Depending on the People: 100 Years of the 17th Amendment

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. 

- James Madison: Federalist 51

The Constitution sought to include both state governments and the people in the two houses of Congress.  Direct elections for the House ensured a place for the people in the national government.  The Senate, by contrast, would be the voice of the states.   According to John Jay in Federalist 64, the populace had not yet become familiar with foreign affairs.  Therefore, elected state officers would be in the best position to select those of the highest intellect and integrity to promote national interests to the United States Senate.  Hence, Art. 1 Sec. 2, par. 3.

Having state legislatures select senators was one way to prevent extreme centralized federal power in a time of great uncertainty.  It was unclear how the unified federation would function and what types of evils or corruption lay ahead.  Thus, state legislative selection of senators was intended in part as a check on unwieldy government and in part as a means of establishing the new country as one of educated and wise men.  But, the Framers understood that this indirect election was hardly perfect; it was acknowledged, even in its day, as one way to kick the can down the road for future generations to ponder about the powers of the individual states in relation to the federal government. The more things change…

Parties and factions were well known to the Framers who sought to minimize their damage.  However, it is also possible that they did not anticipate the pending power of party bosses, the corruption of cronyism and the perils of patronage.  But, it soon became clear that state political parties (rather than elected officials) would hand-select Senators instituting a system neither intended nor desired.  In states where one party held sway, the legislature voted for the party stalwart.  In states where the legislature was divided, the decision was so contested that states could go without United States Senators, sometimes for years.  Art.1 Sec. 2 grew not to protect federalism in the sense of state autonomy; it became a means of promoting people significant in party politics in a particular state...something akin to an arbitrary, appointed government - something the Framers found odious.  As early as 1826, bills became commonplace on the House floor to insist on direct election of Senators.

Leading up to the Civil War, issues couched in federalist cloaks took center stage in a very ugly way; indeed, the idea that federalism itself is linked to preserving the horrific institution of slavery diminishes the import and beauty of the dual sovereign system and really misunderstands its true basis and why it matters.  John C. Calhoun (NOT, as some yahoos declare, Thomas Jefferson) started talking about states as if they were people.  People have rights; states have powers.  There is no such constitutional concept as "states rights".  States were at the Congressional table by legislatively electing United States Senators, but that was not as of right - it was more of an experiment.  Calhoun himself was a Senator appointed by the South Carolina legislature and thus query his loyalty under the indirect election construct: was it to the nation, to the people of South Carolina or to the officials elected to the South Carolina Legislature?  Indeed, the pretenders to the throne of federalism sought to secure their own, not the people's, rights.  They come today the same but in different garb called SuperPACs; new shields to wield the paper sword.  Neither the early "state's rights" advocates not the current ones seek to empower the people of the individual states; they seek to silence them. 

The franchise of voting is and has long been an American ideal.  Indeed, after the bloody Civil War ended, the Reconstructionist Amendments promised that the federal government would insist upon enforcing the elimination of slavery and indentured servitude, would decide who was a citizen and how to ensure protection of individual rights, and finally that there would be no infringement upon the fundamental right to participate in one’s own government due to race.  The 15^th Amendment seeks to ensure, not just presence at the ballot box, but also an equal presence without dilution of any person’s vote.

After the Civil War, after the Reconstruction Amendments, and while certain powerful members of formerly rebellious states were seeking to enforce voting discrimination as deeply as they could under the guise of "state's rights", several bribery cases occurred in state courts – some were bribes to vote for United States Senators (see, i.e., In re Wellcome, 23 Mont. 140 (1899)); others were accusations and convictions for United States Senators taking bribes (i.e. State v. Davis, 18 Del. 139 (1899)).  The system of state legislature elections of senators left the people with no voice but also the Senators with no accountability. As in the antebellum period, some legislatures deadlocked on selecting United States Senators leaving (depending on the lens one views) either the states or the people of those states without any representation in the Senate, sometimes for several years.  Everything intended by the initial idea of the state legislatures electing Senators had been destroyed by party factions; people were seeking to buy Senate seats and voters - even newly minted ones - were losing their one person-one vote mandate.

An odd twist of history includes the Treason of the Senate series in W.R. Hearst’s Cosmopolitan magazine in 1906.   The series portrayed a Senate for hire, beholden to corporate interests and devoid of loyalty to the state or the people.  The groundswell prompted a bill in the Senate to amend the Constitution which was roundly opposed by the entrenched factions – Republicans in the New England states and Democrats in the Southern ones – but the measure gained approval and passage by the required margins in both houses of Congress in May, 1912.  The first state to ratify the 17th Amendment for direct senate elections was the Commonwealth of Massachusetts; the measure gained inclusion into the United States Constitution 100 years ago (Southern strongholds including Virginia, Florida, Georgia, South Carolina, Mississippi and Kentucky never did vote to ratify – Utah rejected it outright in 1913).

