Debating the 17th Amendment


The New York Times' David Firestone takes a critical look at the efforts among some Tea Party activists to repeal the 17th Amendment, which provides for the direct popular election of U.S. Senators:

Allowing Americans to choose their own senators seems so obvious that it is hard to remember that the nation's founders didn't really trust voters with the job. The people were given the right to elect House members. But senators were supposed to be a check on popular rowdiness and factionalism. They were appointed by state legislatures, filled with men of property and stature.

A modern appreciation of democracy — not to mention a clear-eyed appraisal of today's dysfunctional state legislatures — should make the idea unthinkable. But many Tea Party members and their political candidates are thinking it anyway, convinced that returning to the pre-17th Amendment system would reduce the power of the federal government and enhance state rights.

That's precisely the point Judge Andrew Napolitano made when I interviewed him about his new book Lies the Government Told You. Here's his argument against the 17th Amendment:

Reason: You end the book with a call for a "major political transformation." What is the single most important reform?

Napolitano: I would repeal the 17th Amendment [which provides for the popular election of U.S. senators]. Can an amendment to the Constitution itself be unconstitutional? Yes, that one. If you read Madison's notes from the constitutional convention, they spent more time arguing over the make-up of the federal government and they came up with the federal table. There would be three entities at the federal table. There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators. Not the people in the states, but the state government. When the progressives, in the Theodore Roosevelt/Woodrow Wilson era, abolished this it abolished bicameralism, the notion of two houses. It effectively just gave us another house like the House of Representatives where they didn't have to run as frequently, and the states lost their place at the federal table.

That was an assault, an invasion on the infrastructure of constitutional government. Even kings in Europe had to satisfy the princes and barons around them. And that's how they lost their power, or that's how their power was tempered. Congress believes it doesn't have to satisfy anybody. Its only recognized restraint is whatever it can get away with.

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  1. This debate will get bogged down in attempts to equate “states rights” with “racism”, which is total nonsense. The election of senators by state legislatures was intended to prevent both houses from being controlled by popular vote. It’s just another check on federal power. One that should never have been removed.

    1. that’s too preemptive, like ESPN defending “east coast bias” before anything is said.

      states don’t have rights. individuals do. I think it’s much better and removes a layer and adds representation. Jesse has a good idea

      1. I’m not being defensive, I’ve just heard this argument before. Making states more powerful in the federalist system–as they were intended to be–would serve as an added check on federal power. I don’t think repeal proponents are “states rights” advocates in the old sense; they just want to limit federal power, and this seems an obvious way to do that.

        1. If you really want to limit federal power in the Senate, abolish all the federal taxes, including Medicare and Social Security, and require each state legislature to reimburse Congress the money for ALL the federal tax dollars that pour into that state.

          Suddenly, bringing home the pork wouldn’t be so popular, because you couldn’t foist the bill for the pork upon other states.

          1. “”If you really want to limit federal power in the Senate, abolish all the federal taxes,””

            Government does need some money, which is why the feds have the power to tax in a limited way under article 1 section 8. I say repeal the amendment that allows income tax, and return fed taxes to only that which article 1 allows.

    2. This may sound good in theory, but in practice, it amounts to having a branch of Congress representing the few thousand politicians in state legislatures, who are generally quite a bit more statist than their constituents.

      Fivethirtyeight.com ripped into this idea, and gave this chart showing control of state legislatures

      Do we really want to have Democrats controlling 70% of the Senate?

      Do we really want to have people like Scott Brown to never serve in Blue states?

      1. I don’t know about every state, but many Democrats in Texas’ and Louisiana’s state legislatures are far to the right of any Democrat currently in the Senate. I don’t think that party identification is very useful compared against all State legislatures.

      2. Looking at that chart, we see that the Democrats would have the majority up until 1994, when the Republicans took it and would hold it until 2006.

        Just like happened with the House in real life. It would have an effect of magnifying swings somewhat, to be sure, but it would not be utterly different.

        In addition, if state legislators were voting on US Senators, it would affect party identification and state elections as well.

        The result would be in some years more Democrats, but more conservative Democrats.

        1. Well, no. You seem to be counting all the purple states as if they went Republican. If you split the purple states between parties, what you get is one election cycle where Republicans hold a slight majority, 4 election cycles where control is about even, and the rest with Democrats in control.

          There might be more conservative Democrats somewhat moderating what would likely be mostly one-party rule, but we’ve seen on the health care bill how Blue the Blue Dogs can be.

          1. You seem to be counting all the purple states as if they went Republican

            I was counting them halfway, in which case Republicans clearly have the majority in 1994, 2000, and 2004. 2002 looks even, and 1996 and 1998 look like slight Democratic control.

