Abstract
Most amendments to the United States Constitution offer helpful additions to an otherwise thoughtfully crafted system of government. Of the twenty-seven times the Constitution has been amended, only a handful have fundamentally altered the framework of government. The story of the Seventeenth Amendment represents such an alternation by calling for the direct election of Senators. Appreciating how Senators are elected, and why the original constitutional design changed, is essential to understanding our nation.
***
Rancorous discussions during the opening days of deliberations nearly derailed the process as it began. In those intense days, determining the power, scope, composition, and function of the legislature presented the “gravest problems” in drafting the Federal Constitution.[1] Finally, on August 6, 1787 the delegates to the convention accepted an initial draft.[2]
At the outset, the delegates agreed on a bicameral legislative branch of government. Years of study, debate, and experimentation in the various state legislatures expedited the process by narrowing the options. One chamber, they determined, would consist of refined and distinguished characters resembling the British House of Lords.[3] The convention concluded this chamber required safeguards from public impulse. After three contentious days, and weighing various considerations, the Framers[4] finally agreed the state legislatures would elect the members of the upper chamber. That chamber became known as the United States Senate. [5]
The other chamber of the federal legislature became known as the House of Representatives, comprised of members elected directly by the citizens.[6]
Over the following weeks, amidst stifling Philadelphia heat in the summer of 1787, a series of debates and compromise regarding the legislative branch resulted with the framers agreeing, in relevant part, to the following:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.[7]
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.[8]
***
Despite the Framers’ diligence crafting the legislative branch, it is not as revered as they dreamed. Only 19% of Americans approved of Congress in September 2018 and since 2010, the approval rating for congress has rarely inched over 20%. A downward trend has been evident for a very long time.[9] According to Gallup, only 15% of Americans approved of Congress in December 2020.[10]
Recently, the United States Senate has proven exactly why the American people disapprove of Congress. Nasty Supreme Court nominations, bullying by the President, endless “nuclear” threats over ending filibusters, and outrageous spending on smear campaigns, have become the watchword of the day. Impeachments, too, have become a theatrical performance void of sacred responsibilities. [11]
Is Congress is broken? If “government of the people, by the people, for the people”[12] lives, then the ailments in the United States Senate must be addressed. The House of Representatives, to some degree, was designed to be spirited and at times dysfunctional. The Senate is supposed to be the voice of reason.
This paper encourages a national conversation regarding the method of electing U.S. Senators. It does not necessarily advocate repealing the Seventeenth Amendment, but uses it as a way of studying the Constitution. There were many unintended consequences of passing the Seventeenth Amendment, many of which are examined herein. There is much to be learned about the Constitution by better understanding the Seventeenth Amendment. Conversations about the Constitution inevitably lead to discussions about other ways to strengthen our country, such as campaign finance reform, altering election law, reducing national party control, and minimizing special interest.
In the end, studying the Constitution, our most sacred document, is healthy and good – particularly understanding how Senators are elected.
Outline
I. Surveying Issues and History
A. In the Beginning
B. The Federal Constitution
II. The Framer’s Intent
A. State Sovereignty
B. Federalism
C. Bicameralism
D. Limiting Government
E. Factions
F. Quality State Governments
G. A Deliberative Body
H. Political Theory
I. Federal Courts
J. Virtues
K. Conclusion
III. The Senate From 1787-1913
A. Prior to the Seventeenth Amendment
B. The Passage of the Seventeenth Amendment
C. Accomplishments of the Seventeenth Amendment
IV. Impact of the Seventeenth Amendment
A. Are the States Sovereign?
B. Federalism, Not Feudalism
C. Bicameralism Versus Special Interests and Corruption
D. Is Limited Government Possible?
E. Controlling Democratic Factions and Passions
F. Quality and Strength of State Government
G. Reviving a Deliberative Body
H. Realizing the Past Through Political Theory
I. The Senate’s Shaping of Federal Courts
J. Inspiring Virtues Public Servants
K. Money, Money, and More Money
L. Is America Too Democratic?
M. Distracted Driving: Put Down Your Campaign and Lead
N. Concluding Reflections
V. Praise for the Seventeenth and Problems with Repeal
VI. Closing Thoughts
I. Surveying Issues and History
“What makes the Constitution worthy of our commitment? First and foremost, the answer is our freedom. It is, quite simply, the most powerful vision of freedom ever expressed. It’s also the world’s shortest and oldest national constitution, neither so rigid as to be stifling, nor so malleable as to be devoid of meaning.
Our Constitution has been an inspiration that changed the trajectory of world history for the perpetual benefit of mankind. In 1787, no country in the world had ever allowed its citizens to select their own form of government, much less to select a democratic government. What was revolutionary when it was written, and what continues to inspire the world today, is that the Constitution put governance in the hands of the people.”[13]
– Sandra Day O’Connor
United States Senators, prior to 1913, were “chosen by the Legislature” of their respective states.[14] The Seventeenth Amendment to the United States Constitution radically changed the selection of United States Senators and the way the Senate functions by allowing citizens to directly elect Senators.[15]
This paper investigates the impact of the Seventeenth Amendment.[16] First it explores the relevant history of the Constitution and the founding of the United States as it relates to the Senate. Then it turns to the reasons for the passage of the Seventeenth Amendment before addressing how the United States Senate, and the country, have been impacted by its passing. Lastly, it brushes on contemporary legal issues and potential modifications to existing law, hopefully widening the ocular by providing fresh light and new perspectives.
A. In the Beginning
In the beginning, the country was governed by state governments and the Articles of Confederation.[17] The state governments of the former colonies were the predominate governing agencies, while the Articles of Confederation bonded the states together from 1781 until 1789.[18] The initial national charter not only stabilized the fledgling nation following the war, but instituted fundamental principles of government. The Articles of Confederation, however, differed from the existing Constitution. Notably, the Articles of Confederation 1) served as a loose alliance or “friendship” between states, 2) gave state governments paramount authority, 3) limited central government, 4) employed a unicameral legislature,[19] 5) lacked an independent executive resembling our President, and 6) failed to vest the federal government with the power of taxation.[20] Accordingly, the Founders hoped to stifle tyranny, a fear grounded on the history of Greece, Rome, Europe, and recent record with Great Britain.
Given the time frame in which the Articles were debated, the pressing issue was winning a war with the greatest military in the world. The aim, therefore, was getting something together, not necessarily the perfect system. After the War for Independence, it became clear the Articles of Confederation was not sufficient to govern the new nation. Controversially, a convention convened in Philadelphia between May and September of 1787 to discuss a new Constitution. As it turns out, the delegates to the convention did much more than merely discuss government.[21]
Seizing an opportunity, the men of Philadelphia thrust upon the American nation a new government commensurate with the highest ideals of human ingenuity, not only for their time, but of all time. During the summer of 1787, a number of seemingly impassible ramparts stood between the Framers and the creation of a Constitution to better serve the principles of the Declaration of Independence. The mightiest of these was the formation of a suitable legislative branch of government. After accessing many plans and options, compromise was finally reached and the first draft accepted by the convention on August 6, 1787.[22] It is often written that the Constitution is a bundle of compromises, none greater than the “Great Compromise,” which paved the way for agreement regarding the legislative branch and the framework for the entire government.[23] After intense debate, the states ratified the proposed Constitution in 1789.[24]
Adding to the long catalogue of human civilization, the Revolution and the subsequent United States government departed from the way government had ever worked. The Founders’ experiment in government “radically” altered fundamental aspects of western civilization and society, including the way people thought, behaved, and interacted with government. Overnight, the American republic generated “the most liberal, the most democratic, the most commercially minded, and the most modern people in the world.”[25]
Broadly speaking, the Declaration of Independence, Articles of Confederation, and new Constitution shared faith in notable doctrines. Of the doctrines upon which the nation was founded, three require attention.
First, the nation was founded as a republic. According to James Madison, a republic is a nation where citizens elect representatives to govern.[26] It is useful to think of republicanism as much broader than simply a structure of government because it encapsulates many social, cultural, and economic values. Republicanism promotes morality, virtuous leadership, liberty, equality, consent of the governed, and economic freedom.[27]
Madison insisted a republic is favorable to direct democracy for numerous reasons. Notably, a republic is better able to 1) discern the long-term best interest of the nation, and 2) limit the power of factions and overly zealous groups from trampling the rights of others.[28] The second of these points received great attention as the Framers diligently worked to reduce the “violence of majority factions.”[29] Benjamin Franklin provides insight as well. Supposedly a group asked him what kind of government the convention designed, to which he mused, “A republic, if you can keep it.”
Democratic principles feature prominently in American government as well. A democratic government derives authority from the consent of the governed.[30] Democracy, like republicanism, sprawls throughout every faucet of life. When democratic principles mixed into colonial society it transformed religion, government, economics, and social organizations like family. Each melted away many hardened structures of the past.[31] The novelty of creating a more egalitarian nation than had ever been formed underscored the importance of democracy.
Combining republicanism and democracy, the United States enjoys flexibility within an iron frame. Like an estuary of ancient and modern principles, the United States is both a representative democracy and constitutional republic, and various other ideas as well. A fundamental idea is that people and government working together establishes an inseparable bond between the two. Public servants, elected or not, labor on behalf of the public. The public participates in various ways, offering consent and ideas beyond the ballot box. United States government is a well-traveled two-way street.
Lastly, the Framers placed significant limits on the centralizing tendency of governments. At the time, the Revolutionary Era altered long established traditions of government and life. Some of the more prominent skins the Revolutionary generation shed were monarchy and paternalism, which were deeply entrenched in the minds of people for many generations.[32] Weaving a seamless system of state sovereignty, federalism, separation of powers, and checks and balances into the delicate fabric of the nation enriched essential principles of the American Revolution and prolonged self-government.
Balance defines the Framers’ mark. Balance between tyranny and direct democracy, balance of national power between three branches of government, and balance between national and state government. Extremism was the primary foe. The entire exercise balanced extremes, layering counterbalances on top.
B. The Federal Constitution
“All legislative Powers shall be vested in a Congress,” begins Article I of the United States Constitution.[33] Legislative power, accordingly, is the power to create laws “for the regulation of society.”[34] Article I continues by defining the character of a bicameral legislature.
The House was devised as the “People’s House” responsive directly to the citizens. Two-year terms encourage members of the House to continually run for office, so the positions of House members reflect the opinions of the people in their districts. The age required for serving is younger than Senator or President. Most telling, the House is elected by the people directly through proportional representation.[35]
The Senate, on the other hand, with six-year terms and answerable to the state legislatures was a more deliberative body. Two Senators per state indicates it is not designed to reflect the voice of the people, but the interest of the state.[36][37] “The qualifications proposed for senators consist in a more advanced age and a larger period of citizenship,” Madison explained, because the “senatal trust” requires “greater extent of information and stability of character.”[38] It was, in other words, not designed to answer the whims and passions of people. The Senate should think, reason, deliberate, and vote based on the best interest of the nation, not the best interest of being re-elected. Sound judgment was intended to be the compelling force. The Senate also serves as an enormous check on the Executive Branch because Senators have “advice and consent” powers and the power to remove the President and other officials.[39]
The Framers evidently intended the House and the Senate to share legislative power, but operate differently. The two were never intended to be the same. Simply put, the House inherently echoes the voice of the voters, while the Senate maintains a deliberative nature, deploying its powers for the best interest of the nation.
