By David H. Gans, Human and Civil Rights Director

Tea Partiers love the Constitution, except for the parts they want to jettison.  In fact, time and again, when they claim they want to restore our Founders’ Constitution, this means repealing Amendments that “We the People” have added to the Constitution over the last two centuries.   For example, even as many Tea Party candidates have run for election to the U.S. Senate, members of the Tea Party movement regularly argue for the repeal of the Seventeenth Amendment, which provides for the direct election of Senators, giving Americans the right to vote for the Senators who represent them in Congress.  To these Tea Partiers, we’d be better off if state legislatures had the power to choose our  Senators, the manner in which Senators were chosen before the Seventeenth Amendment. This week, in the National Review, George Mason Law Professor Todd Zywicki tries to provide an academic defense of the Tea Party’s repeal campaign, arguing that the Framers of the Constitution were right to give state legislatures the power to elect Senators as a bulwark of federalism and protection of states’ rights. 

According to Zywicki, this was “good politics and good constitutional design” that the Progressive movement of the early 20th Century bungled.  “By securing the Seventeenth Amendment’s ratification,” Zywicki argues, “progressives dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.”  But Zywicki has it exactly backward.  The Seventeenth Amendment marks our constitutional progress – one of many examples of how “We the People” have made our Constitution a better document, more respectful of the right to vote and basic principles of democracy.  And it was the States themselves – supposedly the beneficiaries of the Founding regime the Seventeenth Amendment displaced – that were instrumental in securing the approval and ratification of that Amendment. Even before ratification, the States had recognized that more democracy was a good thing by changing their own laws to give the people a voice in electing their own Senators.   

By 1912 – when the Senate finally capitulated to public pressure and approved the Seventeenth Amendment – thirty-three states had provided for direct primaries; another twelve states had implemented the “Oregon system” in which candidates for state legislative office pledged whether or not they would adhere to the results of the popular vote for Senator.  Between 1874 and 1912, Congress received 175 petitions from state legislatures calling for direct election of Senators.  Most important, when year after year, the Senate refused to approve the proposed Seventeenth Amendment, states around the country petitioned Congress for a constitutional convention.  By 1910, 27 states had called for a convention, and only the threat of an actual convention finally spurred the Senate into action. If election of Senators by state legislatures was the bulwark of federalism Zywicki calls it, why did so many states push to eliminate it?  The answer – completely absent from Zywicki’s account – is that election of Senators by state legislatures was a disaster. 

Far from being “good politics” or “good constitutional design,” the system led to rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people.  These ills made the case for bringing the election of Senators in line with the Constitution’s fundamental values of protecting democracy and securing the right to vote to all Americans a very strong one.  Once the Senate relented and approved the Seventeenth Amendment, the States ratified the Amendment in less than eleven months. Zywicki complains that the Seventeenth Amendment was ratified without any thought of its consequences for the Constitution’s protection of federalism – part of a consistent pattern by conservatives to belittle the intelligence and motives of the brave Americans who have fought for and secured constitutional Amendments — but that is not, in fact, correct. 

In both the House and Senate, members of Congress who opposed the Seventeenth Amendment argued for retaining indirect election of Senators, calling the proposed Amendment “a most direct blow at the doctrine of State’s rights and at the integrity of state sovereignties.”  Zywicki’s federalism arguments were in fact made at the time, and dismissed by the American people. The American people rejected the idea that state legislatures should be charged with selecting the people’s Senators; that was a false federalism that exalted wheeling and dealing in corrupt state legislatures over the voice of the people themselves.

Going forward, the people would select the Senators responsible for representing their and their state’s interests in Washington. States acting as “laboratories of experimentation” – itself a venerable principle of federalism – recognized that the process the Founders selected did not work, and that direct election of Senators by the people was a better fit with our constitutional principles.

Cross-posted at Balkinization