            This bar graph, at least from 1994 on, simply reflects who won that year’s elections. Before that there were much less Southern realignment, particularly locally, though the same shifts still occurred.

            It’s still not very different than what actually occurred.

            1. And besides, I don’t think very much of your argument if it depends on triviality like this. The state legislative elections would have been different if the law were different; this clearly demonstrates that the percentages would be quite similar and similar swings would occur in line with national elections.

            2. Another reason why it’s silly to argue over minutia is that under the actual pre-17th Am rule, Senators still served 6 year terms even if legislative power changed. (That’s why Marion Butler (P-NC) and Jeter Pritchard (R-NC) continued to serve even after the Fusion government fell.) So we would have to go through and look at which states had elections which years, etc. Pretty pointless if we only care about the general shape, but if you really want to argue about the times when it’s really close to 50%, you make it necessary.

              I’m also assuming that Nebraska is “split” since it’s officially nonpartisan and unicameral.

  2. My compromise: The people still elect their senators, but the states rather than the feds pay their salaries.

    1. That has always been my idea. The Senators are there to represent the states. It should be the states who pay them. Actually, I would make the states pay their Representatives to. And the States should collectively have to fund the entire Congressional staff as well. No member of Congress should have personal access to a single dime of federal money. That would go a long ways towards cleaning up Congress.

      1. except the states are broke.

        1. Oh well. Then I guess they can work for free. I think the states could find the money. If not, then they don’t get representation in Congress.

        2. In large part because they allow the federal government to rape and pillage our paychecks. There is little left for them to take. It has never made a any sense to me that money should be taken from the people, by the feds, only to be handed back to state and local governments. Think of all the waste involved in that process alone!

    2. Screw compromise. This isn’t about “states’ rights”. It is a recognition that the States have duties and responsibilities that are not the same as their citizens and should have a voice in the how these duties and responsibilities are shaped by the federal government. The defunding of highways to raise the drinking age would never have gone through. Nor underfunded Medicare/Medicaid “fixes” that only pushed off insolvency and forced the States to pay for federal initiatives.

  3. How about we repeal the 16th first and see how that goes?

    1. Repeal all of the Progressive Era amendments except for women’s suffrage.

      1. Well, OK, but we still get to beat them when they get uppity, right?

        1. You mean the Senate?

        2. You can try to beat them. You might find yourself on the wrong end of a beatdown, or find her taking a sudden interest in her Second Amendment rights.

          1. Don’t make me raise my pimp hand.

            1. Don’t make me raise my pistol.

  4. Okay, I’ll play: My compromise? Convert the Senate into a House of Lords. How do we populate this new house without an aristocracy? Sell titles.

    1. here’s $5, I wanna be the Duke of Beer.

      1. or Secretary of Partyin’ Down.

        1. How about the Marquis de Roque, or the Duc D’istortion?

    2. I like that. Can I be a Marquis? Or better yet, how much does it cost to join the Knights of the Conquest or the Order of the Garter?

    3. I hear you can buy “Senator of New Jersey” for a $2M donation to the mob.

      1. Lord of Flatbush?

    4. I’ll do it, but only with the title of Baron von Poopenheimer.

    5. I will only participate if I get to be the Ayatollah of Rock ‘n Rolla.

      1. Master of Disaster?
        King of Pain?
        Thrillah in Manila?

        1. Masterblaster?

          1. Who run Bartertown?

            1. Ike Turner.

        2. My backing band will have Carlo von Sexron on drums, obviously.

      2. Mario van Peebles is going to kick your ass. Especially when The Swede gets out of the brig.

        1. Shut your face, hippie.

  5. If repealing this finally kicks Schumer out of the senate, (I live in NY state) Im all for it.

    1. Seconded. (also a New Yorker)

      1. Thirded (also a New Yorker)

    2. Dittoes.

    3. With a heavy Democratic majority in the State Assembly, I doubt it. 🙁

  6. The idea was that the Senate had representatives of the states. It only makes sense that the state governments would choose their representatives in the Senate. I think you’d likley get a much higher quality of Senator if Senators were picked by legislatures. It’s unlikely you’d get an Al Franken that way.

    1. Yes you would. Because I’m good enough and smart enough and doggone, people like me.

  7. While I’m not convinced this would lead to “better” Senators, it would remove the perverse top-down power structure that has arisen in this country since the Progressive Era. Anything that reduces the power of the Federal Government is a good thing in my opinion.

    1. The quality of the senators wouldn’t improve, most likely. It’s just that their interests would vary somewhat from their counterparts in the House. Right now, the only real difference is the term.

    2. While I’m not convinced this would lead to “better” Senators, it would remove the perverse top-down power structure that has arisen in this country since the Progressive Era.