The refrain, “Reason must be our guide,” rings loudly throughout the Constitution and other founding documents.[40] Passion, like wind to a forest fire, fans uncontrollable destruction when unattended. Likewise, democratic government requires watching over those harnessing the wind.
The Constitution lays the framework of government. It is not the bricks and mortar, but the plans drawn by our nation’s architects. And like architects, the Framers purposely designed with expert precision every word so there would be no confusion as the nation began building.
The importance of the task was not lost on the Framers as they worked through stifling heat and a chorus of outside objections resurrecting the best ideals of 1776. They sought to pen an enduring Constitution. Unencumbered by a war with Great Britain, the Framers crafted a government, reflecting the lessons of more than 2,500 years of Western Civilization. Throughout the summer, the Framers toiled to invent a government strong enough to maintain order but not so strong as to trample liberty. Each humid breath, spoken to a room of overheated men and swollen mahogany, bore the best thoughts each had to offer.[41] Perhaps Madison best surmised the primary objective:
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.[42]
What the Framers created during the summer of 1787 deserves respect. It should be similarly revered because of the effort men and women have made since to reaffirm the brilliance of the Framers’ creation. Many of the nation’s leading women, from Betsy Ross and Abigail Adams to Sandra Day O’Conner have affirmed it. President Abraham Lincoln affirmed it at Gettysburg, “a government of the people, by the people, for the people, shall not parish from the earth.”[43] Martin Luther King affirmed it in his “I Have a Dream Speech.”[44] Every President from George Washington to the present has affirmed their devotion to protecting and defending the Constitution, so have most people who have served in Congress, on Federal Courts, and in the executive branch. Foreign leaders like Winston Churchill and others have praised it too.[45] In short, the Constitution represents the culmination of the best humanity has to offer. Over the past 230 years the most intelligent and best-educated people on earth have affirmed its brilliance.
We, too, must renew our faith in the ideals of the founding and affirm those sacred values or risk losing them to the dustbin of history.
II. The Framers’ Intent
Tarnished by years of neglect, the U.S. Senate needs polishing. In order to assess what ails the Senate, it is important to understand it. This section seeks to identify some of the founding principles governing the Senate, more specifically relating to its composition. Many interconnecting ideas herein modify other ideas, but are treated separately for clarity. Later, we examine the extent to which the Senate has deviated from its origins, and if the deviation has been good or bad. The internal rules governing the Senate are ignored to focus more intentionally on broader themes. The purpose of this section is to identify why the Framers thought it was important for Senators to be elected by the state legislatures.
A. State Sovereignty
The sovereignty of each state remains essential to American government. The name given in the Preamble of the Constitution is instructive: “the United States of America.”[46] Thus, the Framers created a nation of states, not a nation of itself.
More directly, the Tenth Amendment makes abundantly clear, “The powers not delegated to the United States…are reserved to the States”.[47] In The Federalist Papers, Madison intones the same refrain declaring the powers of the federal government are “few and defined,” adding, the powers of the states are “numerous and indefinite.”[48] Correspondingly, state legislatures originally appointed U.S. Senators, a measure designed to empower states. “Giving state governments such an agency in the formation of the federal government,” Madison wrote of the decision “is probably the most congenial with public opinion.”[49]
Having “agency” in the composition of the national government, not only provided state governments oversight, but also delivered a government which was federal in nature. Senators responded to the particular members of the state legislature, paying attention to the needs of their state and the states generally. The resulting behavior of the Senate reflected the will of the states, providing a tangible check on the encroachment of federal powers over state interest. In that way, states influenced federal legislation.
This worked the other way too. Not only did Senators vote in line with the spirit of the state legislatures, but state legislative bodies were influenced by the U.S. Senate because of the ongoing relationship between the two levels of government. Senators, in other words, were given a reason to explain themselves to members of their state legislatures, which enlightened state lawmakers to the needs of the federal government.
Even George Mason, who was an anti-federalist,[50] declared during the convention, “The national legislature would swallow up the legislatures of the states. The protection from this occurrence would be the securing to the state legislatures the choice of the senators of the United States.”[51] Madison concurred with granting states control over the Senate writing, “It is recommended by the double advantage of favoring a select appointment, and of giving the state government such an agency in the formation of the federal government.”[52]
With the advantage of hindsight, appreciation for the Framers’ prudence in creating “laboratories” of government is realized. As Justice Louis Brandeis praised many years later, the states could “try novel social and economic experiments without risk to the rest of the country.”[53] Chief Justice Taft agreed, insisting “the diversity of opinion in state governments enforces a wise deliberation,” guarding “us all against the danger of sudden gusts of popular passion.”[54]
Lastly, the Articles of Confederation, as we have seen, were designed entirely around the authority of the states. State sovereignty, accordingly, was the custom and also representative of the spirit of 1776, evidenced by the fact that the Founders installed a state dominated government. When it came time for ratifying the Constitution, guarantees were made to ensure states enjoyed a paramount authority under the new scheme.[55] Specifically, the Tenth Amendment, offered by the Framers, guarantees limits on federal control and emphasizes the inherent power of states.[56] As has been identified by constitutional experts, “The true Constitution of any political state is not merely a piece of parchment, but rather a body of fundamental laws and customs…the American Republic possess an underlying constitution – of which the written constitution of the United States is an expression,” which includes “laws, customs, habits, and popular beliefs that existed before the Constitutional Convention.”[57] Thus, the authority of states was and remains fundamental to the national identify of the United States of America.
The power of state governments is essential to understanding the Constitution and why the Senate was originally selected by state legislatures. State sovereignty commands respect in its own right, but also relates to another important element of Constitutional design: federalism.
B. Federalism
Bolstering state sovereignty, the Framers braided into the Constitution a uniquely American form of federalism. Federalism encourages the cooperation of multiple levels of government, specifically between the state and national governments. Under a federalist system, national, state, and local governments exercise autonomy over particular issues, sometimes for better and sometimes worse.[58] Placing state lawmakers in control of who becomes a U.S. Senator balances federalism by giving states a level of control in the federal government.
One fear from the beginning of the nation was the centralizing tendency of national government, turning states into de facto extensions of national policy. Unfunded mandates prove why the imbalance is harmful. Federalism works best when national and state governments work together, each exercising different, but mutual power and autonomy.
In order to prevent a branch of the federal government from dominating American government and way of life, Madison wrote it was necessary to create “the interior structure of government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”[59] The election of the Senate by state lawmakers would give “to the state governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”[60]
One legal scholar surmises the Framers’ intent in crafting,
A national government with limited powers, they intended to allow the states and local governments to pursue a range of different policies on matters within what used to be called their ‘police powers’—that is, their authority to regulate behavior, maintain order and promote the public good within their own territory. The founders considered this arrangement the best way to protect liberty and diversity of opinion, as well as to defend political minorities from nationalist tyranny and concentrated power.[61]
Moreover, a well-established history of federalism informed the Framers. According to another notable legal expert:
The history of American federalism began decades before the Constitutional Convention of 1787. Some of federalism’s central concepts, most notably the idea of constructing a government around multilayered legislative authority, had begun to emerge in the 1760s…The convention debates and the Constitution that resulted created and codified federalism in important ways…the period from 1787 to 1789 should be understood as a reexamination and reshuffling of fundamental ideas of government which Americans had begun experimenting with decades before.[62]
Alexander Hamilton, additionally, argued federalism was “not a new idea…and has received the sanction of the most approved writers on the subject of politics.” He continued, “The proposed constitution” makes states “constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds with the idea of federal government.”[63] Many additional letters from The Federalist Papers address the necessity and benefits of federalism as well.
Accordingly, federalism is not simply a righteous endeavor, but a vital part of the United States republic. It is best achieved by guaranteeing independence within the layers and branches of government. Without federalism, the United States government simply does not function as well as the Framers’ intended.
C. Bicameralism
An unassuming trio, bicameralism, special interests, and corruption share a relationship: the former tempers the latter two.
Bicameralism stretches beyond a simple two chamber legislative body, but extends to the way each body is comprised, behaves, and works.[64] A key feature of the bicameral legislature crafted by the Framers is the two bodies were elected by two completely different sets of constitutes. The House is elected directly by the citizens of United States, more specifically by the citizens of specified districts. The Senate, on the other hand, was elected by state legislatures, made up of constitutes engaged in politics and law making professionally.[65]
The Framers purposely designed the government to reduce the influence of special interests, or “factions,” which they feared would control legislation.[66] Madison argued: “In republican government, the legislative authority, necessarily predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependences on the society, will admit.”[67]
Special interest groups, originally, were not easily able to penetrate the Senate because it meant pandering to each state legislature. Farmers and solar panel salesmen and arrays of energy groups, in other words, would have to lobby in Columbia, SC and Lincoln, NB and Sacramento, CA, not just Washington, D.C. Having to do so limited the ability of special interest groups to influence Senators. It is much easier to give money to a Senator for his or her campaign to run more advertisements and marketing efforts than it is to influence fifty state legislative bodies. And so, by diversifying the two legislative bodies, special interests would have a more difficult time lobbying for favorable legislation.
Justice Story wrote, “If each branch is substantially framed upon the same plan, the advantages and division are shadowy and imaginative…It may be safely asserted, that for all the purposes of liberty, and security, of stable laws, and of solid institutions, of personal rights, and of protection for property, a single branch is quite as good as two, if their composition is the same, and their spirits and impulses the same.”[68]
Learning from the experience of America under the Articles of Confederation, the Framers were cognizant of the ligaments binding democracy and corruption. The influence pushy or wealthy constituents exercise over members of legislatures begins innocently, but can easily become a road to corruption. Too much direct democratic influence was the problem the Federalists hoped to remedy with the new Constitution.[69]
D. Limiting Government
Anchoring the Constitution are two enormously important concepts of government: a) Separation of Powers and b) Checks and Balances. These concepts form the bulwark of guards against tyranny.
On its face, the Constitution instructs readers to treat the branches of government entirely separately: Article I establishes the legislative branch, Article II the executive branch, and Article III the judicial branch. Madison lays the groundwork for separating power, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny…the preservation of liberty requires that the three great departments of power should be separate and distinct.”[70] As Madison rightly contends, the “accumulation” of power is a universal propensity.
