17th Amendment: An afternoon conversation

I was breaking bread with a dear friend of mine, hereafter known as Forest, on Friday over a couple bland burritos. He’s a staunch conservative and a huge fan of George Bush Jr. and I’m a registered Democrat who views the current president as a harbinger of Armageddon so, naturally, our political discussions are spirited to say the least. We were bandying about the current judicial filibuster flap and the now infamous Newsweek brain fart. Eventually our talk turned to my theory that the 17th Amendment should be abolished and boy did the fur start to fly. It is my recent contention, call it an epiphany, that choosing U.S. Senators by popular vote is contradictory to the original intent of the Constitution. Article I states; “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.” The 17th Am. unequivocally obliterates this provision and gives the power to the people to choose the members of the Senate.

As he is apt to do Forest brought up a couple of interesting points to refute my contention. First, he said that returning the senatorial selection method to its original framework, i.e. state legislatures select senators, political cronyism and nepotism would hold sway over the process. Second, Forest feels that this would add yet another layer of cumbersome bureaucracy to an already sluggish governmental instrument. Forest went as far to say that my theory is symptomatic of my supposed allegiance to expanded government. Third, he says that the current electoral process is as accurate a reflection of the legislative will of the states as the original Article I stipulation was.

Forest always keeps me on my toes but he’s utterly wrong on this one.

The Federalist Paper No. 62 says, “The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education.” This is a clear manifestation by two of the Founding Fathers, Alexander Hamilton and James Madison, that Senators need to be more mature and qualified because of the nature of their unique responsibilities. The only way to ensure this is letting the state legislatures appoint Senators, cronyism and nepotism be damned. ‘Tis better to err on the side of a quid pro quo arrangement than to let a glorified beauty contest that is a general election choose members of the most powerful and influential legislative body in the land. General elections have degenerated into a preening contest where one-upmanship carries the day. Eliminate the frenzied election, replace it with an appointment mechanism and you create a system where candidates have to run on their qualifications and not on whether their hair is styled correctly or the cut of the navy-blue suit is flattering or dignified.

Admittedly, as seen by the bloodbath in the Senate over judicial appointments, the process for appointing anyone to a position higher than little league coach can be a bit tedious. It stands to reason that a state legislature would grind to a halt should they be entrusted with appointing members of the Senate. The very first session of Congress saw the state of New York without a senator because of a gird-locked state legislature. Thus was born the 17th Amendment, a little modification that was supposed to solve the problem of endless debate on the state level. Seems that the states no longer wished to be burdened with the arduous task they had been entrusted with. But we’ve exchanged one bureaucratic nightmare for another. Infinitely more costly, general elections also ensure that senators can literally ignore their constituency for four years and campaign for the last two years of their tenure. General elections and the onerous campaigns that are a little ancillary effect are expensive, mind numbing, and quite frankly boring. A state level dog fight would be far more entertaining than watching still-born stuffed shirts pontificate about issues they’ll do nothing about four 2/3 of their term anyway. Give me the state feud and you can have your multi-million dollar election. If anything abolishing the 17th would save millions of tax payers' dollars. How does this increase the size of government? Tell me, I'm dying to know.

The most important and intriguing question is which scheme is a more accurate reflection of the states’ will. However, there is an even more fundamental threshold issue that must be addressed; should the Senate be a vassal of the states or of the people. Clearly Article I intended for the Senate to be a voice for the individual states. Therein lays the rub. The framers of the Constitution never intended for the Senate to be in the hands of the people. That’s what the House of Representatives is for. Forest’s third point appears to be moot, especially when you apply another proviso to the equation. Article V stated, “No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Echoing this sentiment, James Madison wrote in Federalist Paper #43, “The prohibition against the adoption of any amendment whereby a state is deprived of its equal suffrage in the Senate without its consent involves two things: first, that if the state chooses to consent, it may be deprived of its equal suffrage in the Senate; and, second, that it may not, by any amendment, be deprived of its power to give or refuse its consent.” Simply put, any state that does not wish to acquiesce to Am. XVII doesn’t have to. This is one of the most stunning bits of political trickery in American history.

The more research I do the more convinced I become that the 17th Amendment has done irreparable damage to this country. This insidious concoction of legal slight of hand has led to the rampant partisanship that stonewalls nearly all meaningful change. The states have lost their voice in Congress due in no small part to laziness and apathy. Contrary to original intent the states have literally no say in the process that fundamentally and profoundly affects their sovereignty and we have Amendment XVII to thank for that.