      I agree with this. Who cares if they are “better” Senators, it’s about the devolution of power. As it stands today, the states really don’t have any real power anymore, they’re just execution vessels for government mandates. There are no brakes on the Feds – once they want to get involved with something, they are, and the scope of state responsibility gets whittle down one more time. This needs to get fixed.

      Repeal 16 and 17 and 99% of our problems (at least with the federal government f’ing things up) will go away.

    3. The quality wouldn’t change much, but the their interests would. State politics would become much more important.

      As it stands, state politics have almost no influence on federal government, but if the 17th were repealed, the state level politicians would gain a lot of power.

    4. Do we as “the People” have good representation in the House. Power continues to accrete to the Federal Government. Why should we think that Senators, as representatives ot the States, would do any better at protecting the State’s interests?

      1. Largely because as the system originally worked, there was no set rule as to how the States would select their Senators. This also meant that States could remove Senators as well. With their jobs on the line Senators would have to pay attention to the wishes of their State’s assembly. If given the added impetus of having the States cover their salaries then even more pressure would be on them to tow the State line. As originally invisioned the states were soverign entities within the Federal framework and while one can debate whether secession was allowed there is not much room for debate that each State was to have the power to set its own laws and such so long as the limited restraints put in place by the Constitution (largely spelled out by the Bill of Rights). This made each state its own little “laboratory of Democracy”. Over the years this idea has been perverted, and while some would start the blame with Lincoln I place it more squarely on the feet of the Progressive Movement.

        1. Agree. But the fact that Representatives are up for election every two years and serve at the pleasure of the people doesn’t seem to have made them pay attention to our wishes.

        2. toe the line”
          “squarely at the feet”

  8. Fun to talk about in theory, but a complete waste of time and energy.

    The conflation of libertarianism (in its modern interpretation, anyway) with “states rights” is millstone around libertarianism’s neck. Fair or not, in the popular mind, “states’ rights” = “racism”.

    Every time libertarians talk about states’ rights as a good unto itself, it is giving the opposition the club with which to bludgeon us.

    1. It isn’t “state’s rights”, it’s “vertical checks and balances”. People still like checks and balances, right?

      1. People still like checks and balances, right?

        Checks & Balances just get in the way once The Right People Are In Charge. So my guess is ‘no’.

        1. Ok, umm… collective bargaining? I mean, it’s the same concept as unions, right? — a formal, organized representative body is a more powerful
          agent for the represented than each of them acting individually without coordination.

          1. “collective bargaining” = Unions = They’re Good!

            Now you’ve got a winner.

    2. Libertarians (real ones) don’t talk about states’ rights, because they don’t have any.

      1. Exactly. Why is it so hard to understand that people have infinite rights and governments have circumscribed powers?

        1. Um, years of painful exercise by the government to the contrary?

    3. Then we’ll switch from “states’ rights” to “federalism”. Problem solved!

    4. While the uniformed and those ignorant of history may believe this, it’s still no reason not to try to change things. The Federal government was, in its time, just as racist as any State government. Now with the post-Civil War amendments there are limitations in place to mitigate majority rule oppression aimed at any specific minority. So if the crushing power of the Federal government was to be scaled back, each state could go its own way (remembering that they are still bound to the limitations imposed by the Constitution). This would actually promote more liberty as their would be less national pressure for all states to conform to the “traditional family values” crap that many politicians claim to support. If Alabama wanted to ban gay marriage and abortion so be it because I’d be willing to bet that California and Massachusetts would legalize both just to stick it to the Conservatives. But the current political climate stifles State individuality by making all politics National. The expansion to absurdity of the Commerce Clause and the vast network of Federal Mandates, funded or unfunded, also work against States following their own course. States would win or lose based upon residents or corporations making rational decisions regarding whether they wanted to live in such a State. The market would cause a State to sink or swim and State legislators would either make changes or see their State become the backwater laughing stock of the nation. Mother Nature and the Free Market can both be real bitches, and I say that’s a good thing, especially if it screws over the racists and the statists at the same time.

      1. uhm you realize CA passed a constitutional amendment banning gay marriage, right?

  9. So long as we’re dickin’ around with the Constitution, I’d make the Chief Executive a committee of three persons. It would be more helpful to the cause of liberty plus easier to explain and justify.

    1. I nominate this guy. He can’t be any worse than what we already have.

    2. OK, but we get to call them triumvirs.

    3. And, I, I would add another branch: The Censor!

      1. “He’s a god now!”

        1. Baaaaa!

    4. And they could take turns acting as a sort of chief executive officer for the week. But all the decision of that officer would have to be ratified at a special biweekly meeting, by a simple majority in the case of purely internal affairs, but by a 2/3 majority in the case of more major matters.

