Today in Supreme Court History: May 13, 1912

5/13/1912: Seventeenth Amendment is approved by the House of Representatives. The Senate approved it the prior month. The Seventeenth Amendment was ratified in 1913.

Comments

[Commenter_XY]

One of the worst amendments ever passed into law. It completely destroyed the balance between the federal government and the states. The best thing we could do is to repeal it.

[Dan Schiavetta]

Tell us the reasons given in favor of the amendment and why those reasons are no longer valid (or weren't valid in the first place).

[Sarcastr0]

This is received wisdom on the right, but I don't think it's very well supported. Look at statehouses these days; there is no evil repealing the 17th would prevent.

[Commenter_XY]

The Founding Fathers would strongly disagree = This is received wisdom on the right, but I don’t think it’s very well supported.

[Sarcastr0]

Oh come on. By that logic, all post-Founding Constitutional Amendments are bad.

[Commenter_XY]

No Sarcastr0, that is not the case. The Founders debated the nature of the Senate extensively. They were rightly fearful of too strong a central government. As an example, I don't have an issue with the 12th - 15th amendments. I would love to repeal the 16th (heh, heh).

Passage of the 17th amendment completely disrupted the balance of power between federal and state, and heightened the influence of the major political parties. That was a huge error.

[Sarcastr0]

I still think you're begging the question. The 17th did change the balance of power, I don't know that it disrupted it anymore than the 14th upset it.

I also don't see that political parties would have any less sway in a less democratic system, given how much more sway they have in state legislatures now.

You may be correct; hard to speak to the counterfactual. But thus far you're providing more ipse dixit than evidence.

[Commenter_XY]

Yes Sarcastr0, the 17th amendment did change the balance of power, that is my point. I am happy we agree on this, because we both know it to be objectively true. Passage of the 17th amendment unforeseeably and negatively strengthened the Federal government at the expense of state power, in my view. If you look at how the scope and power of the federal government has increased since that point, I truly struggle to see how you can reach any other conclusion, from a logical perspective.

Passage of the 17th amendment has had a pernicious effect on the Republic. I don't want the petty and small political party warfare in DC like we have now. I don't think you do either. I mean, if you're going to have a political dispute, at least make it important enough to count. Which leads me to my next point. I also think the repeal of the 17th amendment would significantly change how political conflict in DC is viewed. Think 'geography' dispute instead of 'party' dispute. Qualitatively, that is a much different kind of disagreement, and perhaps far less acrimonious.

Last, I believe that spending would be far more restrained in a Republic that repeals the 17th amendment.

[LawTalkingGuy]

The Founders insofar as they agreed everything in the Constitution was good (they actually didn’t) also thought a lot of terrible things were good. So the mere fact that they might disagree about the structure of our modern government isn’t super useful.

[Dilan Esper]

Also, by the time the 17th Amendment was passed, many states elected their Senators anyway. The Amendment locked in a consensus that was emerging anyway.

[Dilan Esper]

I should add, I suspect with no 17th Amendment we would have ended up with directly elected Senators in every state.

It's ALWAYS popular to give voters more power. That's why legislators were moving away from appointing Senators in the first place. It was the sort of issue legislative candidates would run on. "I will give you more power and take away power from those politicians!"

The fundamental problem conservatives who don't like the 17th Amendment face is it just isn't popular to have state legislatures appoint Senators. Even if we repealed the 17th, no state would switch.

[LawTalkingGuy]

I can think of a few legislatures that might try. But you’re right that it would ultimately fail.

[Brett Bellmore]

Yes, that's why I've proposed, as an alternative, that some of the Senate's current powers, (Primarily confirming nominees.) be transferred to a new body, not *selected* by the states, but consisting of designated state officers. Possibly governors, or Lt. Governors, but the important point is that they would actually be officers in the state government, would derive the lion's share of their power from that job, and thus would be motivated to defend state prerogatives in the execution of their federal duty.

It seems to me this would achieve the purpose of the original federal Senate, without the easy failure mode the actual federal Senate fell prey to.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I have seen many discussions of the 17th which say that many states had already converted to popular election, and that even those which hadn't were not changed much.

The problem with the mythical checks and balances is that government bureaucrats look out for each other. Just as sailors and Marines will fight each other but unite against soldiers or flyboys, so will politicians unite against the public and any perceived common enemy of government, such as businesses.

A much better check on the national government would be to allow repeal of laws by a majority of state legislatures. Not like South Carolina's nullification within their borders, but full repeat if a majority of state legislatures (without needing the governor's signature) so vote.

[apedad]

So you'd give Wyoming, Vermont, and Alaska (the least populated states), an equal vote with California, Texas, and Florida (the most populated states)?

Nice try...

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

At least I proposed something. What is your alternative? "Nice try" doesn't say much useful, and as for your whine about state populations, that is already in the Constitution.

[CJColucci]

Proposing something assumes that there is a problem to be solved. That remains to be shown.

[Commenter_XY]

The 'Compact Theory' of government was rejected, alephbet. How is what you propose much different from the amendment process?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Because it applies to individual laws.

[Commenter_XY]

Yeah, that was definitely rejected by the Founders. We had what you are talking about under the Articles of Confederation. Not that the AoC (interesting letter combo, heh hehh) was a bad government. It was not. But we changed it to a Federal Republic.