Separation of Powers vests governmental powers among three branches.[71] The legislative branch creates laws and the executive branch carries out the laws. The judicial branch serves as a referee, determining what laws and actions of the other branches are lawful and unlawful.[72] Power divided and shared prevents a person or oligarchy from usurping power, then ruling the nation. Since the legislative branch was given the greatest powers and responsibilities, it needed an internal mechanism for separating power, and so a bicameral legislature was devised creating two very different legislative entities.[73]
The Framers installed a system of “Checks and Balances” as an additional safeguard for freedom.[74] It gives one branch the power to check another – a labyrinth of votes, vetoes, judicial rulings, and procedures spread power.[75]
Granting state legislatures the authority to elect U.S. Senators was an “auxiliary precaution” Madison expressly called upon to help control the government.[76] States as constituents, thereby, added a layer to federalism and further divided power.
Nothing limits government abuse more than a directly elected chamber acting in concert with a deliberative chamber for the benefit of the people and nation, as noted by Madison.[77]
The diversity of governing styles, as an aid in the scheme of separating power and providing checks, cannot be overstated. During the Convention, William Pierce argued that dividing the legislature into a federal chamber and a national chamber ensured “the citizens of the states would be represented both individually and collectively.”[78] Madison concurred:
The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same Principle, as they are in the legislature of the particular State. So far, the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far, the government is FEDERAL, not NATIONAL…From this aspect the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.[79]
The “tyranny of the majority,”[80] another smoldering threat to democratic government, found little refuge in the Framers’ Constitution. The idea that a simple majority could dominate everyone inherently threatened the personal rights and liberty of the minority. In other words, anytime fifty-one percent of people agree, they can impose their interest on everyone, sometimes oppressing the other forty-nine percent. Shielding the U.S. Senate from the tendency to cave to the majority helped foster unity, at least in theory.[81]
As Thomas Jefferson observed years before the Constitutional Convention convened, “An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”[82]
E. Factions
“A pure democracy,” Madison wrote, “who assemble and administer the government in person, can admit of no cure for the mischiefs of faction.”[83] The “factions” concerning the Framers were created by the passions of pure democratic rule. Democratic government responds to the people, but in doing so risks empowering mobs, which can trample the rights of minority factions. For this reason, elevated debate by virtuous characters in the Senate should cool popular passions gusting through the House.[84]
Hamilton added during the convention, it was necessary to limit “the amazing violence and turbulence of the democratic spirit.”[85] It was a given that government should be responsive to the citizens, but it was equally understood how quickly passions could rule over reason, thereby creating mob rule. When mobs rule, the rights of people are no more and whims prevail over logic. The Framers sought to prevent the impulses of mobs from spreading too quickly.
F. Quality State Government
State Sovereignty, Federalism, Separation of Powers, Checks and Balances, and other enshrined principles of government are furthered when state and local governments behave in accordance with their original charter. Under the original scheme of electing members of the U.S. Senate, there was great reason for citizens to interact with their state lawmakers because those people would ultimately determine who would represent the state on the federal level in the U.S. Senate. Giving state lawmakers this power, not only encouraged people to interact with state lawmakers, but also quality candidates to seek public office. Accordingly, the quality of office seekers may improve.
What harm comes from granting state and local governments “agency” in the federal government? Citizens might know state lawmakers better, feel compelled to express opinions, or become more active in local and state politics. Lower voter turnout in local elections compared to Presidential elections indicates a lower level of understanding and/ or involvement in state and local politics. This might not be the case, or might not be as noticeable, if the state legislatures still elected U.S. Senators. A likely result would be better state and local leadership, as well as a more responsive government on all levels.
G. A Deliberative Body
The U.S. Senate was designed by the Framers to be a deliberative body, distant from the whims of the public. “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason,” argued Madison, which is why the Framers favored “select appointments” to the Senate.[86] The Senate, therefore, was designed to guard against passion and aid reason.
According to the Constitution, each state has two senators no matter its size, equalizing the power of each state and the authority of the states collectively. The Constitution requires Senators obtain the age of Thirty (30) to ensure wiser and more experienced leadership – 12 years of voting experiences versus 7 years for House members. To guard against political pressure, the Framers gave Senators six-year terms. The Framers also gave the Senate treasured responsibilities in the government – power to remove the President, advice and consent powers, and controlling foreign affairs.[87] Each of these features demonstrates the deliberative nature intended by the Framers.[88]
During a legal trial, for instance, a jury does not hear from anyone and everyone who cares to speak. Each side has lawyers. The judge acts as a referee. The lawyers decide which witnesses to call – usually based on who has the best information and can help build a good case. Additionally, codified procedural rules guide participants through the process. This type of organizing generally produces fair results. Imagine if a jury heard from thousands of people on the phone, then thousands shouting in the streets, then another thousand through letters. Sprinkle in some side cash and a handful of death threats, and things turn south quickly. This scenario illustrates the inefficiencies with group rule and how quickly mayhem can turn into the law of the land. Courts, as with the legislative bodies, benefit from organized debate, which fosters an environment for fairness and justice.
It might seem counterintuitive, but perhaps direct democracy sometimes hurts the ability of the people to be heard because the loudest, not necessarily the smartest, ideas and people prevail. The Senate, it might seem, was “anti-democratic” according to some people. “Anti-democratic” is hardly accurate, but the term is shocking and politically marketable enough to continue casting bad light on the old system.
Reducing democratic impulses was the part of the plan. The Senate was intended to resemble the British House of Lords, full of “better men” from the elite reaches of society. It has been argued, removing the whims of the people fostered logical debate by the most educated people in America who did not need to gain financially or pander to constituents or bow to public sentiment. By selecting the right people, outside influences were reduced and Senators were better able to serve the interest of the United States of America instead of themselves.[89] It was argued by the Framers, and continues into our day by some, that the Senate should be composed of virtuous public servants who did not have financial interest in government.[90]
A healthy distrust in popular government and distrust for aristocracy encouraged the Framers to create a bicameral legislature with one chamber to balance each extreme. The overarching theme is that the Senate was purposefully designed as a check on popular government.
H. Political Theory
The Framers specifically, and the Founders more broadly, appear prophetic in many ways, but more importantly they were good students. Each understood history, philosophy, government, and other disciplines.[91] It was an age when information was measured by thousands of pages read, not limited to a few characters for social media, and good ideas were based on thoughtful logic, not impulse. Collectively, and for some individually, they were as close to experts on Western Civilization as possible, even before the term was used. Political philosophy illuminated ancient text and enlightened thoughts. Accordingly, they sought to create a government in light of the tried and true wisdom of governments and societies since democracy first developed in ancient Greece.[92]
Classical political thought from Plato and Aristotle to Cicero during the Roman Era to Modern Political theorist like Machiavelli, John Locke, and Thomas Hobbes, were very much a part of the Framers’ thinking.[93] Accordingly, the Framers shared similar fundamentally understandings about the underpinnings government. Most agreed there were two ends of a spectrum. On the one end, total tyranny by one person, and direct democracy on the other which often metastasized into anarchy. Both systems had significant faults, so the aim was something in the middle.[94]
Many agreed that there were three primary types of government: monarchy, aristocracy, and democracy. Controlled by one person, a monarch could be a philosopher king or tyrant, but at some point, the system would inevitably bend in a more tyrannical direction. Under an aristocracy a group like a parliament or congress ruled, but such a scheme eventually yielded to prevailing factions – tyranny over minorities. Lastly, a democracy would exist for a very short period before multitudes of opinions found no agreement and the government became overrun by anarchy. Each type of government exhibits merits, efficiency, thoughtfulness, and liberty, respectfully. Therefore, the Framers scattered the positive portions of each into the government.[95]
One popular idea during the founding period maintained that rights are given by our Creator, not by government. Government, therefore, was a way of organizing society without trampling on those God given rights eloquently expressed in the Declaration of Independence. The notion of natural rights is essential to understanding the Constitution and United States government because modern Americans sometimes fail to grasp the differences between entitlements and rights. Rights exist even before citizens draw a breath. The aim of the Constitution is preventing government from taking those rights. Stated differently, governments cannot grant rights because citizens already own them. Liberty, for example, exists and the Constitution prevents the government from limiting it.
Hungry for power, men running governments tend to enlarge government to satisfy their interest. Harnessing the power and scope of government, as well as the power of the people managing it, requires restraints. Restraining government and protecting individual liberty were, therefore, primary motives for the Founders and the subsequent creation of the Constitution.
Plato’s titanic thinking informed the Framers’ view of government as well.[96] Plato’s, The Republic, addresses the last phases of democracy, a trend that has come true over and again since antiquity. History repeats itself, a truism appreciated during the founding period, so using history as a guide demonstrates proactive thinking. The Framers studied classical and modern political thought, understanding that an overly democratic society could easily falter, falling into the hands of a dictator. That dictators come to power more easily in direct democracies was conventional wisdom like the earth being round.[97]
Many ideas addressed above found their way into the Constitution, not only based on logic and common sense, but because of experiential wisdom as well. Many ideas guiding the Framers had never before been done.[98]
I. Federal Courts
Nowhere, save the power to remove the President and approval of treaties, is the Senate’s responsibility greater than its “advice and consent” role charged under Article III of the United States Constitution.[99] The President nominates federal judges and the Senate provides not only advice, but also confirms appointments to the United States Supreme Court and other federal courts. The Framers intended, for good reason, the Supreme Court to remain independent from the political arena.[100] The consent role has evolved over the years with attempts at politicizing the one branch of government intended to remain distant from politics.
Most recently, the confirmation process required the candidate to answer over 1,200 questions, submit to 30 hours of hearings, and meet with at least 65 U.S. Senators and other high government office holders.[101] These numbers do not include the scores of experts involved in advising the President or the tremendous efforts of outsider to influence the outcome. Senator Susan Collins, as an example, consulted 19 lawyers, read numerous Supreme Court and lower federal court cases, interviewed the nominee twice, and studied other sources such as FBI background checks and The Federalist Papers in arriving at her vote. She also spoke at length with her constituents and other advisors.[102]
Partisan politics, however, hijacked much of the confirmation process. Grandstanding for photo ops took the place of thoughtful, information seeking questions. Paid political protesters hunted down Senators and wedged deep divisions, instead of listening and understanding. Senators focused on organizing protest instead of meeting with each other to consider the options. The President tossed around political capital. The charade was not good for the country, the judiciary, the Senate, the voters, and was certainly not what the Framers intended. Taxpayers and citizens are certainly justified in assuming the Senate serves its individual members more than the public, though some appear to be hard working public servants. Senator Collins, for example, used logic, law, and respect.
Is there a more measured approach to confirming Supreme Court nominees and allowing the Senate to do its important work without the distraction of partisanship? Is there a way to restore the dignity of the U.S. Senate and confidence in government?
