The 16th and 17th Amendments were ratified in 1913. On February 3, the 16th Amendment gave the federal government the power to “lay and collect taxes on incomes.” Something the Founder’s never intended to happen. And to make matters worse, on April 8, ratification of the 17th Amendment changed how U.S. Senators are chosen, as originally laid out in Article I, Section 3, Clauses 1 through 3 of the Constitution.
Originally, U.S. Senators were chosen by the various State Legislatures. The full text is thus (bold emphasis mine):
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.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
The full text of the 17th Amendment is thus (bold emphasis mine):
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.
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.
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.
In the first sentence of the first clause of Article 1, Section 3, and of Amendment 17 the method of selection is changed from (referring to the States), “chosen by the Legislature thereof” to “elected by the people thereof.” The purpose of this change was to give direct control of the Senate to the people of each State. The argument for such a change is readily made by appealing to the desire of citizens to have direct control over the selection of their U.S. Senators. This, it would seem, is the most democratic way to ensure the citizens of each State are best represented in the U.S. Senate.
So what were the consequences of this change?
To answer that question, we must first understand why the Founders decided that U.S. Senators should be chosen by the State Legislatures, rather than by the people of each State. As we all know, and as is enshrined in Article 1, Section 2 of the Constitution, members of the U.S. House of Representatives are elected by the people of each State. This, just like the selection process for U.S. Senators, was overtly intentional. That is why it is called, “The People’s House.”
On the other hand, the U.S. Senate was not intended to be another “people’s house.” It was intended to represent the governments of each State. Since each State Legislature represents the people of the respective States, the people would still be represented in the U.S. Senate, but indirectly through their State Legislatures.
If, at this point, you are thinking that all this sounds rather esoteric and unimportant, not to mention downright undemocratic, you are not alone. Ratification of the 17th Amendment depended upon just such a basic misunderstanding by American citizens of the Founders’ intent for the role of the U.S. Senate. A role that was, as originally envisioned and enacted by the Founders, to give voice to each State’s government in Congress.
You may ask, why do State governments need representation in Congress?
That’s a good question. The answer can be found, ironically, in the 10th Amendment, which was ratified along with the first nine amendments in what is well-known to most as the Bill of Rights. The full text of the 10th Amendment reads thus:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
One sentence. Simple. This amendment was directly linked to the original role of the U.S. Senate. The U.S. Senate’s job was to ensure that no legislation made it through Congress that violated the terms of the 10th Amendment. This seems a little bit backward at first, because the 10th Amendment was ratified along with the rest of the Bill of Rights four years after the Constitution was ratified. But the whole purpose of the Bill of Rights was to spell out the 10 most important things the Constitution was designed to protect in such a way as to make it absolutely crystal clear, just in case there were ever any question. And how have there ever been questions!
Now that we have over 200 years of experience with the Constitution and the Bill of Rights, we can easily see just how incredibly smart it was to include the Bill of Rights! Given how frequently (practically daily) the right to free speech, the right to bear arms, and the right to religious freedom are being challenged and how often the First and Second Amendments are cited in defense, without the Bill of Rights, we would likely, by now, have none. Thank God for the Bill of Rights!
So what about that 10th Amendment? Why does it matter how U.S. Senators are selected?
Think about it. U.S. Senators, just like members of the U.S. House of Representatives, are beholden to those who put them there. If they were beholden to State governments, how easily do you think they could get away with passing federal legislation that in any way infringes upon the powers of the States? Not too easily. Think State sovereignty.
In this day and age, the States are constantly bullied by the federal government in various ways. The most recent occurrence being the direct threat to revoke federal funding for any public school that fails to implement a policy allowing any male or female to use any bathroom they choose. Why is our federal government in our school bathrooms?!
If you were around back when the legal drinking age was raised from 18 to 21 years, you might recall that while this happened nationwide, all at once, it was not done by federal law. It was done by the federal government threatening to withhold federal highway funds from any state that failed or refused to raise the legal drinking age from 18 to 21 years.
That’s right. The drinking age is not federal law. It is State law. And it used to be freely set by each State for their own citizens, as they saw fit. This is clearly a 10th Amendment issue, as setting the drinking age is not enumerated in the Constitution as a federal power. The National Minimum Drinking Age Act of 1986 did not actually set a national minimum drinking age. It merely codified the federal government’s intent to extort the States into submission. This is a classic example of federal government bullying and overreach. Don’t believe me? Google it.
One State, Louisiana, fought the bullying, but eventually capitulated. If you are, or have ever been, in the U.S. Military, you know that on military bases the drinking age is still 18. Talk about hypocrisy! Apparently, what’s good for the goose is not good for the gander!
So, back to answering our question about the consequences of the 17th Amendment. When U.S. Senators can pass federal laws that force State governments to act against their will, State governments can do nothing about it. Nothing. And since State governments comprise the most local and immediate representation of their citizens, the will of the people is subverted.
You may ask, if the people directly elect their U.S. Senators, why wouldn’t they simply kick them out of office for passing a law that subverted their will at the next election?
Simple. The people are busy living their lives and not paying attention. How else to explain Lindsay Graham, Mitch McConnell, and John McCain?! Furthermore, the people do not understand the significance of each federal law that chips away at local control of their lives. State governments, on the other hand, are a much smaller subset of each State’s citizens and their job is legislation. These are the very people who, given control of the U.S. Senate, would not stand for being bullied by the federal government. It used to be a major part of their job.
A second major consequence of the 17th Amendment was a major reduction in the public’s attention to whom they elect to their State legislatures. No longer having to worry about who their State Representatives and Senators might choose to send to Washington, D.C., their interest was severely diminished. As a result, State governments are now populated by people, about which, few of the people they represent know very much. And knowing that few voters are paying attention at the State level gives State legislators the ability to abuse their positions and be derelict in their duties.
So what would happen if the 17th Amendment were to be repealed?
Firstly, at each of the following three election cycles, the State Legislatures would appoint replacements for those U.S. Senators whose terms were up. Since as of this writing 30 States are under total Republican Party control, it is likely that the U.S. Senate would become dominated by Republicans in short order unless the Democratic Party suddenly made major gains in the State governments.
Secondly, numerous federal laws that trample on State sovereignty would be considered in Congress for repeal. And no bills further infringing on State sovereignty would make it past the U.S. Senate, thus taking a major step toward reigning in federal power. Federal agencies that have made a habit of imposing crippling regulations on States would be directly in the crosshairs of U.S. Senators who would have to answer to their State’s government if they did not put a stop to it.
In short, the bullying would end.
Thirdly, the voting citizens of each State would pay a heck of a lot more attention to the candidates running for their State Legislatures at election time. The citizens of each State would have a very big hammer to use against a runaway federal government in the form of their own State government. Any U.S. Senator not doing the bidding of his or her State’s government would be a one-termer. No campaigning to a public that is too busy living life and earning a living to stay on top of what is going on in D.C. would help.
Finally, think of the reduction in disgusting negative political television ads that would occur each election cycle if U.S. Senators no longer had to campaign to the public for office! That alone might make it worth it!
It is time to Repeal the 17th Amendment!