TDG Banner

A Constitutional Blunder

The US Senate was indeed a unique social engineering invention. Its function was to allow each state to represent its own interest in Congress. So each state, by its own legislative process, elected or appointed its own two senators to serve for a six-year term in Washington D.C. Note that neither the public had a direct say in the selection of the senator nor could the national capital appoint such a person. The decision was made at the state legislature. Thus the senate countered the populist mindset in the House of Representatives, which was elected by popular vote. The founding fathers recognized that democracy in its purest form could give rise to a mob mentality, and the Senate—by being state-focused and having a longer term to think past the next election—was regarded as an important check-and-balance to both the House and the President. No other nation had a concept like this at that time.

Then in 1912, the 17th amendment to the US Constitution passed. This allowed the senators to be elected by popular vote from citizens of the state. The selection responsibility had been taken away from state legislatures.

With this change, it became easier for Congress to set up national programs for issues that were related to state rights, as defined by the constitution. For example, the federal government would offer a financial incentive to all states to adopt a national program. The state was free to accept it or reject it, but if it was rejected, the money did not flow into the state coffers. Governors and state legislatures were more often than not accepting of these funds. But when they accepted, they also had to alter their state-run programs to fit the mandate of the federal program. As such, the states lost much of the advantage to implement local solutions for local needs. Hence, there was an indirect erosion of state rights and responsibilities after senators became popularly elected. Senators lost their focus for state rights because they were now more inclined to work towards the electoral success of their political party. Maintaining that division of federal and state responsibilities became blurry.

To many “state rights” advocates, the 17th amendment was a serious mistake. And they are quick to paint the motivations of the amendment as a conspiracy to deliberately move authority, responsibility, and control away from the state capitals to Washington D.C.

But what these advocates fail to admit is that there were problems with the selection of the senators themselves prior to 1912. For example, a senate seat could be given to a loyal party worker who really had no “brand name” with the public (in other words, patronage). Or it could be given to a political rival of the governor just to keep the rival away from local politics. And a few senators treated their appointment as a six-year vacation, not really doing much in the Senate. And there were a few reported incidents of senators offering cash for their six-year term of office. And sometimes, a state legislature would not be able to agree on an appointment, leaving the state unrepresented in Senate deliberations and votes. In essence, the position of the senator was losing credibility in the eyes of the public on several fronts. There was a growing political pressure to make a change. When Oregon chose its senators based on popular vote in 1908, the rest of the country followed quickly, including the 17th amendment. Whether the USA was made better or worse because of the 17th amendment is, of course, a matter of another debate.

If one disagrees with the real reasons for the 17th amendment, then we should conclude that the Constitution failed on six counts:

1) Prior to 1912, the constitution did not produce the quality of senators to assure the public of a credible system of governance. Had the public viewed senators with trust and respect, the 17th amendment would not have happened.

2) The constitution allowed an amendment that was contrary to the original structure of the American government; i.e. the senators being chosen by a different yet credible electoral process than by popular vote.

3) State rights were eventually usurped to a significant degree, which can be attributed, to a large part, to senators changing their focus from their state to their political party.

4) Despite more than a century since the 17th amendment had passed, the mistake has not been fixed.

5) The two political parties do not want the senators to be more independent of the party and thus will not champion this cause.

6) Despite political pressure to go back to the original intent of the constitution, it is difficult for any non-partisan movement to force a repeal or replacement of the 17th amendment.

If the constitution was and is indeed a well working document, then some, if not all, of these six counts should not be there.

Or just maybe we should conclude that electing senators by popular vote and reducing state rights were good changes, meaning the constitution worked extremely well in this regard.

But we can’t have it both ways: the constitution is finest system of governance humanity can ever invent, but the 17th amendment was an extremely grave mistake.

Published on in 2017

The TDG Essay

Building a Wiser Kinder Democracy