[LawTalkingGuy]

And then what would happen? What state population would give up their ability to elect their senators to their likely gerrymandered state legislatures? I could see the legislatures in a few states trying to take that power back, but I don’t think the voters would support that at all.

[Commenter_XY]

LTG....I think you might be surprised. Once the first one makes that move successfully....then it gets easier. But getting that first one would be a herculean task, I admit.

I could foresee states like CA or SC trying to make a run at it.

[CJColucci]

When the 17th Amendment was proposed and eventually enacted, large numbers of people said, correctly, that it would be a change from the original plan. That was, of course, true, and trivially true. To the extent that they gave reasons for the original plan, the people rejected them. As far as I can tell, most proponents of direct popular election did not deny that the reasons were true, they just didn't care if they were true or not and wanted the right to vote directly for Senators regardless.
No one now living has ever experienced any other way of selecting Senators than by direct popular election, and, as far as I know, no substantial number of Americans wants to be deprived of the right to vote directly for Senators. I am aware of no popular clamor to have state legislators pick them, and knowing what I know of state legislators, I am not surprised. If you want to repeal the 17th Amendment, you will need a better explanation that: "It used to be this way, dammit."

[LawTalkingGuy]

The Founders insofar as they agreed everything in the Constitution was good (they actually didn’t) also thought a lot of terrible things were good. So the mere fact that they might disagree about the structure of our modern government isn’t super useful.

[LawTalkingGuy]

Whoops. Meant to post this up thread.

[Brett Bellmore]

Still not "Supreme Court" history.

[LawTalkingGuy]

It would be if he explained whether and how direct election of Senators changed the Supreme Court confirmation process. But then again, history isn’t really the point of these posts is it?

[Brett Bellmore]

It's all history, my general complaint is that it's mislabeled history most of the time, often having little to nothing to do with the Supreme court.

[Sarcastr0]

Still the most engagement these roboposts have gotten in a while.

[Commenter_XY]

I wish there was more positive, spirited engagement. But this was fun today, Sarcastr0.

[rsteinmetz]

The direct election of Senators lead to the loss of much the influence the states had on the Federal Government. That some or many states had already decided to directly elect Senators was not particularity relevant since the states could have changed their method of selection if they had wanted to.

At the time the Federal Government was not the intrusive behemoth is now. That developed largely from the 16th Amendment which was also ratified in 1913.

[CJColucci]

That's the theory, anyway, but I've never understood how legislative selection of Senators protected the interests of states as states in practice, or how it would do so today if reinstated. The party that controlled the state legislature would pick one if its party hacks, who might, accidentally, be a man of distinction, to be a Senator. If he (or they) had any views on the interests of states as states, they would probably be whatever the mainstream view of the dominant party was. Whigs would want a more active federal government, Democrats would want one less active (slave-catching aside). Unless the state was severely gerrymandered, the selection would roughly reflect the views of the voters, to the extent that had views, in any event.
If we reinstated legislative selection, there might be some partisan change in severely gerrymandered states--the cynic in me thinks this is the point--, but, given the nature of state legislators, I see no reason to suppose there would be a systematic favoring of the interests of states as states v. the federal government.
There must be some serious literature on the subject. Does anyone know of any?

[Brett Bellmore]

Federal elected officials have party loyalty, so do state elected officials, but the difference is that the former serve their OWN interests by visibly exercising power at the federal level, while the latter do it by visibly exercising power at the state level.

So even as members of the same party, they'd have conflicting incentives in regards to the balance of power between state and federal governments.

[CJColucci]

So by what mechanism will a bunch of political hacks chosen by another bunch of political hacks have different views on the balance of state and federal power from the views that the political hacks' constituents want them to have? Many Senators cut their teeth as state legislators. Why will they be systematically more inclined to favor state power over federal power when -- gerrymandered states aside -- they are likely to be the same people no matter how they are selected?

[LawTalkingGuy]

So I get the idea that Senators need to represent the interests of their state as a whole. But what I don’t get is why today those interests are embodied by the state legislatures as opposed to the voters directly. The legislature isn’t going to be unanimous on who the Senator should be so it’s not like it has some actual collective consciousness about the state’s best interests. Also the legislature will change composition during the course of one Senator’s term and may select the other Senator who may have diametrically opposed views. So who is really representing “the state” in that case?

[Brett Bellmore]

The idea, originally anyway, was that the House represented the interests of the people, while the Senate represented the interest of the states as governments; The Senators were supposed to be state governments' representatives at the federal level.

This was supposed to preserve separation of powers between the federal and state governments.

[LawTalkingGuy]

Even so there is no wholistic state government interest, since they are typically structured the same as the federal government. You could have a divided legislature itself or a division between the executive and the legislature. And the state judiciary could have views diametrically opposed to them as well. So they really don’t represent the government per se either, if the other branches don’t have a say.

[Brett Bellmore]

The chief interest they'll have in common, is the allocation of power between the federal and state governments.

[CJColucci]

Why?

[Commenter_XY]

LTG, appreciate the great questions. As to your last, the Senator. S/he can be recalled by the Legislature if they do not represent the state's interest to the satisfaction of the state legislature.

I don't think we are well served with the Senate representing a Party's interest. Better they represent the interest of their state, IMO.

[CJColucci]

And how, practically, does that work? How did it work before the 17th Amendment?