J. Virtue
Nothing remains more vital to the American republic than virtuous leaders. A leading historian summarizes:
Barriers could be erected, bills of rights established, contracts negotiated, charters written, institutions arranged and balanced, and the people allowed a share in participation in government; but ultimately the most enlightened of that enlightened age believed that the secret of good government and the protection of popular liberty lay in ensuring that good men – men of character and disinterestedness – wielded power.[103]
Pressing further, Madison particularly insisted personal interest of leaders in American government should not control the minds of elected officials. Disinterested gentlemen, he thought, “possess most wisdom to discern and most virtue to pursue the common good of society.” He envisioned “the purest and noblest characters,” removed from factions and interest. If these sorts of leaders occupied government, they could approach it logically and devoid of personal bias so decisions might be made in the best interest of society.[104]
Thus, virtue, not necessarily the structure of government, preserves the republic and liberty. Without virtue, corruption and tyranny prevail.
K. Conclusion
There are other important features of the Constitution’s original arrangement to elect Senators, some of which are addressed later. The overarching theme is this: The Framers deliberately and thoughtfully designed the U.S. Senate and the election of its members. Any departure from the original design, therefore, would have intended and unintended consequences.
III. The Senate From 1787-1913
This section briefly surveys the United States Senate under the original system, prior to the passage of the Seventeenth Amendment. It then examines what led to the passage of the Seventeenth Amendment.
***
After the Constitutional Convention drafted and signed the Constitution on September 17, 1787, the challenging process of ratification began. The ratification process took more than a year, during which time each state debated the pros and cons of adapting the new Constitution or remaining devoted to the Articles of Confederation. Following serious debate between Federalists and Anti-Federalists, on March 4, 1789 our Constitution took effect.[105]
A. Prior to the Seventeenth Amendment
A condition of ratifying the proposed Constitution for some states was the addition of a Bill of Rights.[106] The Bill of Rights guarantees certain natural rights, ensuring the government cannot trample on the individual freedoms of the citizens.[107] For instance, the government cannot pass laws forbidding free speech, the exercise of religion, gun ownership, or a right to trial by jury.[108]
Following George Washington’s inauguration,[109] Congress went to work delivering on promises by amending the Constitution to include the first ten amendments known collectively as the Bill of Rights.[110]
George Washington, John Adams, Thomas Jefferson, and then James Madison served as the first four Presidents. During the early years, these formidable characters ushered into existence a government defined by the Constitution with the spirit of the Declaration of Independence. As participants in both the Revolution and establishment of the Constitution, these men helped iron out issues in the early years.[111]
The United States sustained challenges from the outset. The War of 1812 and later the Civil War, for instance, tested the nation and its laws. With each challenge, the integrity of the Constitution was affirmed and reaffirmed. Adjustments were made, but the essential framework and principles endured.
As the Nineteenth Century came to a close, however, problems with the Constitutional system emerged. Following the Gilded Age, life and politics in American changed. Concerning the U.S. Senate, many people were displeased.
For one thing, the election of Senators by state legislatures created an environment in which corruption thrived.[112] Lawmakers in state legislatures around the country were easily bought off in exchange for voting for particular Senators. Moreover, state legislative elections began to be seen as referendums on who the state lawmakers would support for U.S. Senate.[113] The Abraham Lincoln and Stephen Douglas Senate race in 1858, for instance, dominated Illinois politics, a trend that was replicated around the country.[114] Instead of state lawmakers focusing on roads, ports, schools, hospitals, and other state issues, the focus turned to national politics.
Gridlock ensued in state legislatures as well. Sometimes U.S. Senate seats remained unfilled because statehouses failed to reach enough consensus to send representatives to the Senate, creating a stalemate.[115]
Another interesting change in American politics began around the same time. The rise of national parties, not just in terms of national influence, but also the depth in which the two-party system penetrated every level of politics, paved the way for mammoth shifts.[116] As one commentator astutely asks: Why did state legislatures surrender the power to elect Senators? In his estimate, it was because national interests were dominating state politics, so state lawmakers invited a chance to gain independence from national issues and the U.S. Senate.[117] Some states even designed a system whereby a non-binding direct election of U.S. Senators appeared on the ballot.[118]
Whatever the reason, brisk winds of change swirled as the Progressives gathered strength.
B. The Passage of the Seventeenth
By the time the Seventeenth Amendment passed, American social order and life had drastically changed. Cars, electricity, and major cities were prevalent throughout much of the country. Railroads connected people from all parts and the advent of the plane opened interesting possibilities. The first transcontinental road, Charlie Chaplain, and anxiety over political alignments in Europe dominated conversations. The extinction of slavery and the rising independence of women marked magnificent shifts in the social fabric of America. The full thrust of capitalism permeated throughout, delivering opportunities to many but unbendingly denying them others. While the nation battled challenges, a pre-World War global order remained, and necessities still dominated the curriculum of most minds.
Amidst these transformations a central question remained: had the self-evident truths of the Founders changed? Were the principles upon which the United States of America was built broad enough to accommodate enormous social, economic, and political changes?
As addressed earlier, there were many reasons the conventional wisdom of the day turned to amending the way Senators were elected. Corruption, the rise of political parties, the focus of U.S. Senate races in state politics, and stalemates in state legislatures were certainly impactful. The overarching theme, however, was the rising tide of Progressive politics.[119]
The Progressive movement, spanning from the 1890s through the 1920s, coupled populism with a desire for change. It challenged the conventional wisdom of the founding, seeking better laws reflecting a new era.[120] Better laws, the movement insisted, would help move the nation towards a Utopia. The idea that politicians can legislate a better world, contrasts from the ideas of natural law, individual liberty, and more broadly the original intent of the Framers.
During the period, the Progressives charged into battle against the Constitution and principles of the founding. Between 1913 and 1919, three amendments were passed. By comparison, only one amendment has been passed in the last 48 years.[121] The most structurally altering amendments were the Sixteenth Amendment, which allowed a direct federal income tax, and the Seventeenth Amendment, which is the subject of this paper.[122] The last of the Progressive Era amendments was prohibition of alcohol, which was later repealed.[123]
The Progressive Era paved the way for Franklin Roosevelt’s New Deal and subsequent alterations in the way American government functions. Growth of government and national government programs were unprecedented in the mid twentieth century.[124][125]
Amidst radical changes nationally and internationally, the Seventeenth Amendment sailed through Congress in May 1912 and was ratified by the states in April 1913.[126] [127] Armed with statehouse corruption arguments and charges that the existing system was anti-democratic, the Progressives were able to amend the Constitution through the Seventeenth Amendment making the U.S. Senate elected by a direct vote of the citizens of each state.[128]
IV. Impact of the Seventeenth Amendment
Has the U.S. Senate and the nation fared well since the passage of the Seventeenth Amendment? It is impossible to answer definitively, but there are signs worth reading. Certainly more than the Seventeenth Amendment affects the life of our nation. Trillions upon trillions of decisions made by many millions of people over the past century have played a mighty hand. Notwithstanding, it is worth considering if the Seventeenth Amendment has disproportionally shifted the trajectory of the United States in the wrong direction – and if so, how do we buttress our cracking foundation?
The United States of America continues to thrive in many ways. But, political life and culture seem chaotic, and the public is massively divided.[129] As noted earlier, approval ratings for Congress are consistently below 20%.[130] It seems obvious; our nation is surviving politically, but not doing well.
Reasonable people can argue for or against the Seventeenth Amendment. A better question, however, might be this: Could the U.S. Senate and the nation be better than it is now? And if so, are their structural adjustments needed to achieve those ends?
Let us begin by evaluating, to the extent possible, each of the points from Section II addressing the Framers’ intent in having the state legislatures elect Senators. The subsequent discussion considers additional considerations and contemporary issues related to the present ramifications of the Seventeenth Amendment. While massive amounts of ink have been devoted to some of these ideas, this section seeks to address collectively many relevant concerns regarding the election of United States Senators.
A. Are the States Sovereign?
Defining state sovereignty is not easy, so nailing down with much precision the measure of decline is difficult. What is apparent is the states no longer have the autonomy they once enjoyed. Roads, education, elections, and taxes, for instance, were once administered and run through state government. Each of these areas, and many more, are now largely dominated by the national government, even if there is a measure of interaction between the two levels.[131]
The expansion of the Federal court system has eroded state judicial systems and government as well.[132] Federal courts usurping state jurisdiction have wasted copious amounts tax dollars performing duties of state courts.[133] Additionally, the expansion of the Commerce Clause during the Twentieth Century helped centralize the legal framework of the nation.[134] In recent years, a push to uniform laws and lawyers has furthered these aims, weakening governments and local legal systems.
Examining tax revenues shows who is really in charge. Federal tax revenues in 2015 far exceed the revenues generated by the states and local governments combined.[135] The federal government taxes individuals and businesses and then distributes a small portion back to the states after it uses the lion’s share. By redistributing tax dollars to the states, the federal government is able to dictate its priorities. It also has a license to create unfunded mandates.[136]
Without belaboring the point, the Tenth Amendment demonstrates the true intent of the Framers.[137] That it does not enjoy greater reverence is a testament to our times. Citizens know more about national and international issues, than local ones. More telling, most people are more familiar with national politicians, who should have scant impact on people’s lives, then they are with local and state political leaders.[138] Local and state governments are specifically designed to respond to the concerns of citizens, failing to better use the process illustrates massive failures throughout the governing system.
For these reasons, it appears states are weaker. The national government, it seems, is the primary institution governing people, using the states as mere administrators. Does it matter that states are slowly dissolving, or at the least assimilating into administrative arms of an ever-centralizing national government?
B. Federalism, Not Feudalism
Federalism, as the Framers designed, has transformed over the years. As discussed previously, the Framers placed limits on the national government carving out space for states to pursue a variety of policies. Again, the Tenth Amendment demonstrates the seriousness with which limits on the national government were intended. While multiple layers of government are technically applied to the same issue, too often there is an unfunded mandate or threat by the federal government to behave in a particular way. Assuming the Framers designed our nation to grant great powers to both the states and federal governments, that balance no longer exists. The check is limited as well because the federal government has much more power than the states.[139]
Unfunded mandates demonstrate the overbearing weight of the national government crushing state governments. An unfunded mandate occurs when the national government to passes partially funded legislation or creates costly regulations, forcing states to pay for it.[140] For example, environmental or train regulations force states to pay for legislation they did not consider or pass.[141] Reducing welfare programs, similarly, leaves states picking up the slack tab when the federal government creates a welfare program then no longer pays for it.[142] Another instance occurred when congress passed legislation preventing states from taxing internet sales, which costs states tens of millions of dollars in revenue. No matter how it is view, it is an unhealthy practice for one government entity to dictate to another how and when to spend money.[143]
There may be a path forward for federalism. As one scholar observes: “Many of the issues that recent presidents have tried to decide at the national level through executive orders are best resolved at the state or local levels instead. In an era of fierce partisan divisions, all sides are beginning to see the virtues of our federal system in accommodating differences—and encouraging experimentation—on issues such as immigration, law enforcement and education.”[144] He adds, “A respect for federalism and state autonomy is perhaps the only way that all sides can peacefully co-exist in today’s political environment.”[145]
It bears considering if a more balanced federalism could empower states to serve citizens better. To do so, states would have to possess authority, once again, to stand up to the national government. Would our country be a little more perfect if states could reject unconstitutional federal laws, especially executive orders and unfunded mandates that encroach on state jurisdiction? Would a U.S. Senate comprised of men and women selected by state legislatures lubricate the gears of federalism to grind out more responsive laws on every level of government?