  10. Took me a while to get all the history of this, why it happened, why it mattered, etc. etc.

    With that, alllll for repealing 17th. However, I believe the vast majority of people can’/won’t take time to understand it, and it’ll never happen.

    Sigh…one can hope.

  11. Wow, harkening back to the good old days of Europe when kings had to respect the power of hereditary nobility.

    True I wasn’t alive back then, but the country wasn’t some some libertarian paradise before the Seventeenth Amendment.

    Maybe giving the rabble too much power has its drawbacks, but I can’t see things improving so much if, say, the state legislatures of California and New Jersey were appointing Senators.

    1. Maybe giving the rabble too much power has its drawbacks

      Ahhh, except the only power the rabble really gets is to choose who screws them (while their rep is busy trying to screw the rest of the jurisdictions just a bit more than their own constituents.)

      So we end up with two separate houses of shiesters plying for the rabble’s vote on a continual basis.

      Yeah lotta power us rabble get there.

      1. Reps don’t screw the rabble. They screw the pages. Duh.

    2. Interesting point. What’s the difference between Californians electing senators versus the legislature of California versus the Nat’l Education Association or AFSCME?

    3. I don’t see any sort of argument here. To be consistent, Daniel, do you support abolishing the Presidency and going to a Parliamentary government?

    4. I must also assume that you’re opposed to life appointments for the Supreme Court or, indeed, the Supreme Court and judicial review at all.

  12. Whether to repeal the 17th amendment or not is an irrelevant debate. The 17th amendment merely ratified an inexorable trend of more and more states replacing state appointment of senators with direct elections. If the 17th amendment were repealed, every state in the union would maintain direct elections.

  13. Democracy is a system that works best when damped. The 17th removed an important damping mechanism in US government.

  14. Article V says that “no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.”

    A “State” is conceptually different from the “people” in the State, so I think that any State that did not vote to ratify the 17th amendment might have had a claim to legislatively-appointed Senators.

    However, their participation in the system of popularly-elected Senators probably counts as at least implied “Consent” by now.

  15. Repeal all of the Progressive Era amendments except for women’s suffrage.

    Effectively, that’s the Libertopia Prevention Amendment. Keeping it isn’t a good plan.

    But you can’t just let some people vote, so we have to replace elections with something else. Maybe SingStar Queen contests or cup-stacking time trials or Boggle tournaments.

    Women can win those, so there’s still “suffrage,” without their invariable bloc vote for cultic strongman figures and an ever-enlarging state. Win-win!

    1. See, I’d make all of those contests count as disqualifications for voting. Add to the list “Anyone who puts a non-comedic bumpersticker on their car.”

      1. Do my Center for Inquiry, James Randi Education Foundation and Reason window decals count against me, because I’m willing to lose them if they keep me from voting against our Congressional dillwads.

    2. Effectively, that’s the Libertopia Prevention Amendment. Keeping it isn’t a good plan.

      Why did not not Libertopia airse prior to the ratification of that amendment?

  16. C’mon. Do you really want me in NY and Chip Pearson in Georgia having such a big voice in who goes to the Senate?

  17. Repeal it? I’d rather improve on it:
    1) Eliminate elections for the House of Representatives; replace them with an Athenian style lottery. Double the number of Representatives to further reduce the impact of the occasional lunatic. Because minorities have a chance of representation equivalent to the proportion of the population, gerrymandering will have less impact (and minority views of all sorts will receive more representation). This will also effectively result in a one term limit for Representatives — they would always be faced with the prospect of living as ordinary citizens under the laws that they create.
    2) Make one Senator selected by the state, and the other directly elected by the people. As such, both Senators will represent the entire state. There will be no need for districts.

    1. The original constituent-to-representative ratio was something like 10,000 to 1. In today’s terms, that would mean a 30,000 person house of representatives.

      Of course, that would also throw the electoral college into a tailspin. We’d have to increase the number of Senators to 140, or at least the number of “automatic” electors to that.

      1. There’s no need to maintain the original constituent-to-representative ratio. There’s a lot of diversity in America, but you still get minimal marginal gains for every increase in size. 2 or 3 would be more than sufficient.

        You’re right about the impact on the electoral college, though. Might be better to leave the number of representatives alone, if only to avoid a hard sell to smaller states.

  18. While we’re at it, the Presidency should be the grand prize of a nationwide arm-wrestling tournament. See, the President would be too busy worrying about drinking motor oil and shit to be too much of a dick.

