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

"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." 

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.

Did the 17th Amendment in some way harm the states?  The answer depends on what you mean by state. If by "California," say, you mean the people of California, the answer is clearly no. Senators are still elected by state, and still work hard to represent their states on Capitol Hill. Senators consult with governors and state governments and advocate for their interests on the floor. The state governments maintain effective lobbying presences in Washington, and, as a result, general federal statutes often include provisions exempting state governments from their provisions or permitting state governments a significant say in how federal programs are administered. But the legislators don't call the shots: senators must closely attend to what their people want if they want re-election. And special interests spend freely to influence elections, but it's harder to tip a hundred thousand votes than to buy a hundred politicians.

When the far right says the 17th Amendment harmed "the states," they mean it harmed state governments. But the state governments are not "the state"; they are simply another institutional player in our complex federal scheme.  The "state," properly considered, is the people of the state. Who is the best judge of the people's interests -- the state legislative majority or the people themselves? 

Properly viewed, governments do not have "rights." A right is a prerogative that an individual can exercise exactly as he wishes. When you exercise your right to free speech, you can say silly things, or smart ones, or you can just keep your mouth shut. You aren't accountable to anyone for the decision.

How can a state government have "rights" in this sense?  Should state legislators have the "right" not to approve a budget because they don't feel like it -- or, for that matter, not to elect a Senator because it's just not convenient this year? State governments, like the federal government, have powers, and they derive their just powers from the consent of the governed.  Appropriate state powers are actually protected by the Constitution, and by decisions of the Supreme Court. The federal government can offer incentives to state governments, but it cannot reach down and tell a state legislature what to do. Congress does not send representatives to vote in state legislatures; state governments should have no corresponding right to control Congress.

The popular clamor against the 17th Amendment is worth studying.  It shows that much of the "constitutionalism" being peddled to the people is highly selective, and much of the history that supports it, like Will's fatuous yearning for the "Great Triumvirate," is a pseudo-patriotic fable.

The real reason the Scalias, Millers, and Wills of this world favor repeal is simply this: a legislatively appointed Senate could be relied on to block progressive legislation. Left to themselves, those idiot people might have another "burst of progressivism." Right-wing objections to senatorial election (like so much right-wing "constitutionalism") are a disguised way of saying they want the Constitution to ensure their side never loses a vote.

To hell with that.

Image: Brendan McDermid / Reuters

Garrett Epps's Full Constitutional Myth Series:

• Myth #1: The Right Is 'Originalist,' Everyone Else Is 'Idiotic'
  
• Myth #2: The 'Purpose' of the Constitution Is to Limit Congress
  
• Myth #3: The 'Unitary Executive' is a Dictator in War and Peace
  
• Myth #4: The Constitution Doesn't Separate Church and State
• Myth #5: Corporations have the Same Free-Speech Rights as Individuals
• Myth #6: The Second Amendment Allows Citizens to Threaten Government
• Myth #7: The 10th Amendment Protects 'States' Rights'
• Myth #8: The 14th Amendment Doesn't Exist
  

Garrett Epps is a contributing writer at The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.