C. Bicameralism Versus Special Interests and Corruption
A few years ago, a former U.S. Senator hammered a truism in American government: Special interests are more powerful than ever. “There has never been a time,” he contends, “when the government of the United States was so perversely and systematically dedicated to special interest, earmarks, side deals, logrolling, vote-trading, and sweetheart deals of one kind or another.”[146] This results, in large part, from tearing the heart out of the concept of bicameralism.[147] As one scholar has pointed out, “changing the method by which the Senate was elected undermined the check that bicameralism provided against special interest legislation. Thus, not only was there steady growth in the size of the federal government in the 1920s, but this growth was driven by special interest legislation.”[148] He noted also, “The New Deal, of course, accelerated this trend toward capture of the federal government by special interest.”[149]
Special interest and lobbyists wield incredible power in our nation’s capital. Pork barrel spending, earmarks, failure to pass balanced budgets, and general governmental overreach result from special interest. The current influence of lobbyist and special interest exemplifies the Framers’ forward thinking to prevent a situation in which governments are taken hostage by the interest of powerful businesses or individuals.[150]
Accordingly, when the President, Senate, and House share constituents, they all scratch each other’s backs. It is easier to streamline lobbying when all cases share a jury. A lobbyist with a bag full of proverbial cash can theoretically make a donation to a House member at 9:00 am, then a Senator at 9:30 am, then walk to the White House and make a donation by 10:00 am. Better yet, one lunch at the Capital Grill and you can get all the subsidies you need in under an hour.[151] Cash is king, especially in even numbered years in Washington, DC. One way to loosen the grip of special interests on our government is by dividing constituencies.
If the lobbyist needed politicians in his pocket from around the country, he would not as easily buy bills. Restoring the Senate to its original design might reduce men like lobbyist and special interest from pushing around Senators.
D. Is Limited Government Possible?
The growth and power of the federal government has swelled beyond anything the Framers imagined. States, once a legitimate check to federal power, can no longer match the might of our national government. On the national level, the three branches separate power and provide checks, but the accompanying decline in state power removed vital checks, balances, and divisions of power inherent in the original constitutional scheme.
A related issue is the problem overlapping constituents. As mentioned previously, the President, Senate, and House are each elected by the same people. Consequently, the ability of the branches of the federal government to “check” one another is reduced significantly because there is no longer the type of mixed forms of government the Framers’ designed.[152] Because “the government” no longer enjoys distinction between the branches, citizens seem to view it all the same as well.
What created the imbalance between state and national governments? Massive growth of the federal government, many assume, began with the New Deal.[153] The truth, however, is that the Constitutional Amendments during the Progressive era, and notably the passage of the Seventeenth, injected plaque into the blood stream. Unprecedented intervention in state functions by the federal government accompanied the Progressive era. The New Deal, consequently, manifested from the work done in the 1910s and 1920s.[154] If the Progressives injected plaque into the blood stream, the New Deal arrested the heart of limited government.
On the one hand, the national government reigns supreme over the states. On the other, there is no longer a distinction on the national level between the branches. Coupling the two hands together, weak states on the one with a puppet Senate on the other, effectively gives the President limitless powers.
Two essential question emerge: 1) can the U.S. Senate regain a check on the executive branch? and 2) would ending direct election of Senators help? What seems apparent is that Senators campaigning for or against the President, and the President reciprocating for or against Senators, does not demonstrate separation of powers or good faith limitations on executive power. Is there a sensible solution to the problem of sharing constituents?[155]
E. Controlling Democratic Factions and Passions
It has been argued, “Madison’s worst fears of mob rule have been realized” and “the cooling mechanisms he designed to slow down the formation of impetuous majorities have broken.”[156] This is evident in the internet and social media, which are often harmless and useful, but encourage great polarization and wild passions. Often, the rage witnessed though social media magnifies misinformation and disinformation.[157]
Social media pumps diesel fueled anger through the veins of the world wide web in minutes or hours. True or not, the latest story soaks into the minds of angry addicts waiting on the next fix until someone lights a match. The saying goes, “words can never harm me,” but on the impulsive web words do cause harm, often irreparably. Moreover, what happens when those harmless words galvanize mobs to grab “sticks and stones”?
A distinguished group of U.S. Senators certainly cannot stop the dark, soulless edges of the internet. They can, without having to pander to the internet mob, decide not to fuel the fire. But, how can they temper outrage when they are often looked upon as the microphones of outrage? Ultimately, the public decides if Senators preach truth or spread propaganda, but having to decide seems inherently like a bad place.
It is sometimes argued the Constitution is an outdated relic of yesteryear that needs modernizing to better reflect the realities of twenty-first century life. The Framers, after all, could not possibly have understood modern society. But, if this is true, then how did they foresee the mighty currents of political factions controlling government today? Contrary to the assumption that the Constitution is outdated, modern mobs prove it is as significant as ever, and the Framers were right about democracy. Government should derive power from the consent of the governed and popular government is best, but on the extreme end, there are harmful human tendencies, which the Framers sought to stem.
Perhaps, Sir Winston Churchill stated it best when he said: “No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of government except for all those other forms that have been tried from time to time.”[158] The prevailing fear, centuries ago and today, is that too much democracy leads to anarchy and mob rule. The Framers feared mob rule, as did Abraham Lincoln, and men and women around the world who earnestly strive for healthy democratic government.
Americans should fear mob rule in our time. The question remains; how do we control factions and passions? Perhaps, a Senate once removed from direct democracy would provide a stabilizing dose of medicine to an otherwise chaotic political environment.
F. Quality and Strength of State Government
One objective of the Seventeenth Amendment aimed to remove national politics from state elections. In other words, state elections had turned into referendums on national politics, creating a mirror of the same issues. The removal of national political issues from state politics has not occurred. It was a legitimate goal intended to preserve the integrity of state elections. State elections, nevertheless, continue reflecting national issues. This is perhaps because of the rise of political parties.[159] For instance, tariffs or national defense shape people’s thinking about a Republicans and Democrats running for the statehouse even though state officials have nothing to do with tariffs or national defense.
Is it inevitable that local and state elections far too often fail to put up at least two reasonable options? Too many state elections seem to go uncontested. Others feature disappointing candidates. With only 15% of people voting in mayoral elections, the indication is clear: voters simple are not interested in local elections.[160]
On the balance sheet, local and state elected leaders are pretty good. But, could there be more interest, support, and thinking in local and state politics? Is it possible to improve the lots cast and thereby improve the quality of local and state government? If so, can we make local and state government more responsive to the people they represent, in turn reducing our reliance on Washington, DC?
In theory, giving the great responsibility of deciding U.S. Senators might attract more highly qualified candidates for state offices. The net result would be better state government. Consequently, not only would the rising tide of highly qualified state office holders improve, but the tide of state sovereignty and federalism might rise along with it.
G. Reviving a Deliberative Body
Debate between two sides is a logical way to tease out issues, and particularly useful when drafting laws. This was an objective of the Framers, crafting the U.S. Senate as a deliberative body.[161] In recent years, debate has declined in frequency, quality, and influence.[162]
The tyranny of the majority,[163] a fear across the political spectrum, dominates the Senate and our entire government. Madison and his cohorts designed the U.S. Senate to operate above factions, as a consensus building body, employing debate and compromises to do the work of the nation.
Recently, however, the Senate has moved away from debate, compromises, or consensus building. As mentioned above, the Kavanaugh hearings illustrate the point, but it does not stop there. Over immigration debates in 2018, for instance, a reporter observed, “In terms of rip-roaring debates, it certainly didn’t rival Calhoun verses Webster. It definitely was not in the pantheon with Lincoln and Douglas. In fact, it really didn’t ever measure up to Biden meets Palin…After raising expectations of an elevated, old-schooled clash of ideas, the Senate delivered a dud, a major disappointment to those hoping to see a revived Senate confront the tough, politically charged issues by hashing them out on the floor.”[164] As this commentary indicates, the Senate sadly disappoints on even the most crucial issues.
When partisanship reigns, the world is forced into a series of binary decisions, like political coding. Absent recognition of the gray areas, politics in the Senate is a zero-sum game on every vote, often highlighting polarizing options. Unity and compromise are not always achievable, but most of the time there are more unifying issues than divisive ones. Debate, aside from forcing a logical articulation of a position, exposes the primary objectives, which presents opportunities for unity and compromise. What Senator X believes is not always inconsistent with what Senator Y believes.
Prior to the Seventeenth Amendment, lions roared zealously across the Senate chamber. Great orators like Daniel Webster, Henry Clay, and John Calhoun vigorously engaged in debate.[165] In Senate races, candidates like Abraham Lincoln and Stephen Douglas engaged in epic battles. Where have these debates gone? Without great orators articulating positions, has the United States lost the ability to find common ground?
If healthier debates would benefit the nation, then why has the art of debate in the U.S. Senate dissipated? In a world where Senators cater to the lowest common denominator, perhaps debates are gone because the people judging the debates lack the capacity to keep up. That is not to say votes are ill informed, but a recognition that most people lack the luxury of time to thoroughly study each issue. Consequently, Senators are not required to dig deeply into subjects because they only need to address the surface of each issue. Why prepare for a debate when you can achieve the same end by posting a message on social media or an email blast? In essence, we no longer have hefty debates because the judges have changed. Would debate in the Senate rise with the rising tide of knowledgeable judges (i.e. constituents)?
The scarcity of good debate in the U.S. Senate is not solely because of the Seventeenth Amendment. Internal Senate rules and outside influences (such as social media, around the clock news stations, Political Action Committees and money, special interest, etc.) certainly play a significant role in the decline of authentic, thoughtful debate. It is not unreasonable, however, to see how the Seventeenth Amendment laid the bricks for the path to a debate-less Senate.
H. Realizing the Past Through Political Theory
The Framers learned from Ancient Greece, Rome, and European monarchs old and new. They studied the past and experimented in their time.[166] They understood philosophy and political thought, but do politicians today? Have we abandoned political theory?
Belief that our Creator endowed each individual with rights, governments should not infringe on those rights, popular government reigns, democratic and republican principles remain vital to national survival, and equality is virtuous, necessitates a revival of American ideals. To do so requires revisiting dusty old books and documents.