    1. What about a thunderdome tournament?

    2. If you’re going to hire goons for the purpose of bossing around armwrestlers, invest in decent goons.


  19. The states obviously wanted to give this power up since three-fourths of the number of states at that time voted for this amendment. Why would they want that power returned given no noticable clamor among the legistlatures for a repeal?

  20. “Can an amendment to the Constitution itself be unconstitutional? Yes, that one.”

    In other words, even if you follow the procedures for changing a document written two hundred years ago by a handful of slave owners and merchants, you still can’t change it. My interest in Judge Andrew Napolitano’s thinking just fell about 37 percent.

    Slave-owning semi-hemi-demi libertarian Thomas Jefferson said that the earth belongs to the living generation. I think Tom got it right on that one, pretty much.

    It’s odd, and interesting, that the Right, the Left, and the Libertarians all seem to be afraid of elections. The Right wants to make it hard to vote, fulminating over non-existent “voter fraud.” The Left desperately wants to ban campaign spending and free speech by “bad” people (and corporations). And now the Libertarians are arguing for getting the people out of the voting business entirely. State legislators! They’re the smart ones!

    1. And now the Libertarians are arguing for getting the people out of the voting business entirely.

      Wait — libertarians are also proposing to have state legislatures elect the House of Representatives? And presidents?

      1. We don’t elect presidents now.

    2. “Slave-owning semi-hemi-demi libertarian Thomas Jefferson said that the earth belongs to the living generation. I think Tom got it right on that one, pretty much.”

      And on that basis he also said: “Every constitution then, and every law, naturally expires at the end of nineteen years. If it is to be enforced longer, it is an act of force, and not of right.”

      So, you down with wiping out every law passed prior to 1991? I am!

      1. Every constitution then… naturally expires at the end of nineteen years…. So, you down with wiping out every law passed prior to 1991? I am!

        I think that would wipe out every law passed after 1808. Sounds good to me.

  21. The point is to distribute the power, not that state legislatures would produce some sort of Super Senator.

    1. Right. That takes years of tireless efforts by top men and millions, nay, BILLIONS, of dollars in congressional junket research.

      1. Billions seem so paltry these days. We need to research a new, more biggerer number.

        1. I propose the gagillion. A number so large, you’ll actually choke a bit on hearing it.

  22. They were appointed by state legislatures, filled with men of property and stature.

    I never understood this argument, and have never seen it in any of the founders’ writings. The founders would have assumed that state legislatures were going to be elected by the people directly, right? So wouldn’t there be as much danger of state legislatures being filled up with rabblerousers and factionalists who would vote one of their own into the Senate?

    It seems more likely to me that the purpose of having Senators elected by state govts was to prevent the feds from attempting to usurp state powers, something that every state legislature would want to avoid. But then I’m just a random wankerer so what do I know.

    1. Free advertising for Reason.com sponsor. From “The Library of America”, two volume set, “The Debates on the Constitution”. This was exactly the argument made by various supporters of the proposed Federal Government. The State Legislatures would choose somebody for the Senate that was a “person of property and stature” and had demonstrated the qualities that we now wish our Senators would display.

    2. Well, at the time the States were sovereign. They needed guarantees of their continued sovereignty.

  23. They were appointed by state legislatures, filled with men of property and stature.

    I never understood this argument, and have never seen it in any of the founders’ writings. The founders would have assumed that state legislatures were going to be elected by the people directly, right? So wouldn’t there be as much danger of state legislatures being filled up with rabblerousers and factionalists who would vote one of their own into the Senate?

    It seems more likely to me that the purpose of having Senators elected by state govts was to prevent the feds from attempting to usurp state powers, something that every state legislature would want to avoid. But then I’m just a random wankerer so what do I know.

  24. So the Tea Partiers want to pass a constitutional amendment that would have ensured the election of Martha Coakley rather than Scott Brown?

    1. I see that you’re stunned with admiration for their sense of principle and means before ends.

      1. Repeal would mean that Hawaii would NEVER elect a Republican to the Senate.

        Or Massachusetts. Or California. Or New York. Or …

        1. And on the other hand, the Dakotas would stop sending all those Democrats to the Senate.

          It actually wouldn’t make very much difference in the current partisan split, coming after a period of two very successful Democratic cycles.

          Hard to get the exact number because of the six year terms, but there would be roughly the same number of Republican senators as now, assuming that total legislative control means 2 senators from that party, and split legislature means 1 of each.

        2. The Republicans had a majority of state legislatures after the 2004 elections, and fell to a minority after 2006 and worse in 2008. It really wouldn’t be that different in total number, though it would change a few things.

        3. You’ll have to point me to all those Republican Senators from Hawaii, Massachusetts, California, and New York in recent years… Republicans have had a lot more luck electing Governors of those states than Senators, so if you gave the Governor a role in the process, it would arguably increase the chance of Republican Senators.

