This is the first in a series of articles that will focus upon issues that a Convention of States may address. This month’s topic is repealing the 17th Amendment of the United States Constitution, which permits the direct election of United States Senators and replaced the language of Article I, whereby senators were elected by state legislatures.
If the several state legislatures had the power to recall United States senators that they had sent to Washington, would Sen. Mitt Romney have voted to convict and remove Donald Trump from the presidency?
Would senators such as Elizabeth Warren, Cory Booker, and Bernie Sanders have focused so much time, effort, and money on presidential campaigns on pain of recall and the loss of their public offices?
Would the late Sen. John McCain have been so eager an aisle-straddling “maverick” if the Arizona state legislature had enough of him representing John McCain more so than the state of Arizona?
What if the North Carolina legislature had the power to recall Sen. Richard Burr for his insider trading and reacted before whatever kabuki theater ethics committee of fellow club members slapped him on the wrist?
Repealing the 17th Amendment to the United States Constitution would return state legislatures to their intended status and role in the federal government.
Like almost everything else in American government, the United States Senate has long been unmoored from its original purpose and function. The Framers designed the Senate to be a deliberative body comprised of two ambassadors from each state--ambassadors sent there by the legislatures of those states.
Senators were to be the voice of the state legislatures in Washington. They were to provide necessary checks on the executive and quell the potential tyranny of the majority in the House.
The 17th Amendment--written and ratified in the populist and misnamed progressive fervor of the early 20th century--obliterated that arrangement. Upon its ratification in 1913, senators were transformed from ambassadors to free agents and have largely acted as such ever since.
This was and is in direct contravention of the Founders, and it has come at great cost to the bicameral nature of Congress, state sovereignty, and republican government.
Direct election of senators is said to be more democratic than the language of Article I of the Constitution. That is true, in a sense. But the Founders did not establish a pure democracy. They established a federal republic with the Constitution.
One of the most comprehensive and accessible histories of the development of Article I, Section 3 of the Constitution and its clause regarding the election of senators (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof”) and the subsequent state ratification debates, is in constitutional scholar, radio host, and Convention of States supporter Mark Levin’s book The Liberty Amendments. Published in 2013, it is just as relevant today.
Levin thoroughly explains the various perspectives of many delegates to the Constitutional Convention about the nature and composition of the Senate and how its members would be chosen. The Liberty Amendments also contains valuable footnotes with sources that are well worth researching to better understand the reasoning of those delegates.
The most valuable aspects of Levin’s chapter about repealing the 17th Amendment are twofold.
First, Levin analyzes and explains why the function of the Senate was so important. The Framers of the Constitution desired a separation of powers with checks and balances.
At the federal level, the House of Representatives would be the body that most directly represented the citizens. States with larger populations would have greater representation in the House.
As Levin points out, the Senate was designed to be a protector of minority rights and provide the states equal input regarding the policies and direction of the federal government.
Just as importantly Levin proposes an amendment that repeals the 17th Amendment to return the election of senators via state legislatures and gives those legislatures the power to recall senators “by a two-thirds vote.”
The two-thirds clause is significant. Senators would not be removed merely at the whim of a meager majority in state legislatures. But the option would remain and be foremost in the mind of senators. They would be required to turn their attentions away from national lobbying groups and Georgetown salons. They would be beholden to the interests and demands of their states and localities.
Levin utilizes the passage of the legislation the Patient Protection and Affordable Care Act (Obamacare) to demonstrate the value of this solution. Following the passage and signing of the legislation, 27 states joined federal litigation to overturn it. However, “the law was passed in the Senate by a large majority of sixty votes. In Virginia, both senators…voted for Obamacare, despite strong opposition from Virginia state officials.”
In situations such as Obamacare, would senators be as inclined to go against the policy preferences of state legislatures if they knew they could be recalled for going against the interests of their state? Perhaps a few might be in search of a “Profile in Courage” award, positioning themselves for a presidential run or buck their legislatures out of sheer vanity.
But the specter of losing their position of influence would likely restrict the free agency of the likes of Romney and McCain or the reliance upon being a part of “the club” on which people like Burr may be banking. That is precisely the check on “popular” decision-making style of the House and the influence of the states in the federal government that was envisioned by the Framers of the Constitution.
I recommend The Liberty Amendments without reservation. The history is engaging, and the proposals are worthy of consideration as COS continues to move forward.