According to one contemporary political observer, the United States is inching towards the type of overly democratic system which lends itself tyranny. Explaining the similarities between the type of democracy Plato and Socrates feared, and the United States today he argues, “America has never been so ripe for tyranny.” Late stage democracy, in other words, may have arrived. It occurs when people feel so unfairly treated by an oppressive government, they turn to a powerful leader to disrupt the established systems. The people’s leader, armed with majority support, shatters all the existing structures of government in the name of the people, then reigns alone – sometimes the leader is a philosopher king and sometimes a tyrant. Plato and Madison would recognize it as a place where direct democracy prevails, elites are killed by mobs, the rich are attacked, fathers lack authority over sons, teachers fear pupils, animals are equal to humans, and rules are replaced by violence. Eerily, today “Hyperdemocracy” and on demand equality of outcome have eliminated qualifications for public office. Thoughtful debate about important political issues is dying as well.[167]
Tyranny and centralized government are the antitheses of liberty and justice. Without history and political thought as prognosticators for the future, sacred values are in great peril. America deserves leaders in the Senate, and throughout government, who understand the Framers’ intent when they installed safeguards of freedom in the Constitution. Perhaps reflecting on Ancient Greece, Rome, Europe, and the American founding would help Senators fight mob rule, not aid and abet it.
Should citizens expect Senators to gaze through the looking glass of history and political thought to see beyond the horizon? If so, who among us is best able to determine the highly qualified members of society to lead America into the future?
I. The Senate’s Shaping of Federal Courts
Alongside the swelling size, scope, and influence of federal courts grows an increasing democratization and politicization of the federal judiciary. As discussed above, appointing the men and women who serve on federal courts is extremely important, as is the “advise and consent” role of the Senate. Not many people actually have the legal expertise or knowledge about potential judicial nominees to formulate an opinion. The President and U.S. Senators are among the people who do.
Over democratizing Supreme Court nominations and “consent” makes about as much sense as holding a vote on what the President can eat. One could argue, the President’s health is of national concern because food is related to health, so the people should have a say in what the President eats. Another, more fair-minded person, might retort, “It simply does not make sense because most people don’t know anything about his health or daily habits, so are not informed enough to have an opinion. Moreover, most people do not have a medical degree or higher-level education in nutrition, therefore, lack basic knowledge to formulate an opinion. Moreover, a vote would be terribly divisive, forcing people to take sides on an issue that is best left to the President, people who know him best, the people who feed him food, and medical experts.” Under the former suggestion, the President would surely starve.
The point is the public knows little about the Supreme Court, law making, or the judicial process. Most people do not read court opinions or have posters of Justices adorning their office walls or subscribe to legal journals. That is not to argue public opinion is not important in many areas. Popular government remains the most fundamental principal of our republic. Direct vote on judicial nominees, however, is not something most people are equipped to do. It should be removed from the whims of the people. So how do we improve the ability of U.S. Senators to make determinations about federal court nominees?[168]
One suggestion is removing the influence of the public. There are a number of ways to do this, making U.S. Senators answerable to state legislatures is one way. Other possibilities include closing hearings to the public, creating a secret ballot just for judicial nominees, or altering other internal Senate rules.
The current system cannot continue. It is too divisive and shallow minded. Moreover, a Justice who suffers through a bitter partisan fight may find it more difficult to achieve impartiality. Does making the judicial consent process more partisan deliver better judges? Does inviting public opinion help? Does political money inserted in the consent process inspire righteous judges? Can good-looking people with brilliant athletic, musical, and other physical talents aid the process? In other words, the current process is inherently dominated by impartial politics so how can we expect judges to behave impartially? How can we expect judges to respect the legal system if the process for selecting them is disrespectful?
J. Inspiring Virtuous Public Servants
Would the Senate be more virtuous if state legislatures elected Senators? It is unfair to assume so, but it is perfectly fair to wonder.
Internal rule adjustments, like eliminating salaries or instituting lifetime bans on lobbying and special interest work, might temporarily inspire confidence in Senators. But aside from those cosmetic changes, it would be much better if Senators were simply more virtuous. Would the Senate be more professional, more competent, more intelligent, and more thoughtful if they answered to state legislatures? Before arriving at an answer, consider two points: personal interest and pride.
Having a personal interest, beyond public service, perverts the system. Is there a way to reduce personal interest while encouraging the public interest? For instance, judges are often more revered because they are seen outside the political system. The logical question is how do we elevate Senators to a similar level of reverence? Simply acknowledging that personal interest taints decisions making is a necessary first step. Accordingly, when someone stands to gain financially or win big donations, he or she is incapable of making decisions based on right and wrong. Removing personal gain would help deliver better Senators.
To the second point, pride is an inherent quality found in many public office holders. It can be a devastating vice, but when used correctly it can be useful. While not always the case, prideful people often think they cannot be bought. Likewise, such individuals take their jobs seriously, which means they not easily bullied. Assuming these elements exist, would a state lawmaker be less susceptible to special interest and take the job of selecting a Senator more seriously than most voters? Would that help deliver more qualified people to the Senate?[169]
These points require flexible thinking, so by assuming certain qualities, we can dream about “what ifs”. What if Senators’ personal interest were secondary to public interest? What if everyone who voted for a U.S. Senator felt a sense of pride in not being influenced by marketing or money? What if the people selecting the Senate spent a lifetime acquiring the necessary knowledge to cast an informed vote? Who are the best men and women who could possibly serve in the United States Senate?
K. Money, Money, and More Money
U.S. Senate races are astronomically expensive. During the 2018 midterm election cycle more than $5 billion were spent, mostly on U.S. Senate seats.[170] To put that number in perspective it is roughly the same as the GDP for the country of Fiji and more than the GDP for many of other nations.[171] As a matter of perspective, Goodwill, Habitat for Humanity, the American Cancer Society, and the Nature Conservancy each raise well under $1 billion per year.[172] Do we even want to live in a nation that values divisive political advertisements more than helping the homeless, battling cancer, or preserving natural resources?
Arguing the wastefulness of money spent on U.S. Senate elections is irrelevant, but also obvious. Power and priorities prevail in politics. It appears power can be purchased. By donating money to a candidate who can spend $50 million on TV advertisements, a business gains government subsidies or “earns” priority seating as an industry leader. Likewise, casting dollar votes into politics prioritizes power over helping people – a perfectly respectable position if the donor owns it, but cowardly as a claim of righteousness. Argued another way, how would homelessness in our nation be affected if private donations of $5 Billion were made every two years?
It is not always true that the person who spends the most wins, but there is certainly a tangible relationship – at the least you have to spend money to keep pace with the opponent.[173] Presumably, professional lawmakers such as state legislators are better informed and less susceptible to misinformation and disinformation contained in mass advertisements. For instance, an advertisement saying Candidate X voted against a bill proposing increased spending for the military might be persuasive to someone who does not know hundreds of bills are proposed a year, many voted down so that a better bill with more money passed. Candidate X might have voted the bill down because it allocated money to research instead of tanks, but the average viewer of the commercial might be oblivious. A state lawmaker, presumably, is in a better position to cut through the nonsense and misleading advertisements. Not to mention, when fewer people make decisions, they can ask thoughtful questions and demand answers, something lacking in most political elections.
Stated another way, state lawmakers could run interference between big money and the U.S. Senate, which would allow Senators to do their jobs without constantly begging money. As mentioned later, members of Congress spend more than twenty hours per week seeking campaign contributions.[174] Assuming Senators spend twenty hours per week asking for donations, then the U.S. Senate dedicates well over 100,000 hours per year to pandering for donations.
Affluent individuals spending money on elections could support government programs or charity to serve their goals instead of buying power. Senators could spend more time learning and debating. Nothing is more disgusting than realizing $5 Billon and 100,000 hours were wasted in 2018.
L. Is America Too Democratic?
In fairness, the Seventeenth Amendment is only one of many events trending the United States beyond the democratic framework intended by the Framers. Hindering the Electoral College and the rise of the primary systems, among many other political alterations, have driven American democracy more and more directly responsive to the public. The question remains is a pure democracy the best form of government or does a blended form work better?
What is democratic anyway? In 1934, Adolf Hitler won nearly 90% of the vote to win a democratic election in Germany.[175] In our own time, Vladimir Putin won reelection in 2018 with 77% and leaders in many other countries have recently retrieved similar results. These democratically elected leaders demonstrate how difficult it is to determine with absolute clarity what is and is not democratic. Propaganda, vote tampering, disingenuous pandering, incumbents rigging election laws, Constitutional reform, and many other mechanisms are routinely used to secure votes.[176] Accumulating votes, in other words, may resemble the definition of democracy, but not the spirit of democracy.
In other instances, direct democracy is injurious to nations and the interest of citizens, especially when populist whims control. Protests and angry mobs form easily in the digital age. Manipulation of information and propaganda spread easily too. Combining these observations it is apparent that social media gives each of us a voice and an audience. Perhaps we are so accustomed to pontificating all the time and getting what we want, it is hard to fathom not being in control.
But is it true that people using social media fail to realize the difference between whimsical opinions and more thoughtful considerations? Perhaps, there are subjects above most of us – Justice, liberty, and God to name a few. Perhaps citizens want experts who spend their time studying and working to guide the loftier ambitions of the human soul.
Democracy’s value cannot be overstated, but it remains one of several important doctrines guiding government. Localism, federalism, logic, and separation of powers, for instance, are equally important. Viewing democracy as one of many tools in the box, not the only tool, might serve the nation well.
As discussed before, the Senate was designed to stem the tide on populism, political passions, and mob rule, while guaranteeing virtue. Making Senators more political makes our nation more susceptible to passion over reason. Why reward fecklessness over reason when there is a way to promote good and talented leadership? What is the worst thing that could happen if we made the U.S. Senate slightly less beholden to temporary passions of the citizens? Might they push for legislation for the general welfare of us all? For the United States to achieve its fullest potential, Senators need to be democratically accountable, but not held hostage to democracy.
M. Distracted Driving: Stop Campaigning and Lead
Does the Senate devote too much time and effort to areas that do not benefit the public? Senators spend many hours campaigning for themselves, their party, and either for or against the President. While the job description for U.S. Senate fails to include fundraising, increasingly it is an essential responsibility. A recent report indicates Senators, and members of Congress in general, dedicate more than 20 hours per week raising money. That is time not working, studying, learning, negotiating, drafting legislation, or engaging voters.[177] As mentioned previously, this equates to spending more than 100,000 hours per year on bended knee begging for money.
In addition to the copious hours spent campaigning, Senators neglect many responsibilities. The Constitution charges Congress with many Non-Delegable Duties. Too often, those powers are given to the President. Would a Senate less consumed with campaigning have more time to protect those non-delegable duties and execute the responsibilities granted under the Constitution?