          Also, you’re ignoring that New York had a very long-term Republican State Senate majority, and presumably would have had 1 Republican Senator more often than in the current reality, so your example of New York is a bit backwards.

          1. You’ll have to point me to all those Republican Senators from Hawaii, Massachusetts, California, and New York in recent years…

            We’ve had one Republican Senator since statehood in Hawaii. The Democrats have had a deathgrip on legislative power the entire time.

            Massachusetts elected Scott Brown, despite a deep Blue legislature.

            I get the concept of checks and balances, but repealing the 17th only works if you also repeal the 16th. Otherwise, you’d have the statist bastards who tend to get elected to legislatures sending one of their own to grab as much pork as possible from the feds, making things arguably worse than now.

            Repeal them together, or make each state pay the entire tab for all federal money sent their way, then yeah, repealing the 17th would work.

      2. What principle is at work here?

    2. Are these the same Tea Partiers that are glad Rand Paul is kicking ass in KY? Cuz he’d have a snowballs chance in hell if state legislators were sending one of their own to DC.

      There is a time and place to make an argument for something you believe in, and there’s a time to concentrate on the things that are most likely to make you successful short term so you can be at the table to advocate long term positions. In other words, R’s and D’s hold positions of power, despite their stupidity, because they are good at winning the short term contests we call elections.

      1. Isn’t that exactly the argument for switching to state elections of senators?

        To remove them a bit from the political process.

        1. A one time candidate like Rand Paul can win an election, but there’s no way he’d get chosen by the many elected legislators from a given state. I think the 17th is bad but going back 100 years to the attitude of Senators prior to the 17th is not likely, nor would the legislators treat their chosen two as anything other than someone who needs to bring home that federal bacon.

  25. Might improve things a bit, but it doesn’t fix the fundamental problem with the United States: the scale of the country is too big. It’s much, much bigger than a functional geographic territory needs to be. That great pile of money and power in Washington attracts, well, the kind of unseemly people that would be attracted to that scene.

  26. Andrew Napolitano is no more a constutitional expert or American historian than Nancy Grace. Who cares what is his opinion is on the 17th Amendment?

    1. As a former judge, he is a hell of a lot more qualified than you. More importantly since when are appeals to authority counted as argument. Who gives a shit what his qualifications are. What matters is the quality of his opinions. If you have something of substance to say about that, then say otherwise. Otherwise you are just being an elitist piece of shit screaming that he doesn’t have a license to hold an opinion, which since you are a liberal is no doubt SOP.

      1. You’re just jealous because Mr Smith gets to go on the Reason Love Boat cruise. I personally had to pass the opportunity up because I couldn’t spare the $350 they wanted for a reservation in “bilge class”.


    3. I just finished reading Napolitano’s “Lies The Government Told You”, and while I agreed with most everything else, I thought his argument re: the 17th didn’t hold water. The explosive growth of government at that time was due to the 16th and the rise of the Progressives.


  27. “Can an amendment to the Constitution itself be unconstitutional? Yes, that one.”

    Nope, not that one. Napolitano is wrong. Article V:

    “…which in either case, shall be valid to all intents and purposes…Provided that no Amendment which may be made prior to the Year 1808 shall in any manner affect the first and fourth clauses of the first Article, and that no state, without its consent, shall be deprived of its equal suffrage in the Senate”

    Madison’s notes aren’t part of the constitution.

    1. no state, without its consent, shall be deprived of its equal suffrage in the Senate

      This just means that the every state will have the same number of Senators as every other state, unless they consent to having fewer. It doesn’t say anything about how Senators are appointed/elected.

      1. Exactly. You can’t change the fact that each state has to have the same number of Senators, but you can change how they are chosen. Therefore, the 17th amendment is constitutional, and Napolitano is wrong.

  28. I don’t see the point behind this at all. Make an undemocratic, elitist house of congress even more undemocratic and elitist, but with more Democrats? How does that further the tea party cause? I say abolish the Senate.

    1. Yeah, lets make it easier for the national legislature to push bills through-to-law.

      I say we need 10-15 MORE houses of congress. HELL, direct popular vote on everything, with 99.9999% majority required to pass a bill. I’d like to see anything become Law then!

      1. I don’t get libertarians. You want literally the worst possible society, then scoff when others don’t agree with your infinite wisdom.

        1. Yes, a completely free country is literally much worse than North Korea or Cuba or China under Mao or Soviet Russia or …

          You need to show your work if you want to be taken seriously.

          1. At least dictatorships can get shit done. A society in which nearly everyone has to agree in order to do anything is one that collapses pretty quickly.

