17th Amendment: How it Broke the Safeguard Against Consolidation

By: Michael Boldin

 

When the framers designed the Senate, they envisioned it as a safeguard for the states, with a key component being state legislatures choosing senators instead of the people at large. Federalists repeatedly assured the Anti-Federalists that because of this structure, their concerns about a total consolidation (or centralization) of power that would swallow up the states – was wrong.

In 1913, the 17th Amendment removed this critical part of the system.

Designing the Senate in this fashion was the result of what is now called the “Great Compromise” in the Philadelphia Convention. It is sometimes called the “Connecticut Compromise” because of the leadership of that state’s delegation: William Samuel Johnson, Oliver Ellsworth, and Roger Sherman.

After weeks of debating the Virginia Plan (learn more here) – which would have created a national government with nearly unlimited power, things started to take a turn in June. John Dickinson of Delaware said he “considered it as essential that one branch of the Legislature shd. be drawn immediately from the people; and as expedient that the other shd. be chosen by the Legislatures of the States.”

But it wasn’t until July that the Connecticut trio – along with Benjamin Franklin – worked in committee to produce an early version of what was finally approved by the Convention. (learn more here)

The constitution sent to the states for ratification had a senate where states would have equal representation, and state legislatures would elect senators for six-year terms.

During the ratification debates, federalists vehemently supported this system, even where they weren’t fully in favor of it. James Madison, for example, in Federalist 62 – called it a “lesser evil.” Madison – like others who were pushing for an even stronger national system – wanted the representation in the Senate to “have a PROPORTIONAL share” – rather than equal numbers of senators for each state.

And even though Madison thought equal representation was, at best, a lesser evil – when it came to the method of choosing senators – by state legislatures – he had no such caveats. He felt this was an important part of the system, because it 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.”

Writing as “An American Citizen,” Tench Coxe took aim at Anti-Federalist fears that the Senate – even as originally structured – would quickly become a permanent or baneful aristocracy, with most senators serving for life.

Coxe viewed the selection of senators by state legislatures as an important division of power because they would “feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence, and are moreover to remain the immediate guardians of the people.”

Furthermore, he argued state legislature selection of senators would ensure they would be “detached, as much as possible, from local prejudices in favor of their respective state by having a separate and independent vote,” bound by “his person, honor and character.” [Emphasis in original]

In North Carolina, James Iredell also told those voting on ratification that this structure of the senate was an essential security against the kind of system from the British they seceded from.

“The manner in which our Senate is to be chosen, gives us an additional security. Our Senators will not be chosen by a King, nor tainted by his influence.”

Federalists also argued that this structure would serve as a defense against too much democracy – which would lead to faction and tyranny. John Jay put it like this in Federalist 64:

“The Convention … have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.”

Some advocates of the Constitution also made the case that this mode of choosing Senators would be a tool of self-preservation for state governments against the potential of federal power essentially annihilating them. James Wilson put it this way in the Pennsylvania Ratifying Convention:

“In the system before you, the Senators, sir, those tyrants that are to devour the legislatures of the states, are to be chosen by the state legislatures themselves. Need anything more be said on this subject?”

In other words – the mere existence of the federal government would depend on the state legislatures.

That’s how James Madison put it in the Virginia Ratifying Convention, “This election of one branch of the Federal, by the State Legislatures, secures an absolute dependence of the former on the latter.” [emphasis added]

Gov. Johnston of North Carolina was even more forceful with this view, “As long as the state Legislatures have it in their power not to choose the Senators,” he said, “they can put an end to the general government by refusing to choose Senators.” [emphasis added]

A number of leading Federalists took the position that this part of the Constitution was like a last line in the sand – a bulwark to prevent what everyone considered total tyranny – a completely consolidated system. For example, James Madison:

“When we come to the senate, its members are elected by the states in their equal and political capacity; but had the government been completely consolidated, the senate would have been chosen by the people in their individual capacity, in the same manner as the members of the other house.” [emphasis added]

That’s exactly what happened with the passage of the 17th Amendment.

Fisher Ames of Massachusetts forcefully argued that “too much provision cannot be made against a consolidation,” and explained – like Madison did above – that election of Senators by a popular vote as in the House of Representatives “would totally obliterate the federal features of the constitution.”

He continued, warning that changing that part of the system would give terrible results, “A consolidation of the states would ensue, which, it is conceded, would subvert the new constitution.” [emphasis added]

And in case it hasn’t been said enough already – that’s exactly what happened with the passage of the 17th Amendment.