Moreover, Senators expend enormous capital campaigning for or against the President because the two branches share constituents. Congress generally, led by the Senate, needs to stand up to the President, but it remains impossible as long as Congress and President thrive on committing political incest. The President will continue assuming the non-delegable duties of Congress unless Congress puts an end to it. As argued before, that is more likely achieved by separating the constituencies of the two.[178]
The Commerce Clause and “advise and consent” on federal judges, are two additional places Senators should spend their time. If the entire U.S. Senate had prepared as Susan Collins did in the last nomination, the nation would feel a greater sense of stability. Instead, most Senators were campaigning and creating sound bites for the public. Some of them may have gained personally, but the United States suffered and so did public confidence in the U.S. Senate. Could Senators have engaged in a more thoughtful debate if they were not running for office?[179]
Time spent campaigning and raising money equates to waste, especially when it appears the Senate fails to perform its Constitutional duties. Senators need to be held accountable. The public returns 83% of incumbents to office.[180] Perhaps some deserve re-election, but many may not. If the public is unable to ensure Senators perform, then maybe state legislators can.
N. Concluding Reflections
In the Senate, unlike the Presidency and the House, we should consider hiring experts to work in the best interest of the United States of America. Those individuals should be authorities in law making, governing, foreign affairs, health care, social security and Medicare, and a hundred other areas of government. Senators, above all else, represent the United States of America, not political parties.
Senators are tasked with the most important functions of government: treaties, the power of the purse, trying and possibly removing public officials, and “advise and consent” on many important appointments. They should not reflect the average Joe’s ideas, but should be the most talented citizens among us. They should be intelligent, well informed, honest, hardworking, respectful, and otherwise virtuous.
Democratically elected men and women, involved in government daily, are in a much better position to determine who among us is best situated to serve in the Senate. That is a decision for skilled lawmakers who devote time and study to the practice of politics. State lawmakers, in other words, have skin in the game and know the language. “We the people” are heard resoundingly in House and Presidential elections, and might be better served indirectly influencing who goes to the Senate.
There are plenty of measures to curb the unintended ill effects of the Seventeenth Amendment such as campaign finance reform, amending election laws, reducing PACs, and/ or the influence of special interest. Likewise, the Senate can reform its own rules. Erasing the Seventeenth Amendment, like the Prohibition Amendment passed several years later, is just one way to achieve these ends. Perhaps the Senate works best with a measure of democracy, not held hostage to it.
V. Praise for the Seventeenth and Problems with Repeal
The Seventeenth Amendment tried to achieve a number of important goals. For one, it sought to crush corruption in state legislatures and the U.S. Senate. It also aimed to give a voice to the voters, nudging the government in a more democratic direction.[181]
Unfortunately, the Seventeenth Amendment may not have achieved a reduction in corruption. Considering the “majority rule” mentality of our national politics, it did not give a voice to all the participants in our society either. In short, the Seventeenth Amendment may have failed to achieve its objectives.
The Seventeenth Amendment let the American people sing louder, which has merit. Considering the House is the voice of the people, however, it is fair to wonder if creating a homogeneous way of selecting public officials is better than a more diverse system. Sometimes it is advantageous to survey a plethora people for various opinions, while other times an expert opinion is warranted. Usually, both are helpful. In other words, laws benefit from combining experiential wisdom with expert knowledge. The Framers understood the benefits of “mixed” governments.[182] Congress, once upon a time, benefited from both experts and experience.
Practically, repealing the Seventeenth would cause many states to enact legislation circumventing the legislature’s election of Senators. This was occurring before the passage of the Seventeenth Amendment. If that happened, the system would operate as the Framers designed it, giving the states the prerogative to try various methods of governing. Laboratories of thought and experiment would flourish again.
The spirit of the Declaration of Independence and the Constitution prevented one person or body from having total control. More vital now than ever, the guards against the government slipping into a popularity contest remain essential to the survival of the republic. Because a popular President can simply apply popularity to help all his friends become members of Congress, and appoint likeminded judges, the dangers of despotism could soon be realized. Congress and the Supreme Court increasingly look to the President to set agendas. Similarly, states enjoy less independence. These trends will continue unless the original design of the Constitution is restored.
An inconvenient truth of repealing the Seventeenth Amendment is that one party would win and the other would suffer. That means it would not be possible as an isolated measure. But perhaps there is a scenario in the future when it would work. A scenario when state houses are roughly the same and a more comprehensive reform package, like limits on PACs, removing national parties from state elections, and other campaign measures would help. Perhaps the insurgence of a third party would mix things up enough to open the door for a repeal amendment. Or perhaps a total reform package, leaving in place the Seventeenth Amendment, but addressing the negative consequences, is possible now. Would adding a state balance the equation?
VI. Closing Thoughts
Believing strong states respond to the needs of people, federalism unleashes progress, special interest should reign no longer, the President deserves counterbalances, virtuous men and women should serve public office, deliberation can again characterize the Senate, judicial nominees deserve respect, worship of money undermines Senators, and the United States Senate can save “liberty and justice for all,” is manifestly a belief in America. It is also a belief in reform or repeal of the Seventeenth Amendment. These values, and others, can restore the United States Constitution to its rightful place.
While this sentiment might seem slightly exaggerated, it does confront the totality of some of the problems with our political system. A more levelheaded analysis, if you believe in reviving the integrity of the Senate, might be sweeping reforms aimed at restoring some of the basic tenants of American government – not just the hiccups resulting from the Seventeenth Amendment.
Perhaps, it could be argued, altering the way Senators are elected would have no tangible outcome. Assume, momentarily, the same people were elected and voted the same way, then what has changed? Behavior, for one, would change because Senators would certainly have closer and better-informed eyes watching. Additionally, citizens would recalibrate their thinking about government. It might require some mental gymnastics, but it is entirely conceivable that citizens would better grasp federalism, state authority, and the utility of employing states to respond to their needs. While important tangible benefits could be satisfied, such as reducing the influence of special interest and ending unfunded mandates, there are intangible benefits as well.
It has been argued the Constitution is outdated. This was the precise position of Progressives Era politicians and the host of characters who pushed for the Seventeenth Amendment. But remembering the Constitution reveres natural rights and accommodates human nature helps explain its brilliance and continued relevance. It was created to limit the natural tendency of humans to accumulate power, which ultimately gives government the power to infringe on the rights and liberties of citizens. It is, therefore, necessary to reserve fundamental alterations of the Constitution until it is shown we humans have evolved beyond the need for power and control. It might be best to defer to the judgment of the Framers until we determine self-government, liberty, and equality are no longer righteous.
Rethinking the Seventeenth is virtuous, reminding us that laws should be rooted in something deeper than political marketing and offhand social media posts. Media and social media, sound bites, marketing, special interest, money, and dishonesty apparently control the U.S. Senate. These things do not make U.S. Senators better at their jobs and they do not empower the Senate to lead our nation. To the contrary, they make Senators less attentive to “We the People.” So, if the goal is a well-informed, deliberative body of experts devoted to acting and voting in the best interest of the county, then we need to fix the Senate.
The wisdom of the founding is virtuous and good. At times, adjustments need to be made, but the framework remains vital to humanity. Like medical and scientific advancements, the hopes of the Declaration of Independence as personified by the Constitution are wisdom the world now owns; turning away from it invites hardship.
How senators are elected is an enormous influence on our country. For additional reading on the founding of the United States of America, read our “1776” review. You can also follow along on Instagram and YouTube as we review and recommend books from a conservative perspective.
In the end, ancient wisdom might lend itself to solving modern problems.
[1] George H. Haynes, The Election of Senators (1906), p 1.
[2] National Archives, Constitution of the United States – A History
[3] George H. Haynes, p 8
[4] “Framers” refers to the delegates who participated in drafting the Constitution of 1787. “Founders” is used as a broader term for those participating in public life before the Revolution throughout the period and beyond the passing of the Bill of Rights.
[5] George H. Haynes p 2-8
[6] U.S. Const, Art I
[7] U.S. Const, Art I, Section 1
[8] U.S. Const, Art I, Section 3
[9] Gallop – Congress and the Public; Statista – U.S. Congress Public Approval Rating
[10] Gallop Poll
[11] Wall Street Journal -Peggy Noonan; and also the New York Times articles
[12] President Abraham Lincoln, Gettysburg Address. Note, self-government here means we all participate, it is not an advocacy of direct democracy, but that lawmakers are citizens and citizens should participate.
[13] Sandra Day O’Connor, The Constitution: The Essential User’s Guide.
[14] U.S. Const, Art I, Section 3
[15] U.S. Const, Seventeenth Amendment
[16] Amending the U.S. Constitution is accomplished in two ways. Either Congress passes a joint resolution to amend the Constitution and three-fourths the states must ratify it or a constitutional convention is called by Congress or the states (which has never occurred). U.S. Const., Art. V.
[17] Articles of Confederation
[18] Gordon Wood, The Creation of the American Republic (1969) p 131-2. National Archives, Constitution of the United States – A History
[19] Each state had 1 vote, but delegations of between 2 and 7 representatives appointed by the state legislatures
[20] Articles of Confederation
[21] National Archives, Constitution of the Unites States – a History
[22] National Archives, Constitution of the United States – A History
[23] The Great Compromise, also known as the Connecticut Compromise, establishing proportional representation in the House and two Senators per state in the Senate. The agreement satisfied both large and small states.
[24] National Archives, Constitution of the United States – A History
[25] Gordon Wood, The Radicalism of the American Revolution, p 7
[26] The Federalist Papers, Essay 10, p 42 – Fall River Press
[27] Gordon Wood, Republic p 47-8, 53, 65,70
[28] Federalist 10 p 38-44
[29] Federalist 10 p 38-44
[30] Federalist Papers 10, p 41
[31] G. Wood, Radicalization
[32] Gordon Wood, Radicalization
[33] US Const, Art I
[34] Federalist – Hamilton
[35] US Const, Art I, Sec 2
[36] Otherwise the Framers would have elected for the Senate to have been selected by direct, proportional vote. Instead, it was elected by the legislatures of the states and each state gets two votes, which equalizes power among the various States.
[37] US Const Art I, Sec 3
[38] Federalist 62, p 282-3
[39] US Constitution, Federalist 62, 63, 64, 65
[40] John Locke, The Second Treatise of Government (New York: Barns & Noble, 2004).
[41] James Q. Wilson, American Government (6th Edition, Houghton Mifflin Company, 2003) p 14-16.
[42] Federalist 51 p237-8
[43] Gettysburg Address
[44] Dream Speech citation
[45] Churchill had great respect for America and knowledge of it. His mother was American. He praised the Declaration of Independence and system of government. Andrew Roberts, Churchill: Walking with Destiny (2018) p 260.
[46] U.S. Constitution
[47] Tenth Amendment
[48] Federalist 45 p 213. The Federalist Papers is a series of essays written by James Madison, Alexander Hamilton, and John Jay arguing for the ratification of the proposed Constitution. Collectively, they form the most articulate expression of the principles of the Constitution.
[49] The Federalist No. 62 p 283
[50] Anti-Federalist did not support the proposed constitution, desiring instead a governing document closer to the Articles of Confederation. George Mason attended the Constitutional Convention, but did not sign it.
