Constitutional Myth #9: The Election of Senators 'Harms' the States


The 17th Amendment removed a firewall of privilege -- which is why the Right doesn't like it

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Just after the 2010 election, Justice Antonin Scalia decided to explain the parts of the Constitution he doesn't like.

"The 17th Amendment has changed things enormously," Scalia said. "We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the twentieth century."

A sinister "burst of progressivism" is unconstitutional -- and so, Andrew Napolitano of Fox News insists, is the 17th Amendment itself, because it was added "at the height of the progressive era, when the government started telling us how to live."

Today, far-right dogma insists that popular election of senators marked the end of their mythical Great Republic. Former Sen. Zell Miller explained that "instead of senators who thoughtfully make up their own minds, as they did during the Senate's greatest era of Clay, Webster and Calhoun, we now have many senators who are mere cat's paws for the special interests." George Will wrote in a 2009 column that "the Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate -- Henry Clay, Daniel Webster and John Calhoun -- and thrived." 

When the far right says the 17th Amendment harmed "the states," they mean it harmed state governments.

Wouldn't it be nice to live a country with such a noble history? Alas, we live in this one.In the days of the "great" triumvirate, the Senate was the firewall of slavery, and all three of them did their part to protect the South's interests. (Even Webster, a Massachusetts man, threw in with slavery when the time came to defend the grotesque Fugitive Slave Act of 1850.)

When Reconstruction gave way to the Gilded Age, the Senate, still elected by the legislatures, became a different kind of firewall: the guardian of corporate privilege. That's what today's repeal advocates want back.

As for the "special interests," by 1890, they owned the state legislatures. It's a lot cheaper to buy up a small number of lawmakers than to influence a statewide election. Railroads, banks, mining companies and other corporations showered state officials with free passes, gifts, and outright bribes.  In 1906, journalist David Graham Phillips scored a publishing sensation with The Treason of the Senate, an expose of corporate influence that gave rise to the term "muckraker."  Phillips wrote that "the Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be." That was because "a man cannot serve two masters. The Senators are not elected by the people. They are elected by 'the interests.'"

When special interests couldn't win election for their stooges, they often simply refused to allow any Senator to be named. Between 1890 and 1900, no fewer than fourteen Senate seats remained vacant because of legislative deadlock. In Oregon in 1897, the State House was so badly split over the Senate vacancy that it never convened at all. As George H. Haynes, the leading historian of the Senate wrote in 1912, legislative elections of Senators had "led not merely to an occasional assault and to fist-fights of the mob, but to threats of organized attack and resistance, and to the reign of martial law."

The 17th Amendment was not some ill-thought-out "burst of progressivism." The people didn't get drunk and wake up with a tattoo. It resulted from an extraordinary grass-roots campaign over thirty years, one of the most sustained and powerful in American history.  The movement reached flood stage after 1900. When the Senate refused to approve direct election in 1910, popular fury led to the defeat of ten of the "no" votes. The next Congress meekly agreed to the amendment; it was ratified by state legislatures in less than eleven months -- one of the fastest ratifications in American history.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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