            1. Even in a purely consensus-based democracy, everyone doesn’t have to agree to “anything”, only those things that would infringe on the rights of the people, as understood or established in the democracy. The day to day business of life could be accomplished by individuals without oversight or intervention.

    2. You gotta worry about whether you’ve thought things through all the way when Tony starts making (some) sense. But, I agree with everything but the last sentence.

      Abolishing the Senate would be a terrible idea. It would make it much easier to quickly ram bad bills through, rather than giving the other chamber a chance to say WTF to the groupthink going on in the first chamber. And if you don’t think that groupthink isn’t a problem, you haven’t spent much time in close proximity to legislatures at “work”. A whole lotta Stockholm Syndrome going on in those places.

      What we need is about 10 chambers rather than only 2, representing all sorts of different slices of the populace, so it would be really, really hard to get ANYTHING passed.

      1. Should read: “And if you think that groupthink isn’t a problem in legislatures”

      2. Yup. Maybe one chamber with only the power to repeal laws. And another with only the power to pass proclamations and National Whatever Days, to keep the busiest of the busybodies busy.

      3. Abolishing the senate would just give bigger states have more power over smaller states.

      4. Well, you could always go with that French solution after the coup of 18 Brumaire, the one with three parliaments: the Council of State which drafted bills, the Tribunate which discussed them without voting them, and the Legislative Assembly which voted them without discussing them.

      5. What we need is about 10 chambers rather than only 2…

        How about 0 instead of 2? Don’t we have too many laws already? When has the Congress done anything except make things worse?

    3. I say abolish the Senate.

      As long as we abolish the House, the Presidency, and the Supreme Court along with it!

  29. I agree w/ Tony, why would the Tea Partiers want to give up the right to vote for their Senators? Weird.

  30. Where’s the debate? I don’t get it.

    The argument for repealing the 17th amendment has never made any sense to me. Does that not just make the government less accountable?

    1. No, it makes the federal government accountable to the States.

      The federal government is already accountable to the voters, through the House.

      It was originally designed as a federation of semi-sovereign states. That concept has been lost. Whether its loss is causative, or a mere coincidence, with the enormous growth in the national government, is a subject of dispute.

      1. Causative. When you have essentially two House of Representatives with the same goal of successful popular election, De Tocqueville’s prediction regarding mob rule and democracy will come true. The Founder’s knew this.

        1. Further more the idea that Senators HAVE to be elected by the people runs counter to many of the governmental principles that the Founders intended this nation to be built upon…State sovereignty, checks and balances, separation of powers, limited role of the Federal government and especially the idea that some positions governmental positions should be by appointment in order to allow for increased autonomy for said position. To say that Senators Have to be elected is not much different from demanding that the Secretary of State or a Federal Judge be elected. But doing so runs counter to the intended roles of these positions.

  31. This sounds similar to what we have in Canada, where senators are (effectively) appointed by the Prime Minister. Of course this means the Senate is little more than a dumping ground used for rewarding party hacks who’ve paid their dues. In theory the fact that they don’t face the electorate should make Senators willing to stand as a counterweight to the whims of the elected representatives, but in practice they simply tend to support the blinkered statist ideology of whichever PM got them there.

    You dance with the one that brung you, etc.

    1. That’s entirely different. Canada’s system is similar to as if the President or Speaker of the House appointed Senators. That’s very different from the provincial leaders appointing Senators.

      Or did Mulroney get everything he wanted at Meech Lake and Charlottetown?

      1. Also, an appointment to the Canadian Senate is for life.

        That makes Canada’s Senate more like the House of Lords, though for most of its life it had even less power than the lords do.

        It is seen, as Bradley said, as “a dumping ground used for rewarding party hacks who’ve paid their dues.”

        The six year rotation in the US together with the fact that the Senators would be appointed by fifty different legislatures or governors, would keep the Senate from becoming anywhere near as hidebound.

        Include me in the repeal the 17th camp. But I will point out, as did commenter dellis, above that before the 17th was passed there were already states where senators were chosen by direct election (Oregon, for one), and IIANM the number was increasing.

        1. But I will point out, as did commenter dellis, above that before the 17th was passed there were already states where senators were chosen by direct election (Oregon, for one), and IIANM the number was increasing.

          Yes, and I believe that they got around the Constitutional requirement via a method similar to the Alberta “Senators-in-waiting” idea, only really binding, of having the election be for a candidate that the state legislature was then bound to select.

        2. I thought Canadian Senators had to retire at 75.

      2. Actually, Mulroney got just about nothing out of Meech Lake and Charlottetown.

        1. Yes, that was my point. Meech Lake and Charlottetown involved negotiation with each provincial leader, and Mulroney did not get much out of it. If the Canadian Senate were appointed by each provincial leader, the Senate would be far different from a rubber-stamp for the appointing PM, but would create the same sort of headaches for each PM as Meech Lake and Charlottetown did for Mulroney.