In 1912 and 1913 the question was not one of federalism; those living at the time understood the radical, cataclysmic alteration of the relationship between the states and the federal government that occurred with the Reconstructionist Amendments.  The question was one of increased democracy.  It was one of fairness and it was one of inclusion.  The 17th Amendment intended to rectify the crimes of bribery and influence that had infused the upper house of Congress.  Indeed, the Amendment passed as House members enjoyed malapportionment, where rural votes diluted urban votes in many states by being given greater weight (perhaps the 17th Amendment foreshadowed modifications destined for that chamber.)  It was before effective voting rights legislation, the same legislation currently under attack.   The idea was to increase the franchise and therefore reflect better the American people and denounce the influence of special interests.

Almost immediately, the 17th Amendment altered the composition and texture of the Senate.  With Wilson in the White House and his progressive agenda on the table, direct election literally changed the Senate from Republican to Democrat in one election cycle.  Without this change, America may have been denied the compassionate brilliance of Brandeis on the Court, reforms in labor, banking, tariffs, and health care, all of which paved the way for bolder programs and ideals later administrations would propose.  Without the change from the state legislatures choosing Senators to the people, it is unclear how long it would have taken the country to propose, pass and ratify the 19^th Amendment.  

States always had the power to increase the franchise and it was always – and is now - in their interest to implement more liberal voting opportunities.  The more people eligible to vote, the greater the representation in Congress, the more power the individual states can wield.  It has ever been thus and yet the fundamental right of voting has continually been restricted, diminished, diluted and denied by state governments, the very entity the Framers believed would seek to increase, not decrease, its voice in the national government.  This was true from the earliest compromises including the horrid 3/5 compromise of Art. 1 Sec. 2.  Had all people counted for apportionment in the House of Representatives, the slaveholding states would have had MORE power, not less, in Congress; it was the slaveholding states who fought to have slaves count fully for apportionment.  If, as some at the time suggested, the wholly disenfranchised not counted at all for apportionment purposes, states would have had, early on, determined means of increasing the franchise and perhaps would have ended slavery sooner. That is, if apportionment were really apportionment of eligible voters rather than voiceless bodies, states would have an incentive to broaden the population eligible to vote.  It does not work that way which is exactly why, for example, towns with prisons full of inmates ineligible to vote want the inmates to count for apportionment but not for any other purpose.  A true one-person one vote mandate would only count eligible voters so as not to increase or dilute voting power.

Those who seek to restrict and dilute and deny voting rights today argue issues of federalism as if it were 1789 and the Constitution had not been amended (and also as if they understood the idea of federalism - it is NOT to empower individual people in federal matters, but to solidify powers of individual states).  No Amendment to the Constitution - not even the 10th - ever sought to increase the powers of state government.  The franchise Amendments, the 15th, 17th and 19th all sought to wrest powers away from the states and into the hands of the people directly.  Those who argue for state powers under the inaccurate and improper moniker “state’s rights” cannot also claim that they individually want the right to vote for their own Senator – or for the African Americans and women involved in that particular and odd movement – the right to vote at all.  It’s one Constitution; we cannot cherry pick the parts we like and pretend the rest does not exist.  Where federalism works and has ever been successful is where states become laboratories for improvements and progress including advancing equality on social issues and civil rights and creative enterprise.  Every other experiment in federalism leads to a contraction, rather than expansion, of the voice of the people thereby restricting democracy and freedom. 

A major contributor to passing the 17^th Amendment was disgust that United States Senate seats were up for sale in state legislatures.  They still are under new guise.  Indeed, query whether the 17th Amendment could impact Court rulings on the 1st Amendment thereby limiting outside influence at least in United States Senate races.  That is, unlike the language of Art. 1 in regard to House seats where "the People of the several states" elect House members, the 17th Amendment declares, "[t]he Senate of the United States shall be composed of two Senators from each state, elected by the people thereof..."

Massachusetts is engaged in a special election for the remainder of the term for our Class 2 Senate seat.  This is a post once held by Edward Everett whose lengthy speech preceded Lincoln’s Gettysburg Address, by John Weeks who initiated a federal land preservation act (and also his son, Sinclair Weeks), by Edward Brooke, the only elected African American Massachusetts Senator, by Paul Tsongas, the first former Peace Corps volunteer elected to the Senate, and by John Kerry, the current United States Secretary of State.  It is, indeed, the People's Seat and the Senator should be elected by the people of the Commonwealth without influence from special interests.

Although the Democratic candidate in the special election has requested the “People’s Pledge” that neither candidate benefit from special interest issue-oriented advertising, his opponent has not agreed.  Millions of dollars will pour into this campaign from unknown, undisclosed entities seeking to sway the votes of Bay Staters in an effort to corrupt this election in ways even more extreme than the scandals leading to ratification of the 17th Amendment.  Ironically, if the senate seat were still controlled by the Massachusetts Legislature, the result would be a foregone conclusion.  Though that is no answer; any election is better than legislative appointment.  While the people of Massachusetts have the constitutional right to elect their United States Senator by direct ballot, it sure looks like the seat is still up for sale.  Happy Centennial 17th Amendment; may your quest for democracy be fulfilled.