[51] DEBATES IN THE FEDERAL CONVENTION OF 1787, S. DOC NO. 404, 57th Cong., 1st Sess. 10 (1902) (statement by George Mason).
[52] Federalist 62 p 283
[53] Justice Louis Brandeis
[54] Chief Justice Taft – 1922 essay
[55] Articles of Confederation and something else
[56] Const 10th Amendment
[57] Russell Kirk, The Roots of American Order (Wilmington, DE: Intercollegiate Studies Institute 2003), 416.
[58] Federalist 45 p 210-4; James, Q. Wilson p34-5.
[59] Madison wrote this as part of an essay addressing the checks on the fed government. Fed 51 p 237
[60] The Federalist No. 62 p 283
[61] Jeffrey Rosen, “Federalism for the Left and the Right, WSJ May 19, 2017 – CEO of National Constitution Center
[62] Allison L. LaCroix, The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2010), 132-33.
[63] Federalist 9, p 35.
[64] Britannica, Bicameral System
[65] Zywiki, Beyond the Shell, pg 176-78
[66] Federalist 10 p 38-44
[67] The Federalist No. 51 p 238
[68] Joseph Story, Commentaries on the Constitution of the United States 179 (1833); Zywiki, Beyond the Shell, pg 176-78
[69] Gordon Wood, Republic p 409
[70] Federalist 47, p 220-221.
[71] Wilson
[72] Wilson
[73] Britannica, Bicameral System
[74] Wilson
[75] A concern throughout the Federalist Papers is erecting a “partition” between the branches of government. Federalist 51 p 236-40.
[76] Federalist 51 p 236-40
[77] Federalist 51 p 238
[78] Zywiki, Bond the Shell p177 – James Madison, Notes of Debates in the Federal Convention of 1787 (1984).
[79] Federalist 39 – Madison p 174-5
[80] Alexis de Tocqueville, Democracy in America (The University of Chicago Press, 2000).
[81] Madison wrote against “factions” and Jefferson against “elective despotism” and later Tocqueville, all commenting on the same feature of democracy, which is the danger of a majority rule system and the need for safeguards against abuse.
[82] Jefferson, Thomas. Notes on the State of Virginia. Chapter 13, 1782
[83] Federalist 10 p 41
[84] Jeffery Rosen, Madison v. Mob Rule, The Atlantic (2018)
[85] Gordon Wood, Radical, p 261 – quoting from Farrand, ed., Records of the Federal Convention 1, 289.
[86] Federalist Papers – the second quote is Fed 62
[87] US Senate website
[88] Federalist 1, Hamilton and others
[89] Zywiki p 180-183, C.H. Hoebeke, The Road to Mass Democracy: Original Intent and the Seventeenth Amendment, (New Brunswick, NJ: Transaction Publishers, 1995).
[90] Gordon Wood, Radical, p 254-5
[91] Gordon Wood, Republic p 19, 197-8.
[92] Norman F. Cantor, Antiquity: From the Birth of Sumerian Civilization to the Fall of the Roman Empire (2003) p 16, 19, 22
[93] Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992); John Locke, The Second Treatise of Government (New York: Barns & Noble, 2004)
[94] Wood, Republic p 19, 197-8.
[95] Wood, Republic p 19, 197-8.
[96] Norman F. Cantor, Antiquity: From the Birth of Sumerian Civilization to the Fall of the Roman Empire (2003) p 19, 22
[97] Wood, Republic
[98] Wood, Republic p 19, 197-8. > civilization book?
[99] US Constitution
[100] Federalist Papers (I think 78)
[101] According to…WSJ or Kavanaugh or who?
[102] Susan Collins, Senate Floor Speech on Brett Kavanaugh, Washington, D.C. (October 5, 2018), US Senate; WSJ Peggy Noonan
[103] Radicalism, p109
[104] Wood, Radicalism p 254-5; Federalist 10 and 57.
[105] Constitution Center
[106] Const Convention recs
[107] The Bill of Rights guaranteed the government could not infringe on the natural rights of the citizens. A federal law, for instance, preventing a citizen from exercising his or her natural right to practice a particular religion was made illegal by the First Amendment. The Bill of Rights added to the structural framework of government created by the Constitution, a precise enumeration of additional natural rights. Furthermore, the Bill of Rights is not a grant of rights, but the protection of natural or God given rights from the government.
[108] U.S. Constitution
[109] George Washington’s inauguration took place at Federal Hall in New York city near Wall Street on April 30, 1789.
[110] National Archives
[111] Note, Adams and Jefferson did not sign because they were serving as Ambassadors to Great Britain and France, respectively.
[112] United States Senate website, Landmark Legislation: The Seventeenth Amendment to the Constitution; Also George H. Hayes, The Election of Senators (1906)
[113] United States Senate website, Landmark Legislation: The Seventeenth Amendment to the Constitution; Also George H. Hayes, The Election of Senators (1906)
[114] David Schleicher, The Seventeenth Amendment and Federalism in the Age of national Political Parties. Page 14
[115] United States Senate website, Landmark Legislation: The Seventeenth Amendment to the Constitution; Zywicki, p 195-200. Also, Bybee, Jay S. (1997). “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment”. Northwestern University Law Review. Northwestern University School of Law. 91 p 538-9.
[116] David Schleicher, The Seventeenth Amendment and Federalism in the Age of national Political Parties.
[117] Id.
[118] This was known as the Oregon system and was used by 28 of the 45 states by 1908. David Schleicher, The Seventeenth Amendment and Federalism in the Age of national Political Parties.
[119] Zywicki, p 195-200. Also, Bybee, Jay S. (1997). “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment”. Northwestern University Law Review. Northwestern University School of Law. 91 p 538-41.
[120] Dictionary of American Government and Politics – “Progressive Era”
[121] US Constitution; The Constitution has been amended only 27 times and there are currently no amendments likely to pass in the near future. The last was the 27th Amendment in 1992.
[122] Probation was later repealed. Women’s Suffrage was a long overdue fulfillment of the Constitutional principles.
[123] US Const
[124] The New Deal created massive government programs under F.D.R. designed to dig the United States out of the Great Depression by the government building infrastructure and employing large numbers of people. Britannica, New Deal.
[125] Zywicki; Scott Gaylord, NYT, States Need More Control Over the Federal Government (July 17, 2013).
[126] US Constitution, Seventeenth Amendment 1913
[127] Politically, massive shifts were afoot in the early 20th Century. Theodore Roosevelt ushered in the new century, then passed the torch to William Howard Taft. Roosevelt then ran against Taft as a third-party candidate, dissatisfied with the way Taft governed, a move which split the vote and paved the way for Woodrow Wilson’s election. In 1913, Wilson assumed office.
[128] Additionally, some argue the rise of political parties, dominance of federal issues, and modern society all contributed – zywiki and schnider and debates
[129] New York Times, Jeremy W. Peters, “In Divided Era, One Thing Seems To Unite: Political Anger (Aug. 17, 2018)
[130] Gallop – Congress and the Public; Statista – U.S. Congress Public Approval Rating.
[131] Scott Gaylord, NYT, States Need More Control Over the Federal Government (July 17, 2013).
[132] Usurping the responsibility of states to prosecute crimes within a state is not only a violation of state sovereignty, but also wastes money and a way around the constitutional protection against double jeopardy. Scott Gaylord, NYT, States Need More Control Over the Federal Government (July 17, 2013).
[133] Citation needed – show federal court waste and overlap with state courts
[134] Britannica, Commerce Clause
[135] Tax Policy Center – taxpolicycenter.org
[136] The Balance, Unfunded Mandates, Examples, and the Need for UMRA (August 2, 2018).
[137] The Tenth Amendment reserves all power not granted to the national government to the states or the people.
[138] Who Votes for Mayors? www.whovotesfor mayor.org
[139] Gaylord, NYT
[140] Zywicki pg 175 and 231
[141] The Balance, Unfunded Mandates
[142] The Balance, Unfunded Mandates
[143] While the Unfunded Mandate Reform Act has rectified part of the problem, the idea and practice continue. The Balance, Unfunded Mandates
[144] Jeffrey Rosen, Federalism for the Left and the Right, WSJ (May 19, 2017)
[145] Id.
[146] Gary Hart: America’s Founding Principles are in Danger of Corruption, Time (From The Republic of Conscience 2015);
[147] Michael Maiello, Corruption, American Style, Forbes (Jan 22 2009). See also, Todd Zywiki, Beyond the Shell, pg 179 (Holcombe at 178)
[148] Todd Zywiki, Beyond the Shell, pg 179 (Holcombe at 178)
[149] Todd Zywiki, Beyond the Shell, pg 179 (Holcombe at 178)
[150] Gary Hart: America’s Founding Principles are in Danger of Corruption, Time (From The Republic of Conscience 2015); Michael Maiello, Corruption, American Style, Forbes (Jan 22 2009).
[151] The donation, of course, does very little. The donation along with a promise for all the members of an entire organization to donate plus the promise of a series of mega donations to Political Action Committees is what really moves the needle. This, however, is an entirely different subject.
[152] Federalist 47-51 generally
[153] Britannica, New Deal
[154] Zywicki, pg 174-175
[155] Senate races are often testing laboratories for Presidential runs. Not just the personalities of a candidate, but where political scientist for major parties’ test ideas, words, slogans, etc.
[156] Jeffery Rosen, Madison v. the Mob, The Atlantic (2018)
[157] Citation needed – wsj or nyt, and find something on how social media is harmful
[158] International Churchill Society – Quote
[159] Scheldier
[160] Who Votes for Mayor? – whovotesformayor.org
[161] Cite where founders wanted deliberative body – Federalist papers, Const
[162] Wall Street Journal article, also NYT
[163] A term used to describe majority rule asserting itself over the minority.
[164] NYT, Carl Hulse, “No Room for Debate: Senate Floor Fight Over Immigration Is a Bust (Feb. 18, 2018).
[166] Gordon Wood, Republic 19, 197-8.
[167] Andrew Sullivan, American Has Never Been So Ripe for Tyranny, New York Magazine (May 2016).
[168] Bork, Thomas, and Kavanaugh prove the current process is corroding.
[169] Need a good quote on Pride and other reference
[170] Can we figure out how much exactly on Senate and most expensive races?
[171] IMF list of GDP
[172] Forbes Magazine – “The Largest U.S. Charities for 2016 – William P. Barrett
[174] Huffington Post article
[175] Robert Andrews? Churchill: Walking with Destiny, p 380.
[176] Bloomberg, 2018 democracy in decline
[177] Huffington Post article, and others picked it up like Washington Post and CBS.
[178] Need so many citations
[179] Peggy Noonan WSJ
[180] CBS report, Incumbents in Congress are hard to beat – and a lot of it has to do with money, (April 26, 2018).
[181] Zywiki p180
[182] The Federalist Papers 47-51
