It was Fisher Ames who perhaps most exquisitely summed up the intent of the Framers of the Constitution when it came to the purpose of the Senate as a guarantor of the interests of the states and the role of those who would serve in the Senate.
During the Massachusetts Ratification Convention, Ames -- who would be elected to the First U.S. Congress -- described senators as "the ambassadors of the states."
That being the case, did the late John McCain serve the best interests of Arizona or himself during his career? Did a majority of Utah citizens and/or those in the legislature approve when Mitt Romney voted to convict Donald Trump when the president was impeached?
Endless examples abound. Yet more to the point, if state legislatures were in charge of sending senators to Washington, D.C., would these individuals and others like them have been there to begin with?
Design of the Framers
For good or ill, the United States Senate has been unmoored from its original purpose and function for over a century, adrift from the concept of a body composed of ambassadors from the state legislatures since the April 8, 1913, ratification of the Seventeenth Amendment.
Senators were to be the voice of those state legislatures in Washington, D.C. They were to provide necessary checks on the executive and quash the potential tyranny of the majority in the House.
Article I, Section 3 of the Constitution contains the 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."
During the debate over the composition of the legislature, George Mason -- the patron saint of Convention of States -- advocated for the states to be adequately represented in the federal structure:
According to The Debates in the Several State Conventions, edited by Jonathan Elliott, “Mr. Mason then spoke to the general question – observing on the propriety, that the second branch of the national legislature should flow from the legislature of each State, to prevent encroachment on each other and to harmonize the whole.”
In short, 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. 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.
The longer terms provided for senators as opposed to those in the House charged the Senate with tempering what the Founders believed might be the fervor and intensity of populist sentiment in the House.
This concept was illustrated by the story -- published in a January 1884 edition of the popular Harper's New Monthly Magazine -- of a supposed breakfast meeting between George Washington and Thomas Jefferson during which Jefferson was said to have critiqued Washington's support for a bicameral legislature:
"Why," asked Washington, "did you just now pour that coffee into your saucer, before drinking?"
"To cool it," said Jefferson, "my throat is not made of brass."
"Even so," replied Washington, "we pour our legislation into the senatorial saucer to cool it."
Because Jefferson was on record as supporting a bicameral Congress, the anecdote is almost certainly apocryphal. But it expresses the truth of the Founders' hope for the Senate.
"Progressive" Reform
Yet many remained cool to the principle of state legislatures sending ambassadors to the Senate, particularly when -- as sometimes occurred -- some states did not have full representation in the Senate because of the dithering of legislatures in electing those ambassadors.
Initial moves in the 19th century to amend the Constitution in order to provide for the direct election of senators failed to gain traction, but gained momentum later in the century and into the early 20th century, a period known as the Progressive Era.
The Populist Party included a plank supporting the direct election of U.S. senators in its Omaha Platform of 1892. In 1908, Oregon's legislature passed a law basing the selection of senators on a state primary election to identify the voters' choice for senator and simultaneously pledging state legislative candidates to honor the result of the primary.
Public opinion began to move toward the direct election of senators, and one of the most significant influencers in that regard was newspaper and magazine publisher William Randolph Hearst. His popular outlet, Cosmopolitan, published a series of nine articles in 1906 written by novelist and journalist David Graham Phillips arrestingly entitled "The Treason of the Senate."
Phillips accused large corporations of buying off and/or controlling state legislators all over the country in order to ensure that big business, in turn, largely controlled the United States Senate. Among the chief targets in the series was Sen. Nelson Aldrich, whom Phillips accused of bribery and perjury.
Phillips himself was accused of exaggeration and questionable journalistic methods (perish the thought!), and was among the scribes labeled as "muckrakers" by President Theodore Roosevelt.
Yet the series, which portrayed the Senate as a millionaires' club that was comfortably insulated from public reach, resonated with millions of citizens and swayed public opinion in the direction of reform. As Abraham Lincoln well knew, in the United States, "public sentiment is everything."
Shrewd politicians of the day seized on the wave. Populist William Jennings Bryan, whom we met earlier in this series, was adamant in his insistence that senators be directly elected by the voters. due in no small part to his view that incumbent senators were "too far removed from the people, beyond their reach, and with no special interest in their welfare."
More states began to adopt some form of Oregon's primary system for electing senators and, not surprisingly, reform-minded political candidates began winning seats to the U.S. House and Senate. The stage was set to modify Article I, Section 3.
The House of Representatives approved language to amend the Constitution to allow for the direct election of senators in 1910 and 1911. However, these proposals included what was deemed a "race rider," which would have prevented federal action in cases of voter suppression based on race. An amendment that eliminated the rider was accepted, and the language that would become the Seventeenth Amendment cleared Congress in 1912.
The popularity of the direct election of U.S. senators was evident in the rapidity of the proposed amendment's ratification. Less than a year after Congress advanced the language to the states, the Seventeenth Amendment was ratified when Connecticut approved on April 8, 1913.
Calls to Repeal
Former Arkansas governor Mike Huckabee, a COS endorser and current nominee for U.S. ambassador to Israel, has called for the repeal of the Seventeenth Amendment, arguing that senators chosen by their state legislatures are more likely to respect the Tenth Amendment and return balance to the structure of the federal government.
Perhaps the most prominent critic of the Seventeenth Amendment is COS endorser Mark Levin, whose bestselling book The Liberty Amendments includes a detailed chapter arguing for the repeal of the amendment. Levin contends that the Seventeenth Amendment destroyed the Senate as the protector of minority rights, and as the chamber in which the states equal input regarding the policies and direction of the federal government.
Interestingly, Levin proposes an amendment that not only repeals the 17th Amendment to return the election of senators via state legislatures, but 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 perhaps the option would remain and be foremost in the mind of senators who often -- if not always -- omit or ignore the interests of the states they purport to represent.
Whether you believe it to be an unconscionable departure from original intent, or a necessary reform signaling progress, the Seventeenth Amendment is one of the most consequential of changes to the Constitution. It altered the structure of Congress and the weight that states have in its proceedings, in addition to the perspective and actions of individual senators.
The amendment's evolution and consequences are well worth consideration, as is the fact that just as George Mason insisted that the Senate be the chamber that represented the states in the federal government, he ensured that the states have recourse should they decide to reclaim such balance through Article V.
