members considered potential candidates. And politicking would certainly continue to be a part of the way of life within the senate.

The Founders understood that politics was vital to the life of a republic. More than that, Madison understood that factions were an inevitable presence in any political process at any level. What Madison and the men who gathered at Philadelphia in 1787 didn’t count on was the almost immediate birth of the first of what has so far produced three two-party political systems.

Gradually attaching themselves to this system were those darned political machines, followed eventually by those darned progressive reformers. Concerned also about the power of “the interests,” these reformers claimed to place their trust in “the people” instead. After all, since the darned “interests” had captured the parties, the solution had to be a series of end runs around them; hence, the direct primary, which gradually—and almost inevitably—greased the skids for the 17th Amendment.

This has all been part of a lava-like drift toward not just democracy, but mass democracy, a drift that might well culminate one day in government by plebiscite. If that’s where we are headed, all the more reason to begin to head in the opposite direction. And a good first step in that direction would be to repeal the 17th Amendment.

To be sure, the original advocates of this amendment sought a senate that would be more accountable to the people. But is a regime based on mass democracy really all that accountable to the people? For that matter, is it really reflective of the will of the people? And while we’re at it, does such a regime truly increase interest and participation in politics? It’s certainly fair to wonder—and to doubt.

And while we’re wondering and doubting, let’s ponder a not-so-small irony. It’s probably not accidental that the rise of mass democracy has coincided with the increasing power of the federal government to decide on more and more, not to mention smaller and smaller matters pertaining to the lives of the masses. For that matter, it’s also likely not an accident that the rise of mass democracy has also resulted in an ever-larger entitlement state. Where is the irony in all this? In the name of making government more accountable to the people, we have enhanced the power of the state over the people.

Early 20th-century progressives may or may not have had any of this in mind, but surely the entitlement/administrative state has been the result. Let’s give them the benefit of the doubt and assume that the main idea behind the 17th Amendment was more innocent than that. Let’s assume that the goal was simply to produce a senate that would be more directly accountable to the people.

I’d argue that not only would the power of money, machines, and the “interests” be reduced by repealing the 17th Amendment, but so would the level of cynicism. Are today’s Madison Avenue ad campaigns less cynical—and less costly—than the smoke-filled rooms of old? Once again, it’s fair to wonder—and to doubt.

And shouldn’t it also be fair to ask if those smoke-stained senators really did represent “interests” that were somehow divorced from those of “the people?” Perhaps even the people themselves didn’t think so. In 1914 twenty-five incumbent senators ran for re-election under the terms of the brand-new 17th Amendment, and all twenty-five won.

Given that result, we might wonder about the need for this amendment in the first place. In fact, one could argue that the passage of the amendment was itself evidence that it wasn’t necessary. After all, by voting to ratify the 17th Amendment state legislators willingly surrendered their power to choose their state’s U.S. senators. In doing so, they were responding to political pressure, thereby demonstrating that the system actually worked as it was designed to work.

Today our federal system is not working as the Founders intended. The tilt toward centralization is in serious need of correction. In addition, the drift toward mass democracy is both ongoing and dangerous. Restoring and reinvigorating America as a republic would be a good thing. Repealing the 17th Amendment would be a good start in this direction.

Repealing the 17th Amendment won’t fix everything, but it would remind us that senators are sent to Washington, at least to some degree, as representatives of their states. Furthermore, taking a step away from mass democracy might mean taking a step toward renewing the senate as a deliberative body. Today such a body can’t repair to a smoke-filled room, but thanks to the repeal of the 18th Amendment it has other means of facilitating deliberation. The senate, after all, can be a cooling station in more ways than one—and in more places than one.

The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.

The featured image is an image of the United States Senate chamber and is in the public domain, courtesy of Wikimedia Commons.