          I thought that was obvious.

  32. I’ve got a better idea: abolish the legislature. No law should pass if even a single person it pertains to objects to it.

    1. I object to that idea, thus rendering it dead.

      1. You’ve got your causality confused.

      2. Dumbass.

  33. Isn’t states’ rights just about the people of a state having power to rule themselves, so that California doesn’t have too much say about what’s going on in Wyoming? Because a state is a smaller entity, and therefore the people will be better represented?

  34. Somebody please explain the difference between “the market” and “mob rule”…


    1. Mob rules tells you what to do. The market gives you choice. You can buy or not buy…you can sell or not sell.

      Mob rules tells you what color you can paint your house while the market supplies you with so many colors of paint that your mind boggles.

    2. I don’t know about you, but Coca Cola never came to my house with a gun and forced me to drink it.

    3. I don’t know about you, but Coca Cola never came to my house with a gun and forced me to drink it.

    4. They are kind of related, but not in a straight forward way.

      The market is governed by supply and demand where supply reacts to the demand. Mass psychology can be considered as part of the equation for demand – look at the iPod or something. A product’s popularity might because it’s genuinely the best product, or it might be because everyone else is buying one – fashion is driven by mob rule.

      I generally associate mob rule with tyranny of the majority – “run with us, or you get trampled.”

      The rules that govern are mob are largely unknown and unpredictable. At least with a free market, everyone knows the rules – profit – and try to predict outcomes accordingly. Though the market isn’t compassionate, neither is the mob.

  35. I really do not see how this would fix anything.

    States rights only look good when they protect individual liberty and always look bad when they do not.

    it is not as if states rights has been a great boon for libertarianism. In fact i would say the record for states rights in regards to liberty is batting at less then 500.

    1. How else are we to limit federal power?

      It seems people have lost any kind of state identity. No one describes themselves as a Virginian anymore.

      If Senators represent the state, then the state should be able to decide how the senators are selected. I guess that would technically apply to the representatives as well, where the representatives represent the quantity of people within the state, and the senators represent the state itself.

  36. JT, that’s part of the equation, but we’re talking the state’s relationship with the federal government.

    The ability for states to choose how to elect their senators is a good one.

    My understanding of it is that the House was to give states with large populations power, while the senate was to give states with small populations equal power the large ones. That way, the small states don’t have to submit to the will of the larger ones, and the large states have a proportional representation by numbers.

  37. Im shocked that Tea Party Activitists are intelligent enough to know what bicameral legislatures were. That’s a pleasant surprise

  38. I don’t think repealing the 17th would solve everything, but IMO, it would help. Those seanators would almost certainly be a LOT more responsive to their states needs than they are now to the public. After all, they would only have a handful of people that vote for them. So when one of them called up, they would be more likely to listen.

    This would reseperate the powers of the federal government a bit.

    It’s important to remember that we are a republic NOT a democracy. Our government was deliberatly created with competing branches to limit government power, and slow down changes.

    In the end the voters are still in control, but by creating a republic instead of a democracy, the hope is to slow down or halt the worst parts of mob rule.

    Another thing that might help would be elimating people that recieve government assistance from voting. I think I would include public empoyees in that category (at least for the category of government where they work).

    1. Mob rule and majoritarian tyranny sound like theoretical issues right now, from where I stand. The problem with the republic is that it can hamstring the people enough that their government is only accountable to them with great effort — which means that things will get pretty bad before they make the effort to effect the necessary changes to protect themselves. Right now Congress seems to favor various minority groups (special interests) over the ordinary citizen, who can’t typically afford a K Street lobbyist.

      Without transparency and accountability, even the limited power afforded the night watchman state will be abused by society’s rulers.

    2. I kinda agree with that but it becomes more blurred these days with all the private/public partnerships. Voting your job has always been commonplace. Should employees of military contract companies vote? What about bailed out banks?

  39. I can’t think of anything more useless than debating the 17th Amendment.

    1. I can: asking someone how they would have voted on the Civil Rights Amendment.

      1. s/Amendment/Act

    2. Debating the Third Amendment

  40. Call me old fashion but I have no problem with repealing the 17th, removing restrictions on whom the electorial college can vote, and ending the citizens ability to vote for the President.

  41. Anyone who thinks the state legislatures would have picked different candidates than the political parties have been picking all along is dreaming. At least with the popular vote, we have some slim chance of electing an outsider (e.g. Rand Paul) when people get really ticked off once in a while.

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