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George Will: Repeal The 17th Amendment

by @ 1:13 pm on February 22, 2009. Filed under History, Legal, Politics, U.S. Constitution

In a column today regarding Senator Russ Feingold’s proposal to amend the Constitution to prohibit Governors from replacing Senators, George Will makes this provocative point:

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. In 1913, progressives, believing that more, and more direct, democracy is always wonderful, got the 17th Amendment ratified. It stipulates popular election of senators, under which system Wisconsin has elected, among others, Joe McCarthy, as well as Feingold.


Feingold says that mandating election of replacement senators is necessary to make the Senate as “responsive to the people as possible.” Well. The House, directly elected and with two-year terms, was designed for responsiveness. The Senate, indirectly elected and with six-year terms, was to be more deliberative than responsive.

Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 — the progressive (in two senses) reduction of the states to administrative extensions of the federal government.

Severing senators from state legislatures, which could monitor and even instruct them, made them more susceptible to influence by nationally organized interest groups based in Washington. Many of those groups, who preferred one-stop shopping in Washington to currying favors in all the state capitals, campaigned for the 17th Amendment. So did urban political machines, which were then organizing an uninformed electorate swollen by immigrants. Alliances between such interests and senators led to a lengthening of the senators’ tenures.

The Framers gave the three political components of the federal government (the House, Senate and presidency) different electors (the people, the state legislatures and the electoral college as originally intended) to reinforce the principle of separation of powers, by which government is checked and balanced.

Essentially, Will argues that the 17th Amendment should be repealed and that we should return to a system where Senators are selected by state legislators.

This isn’t a new argument among conservative thinkers, Bruce Bartlett made the case over at NRO nearly five years ago and Glenn Reynolds did the same back in 2005.

As I’ve noted before, it’s a provocative argument, but I think there’s something missing:

My take on the subject is this — from a procedural point of view the 17th Amendment is certainly one of the factors that has made the expansion of Federal power, and the erosion of Federalism, more easy to accomplish. Returning to direct election of Senators *might* have a positive impact, but that will only happen if the Senators elected have a proper understanding of their role under the Constitution.

And if the state legislators appointing them have that same understanding.

Given the political climate in America today, having Senators who are beholden to the whims and wishes of state legislators is unlikely to produce a better breed in the Upper House than having Senators who are beholden to the whims and wishes of voters.

In some sense, repealing the 17th Amendment involves turning back the clock in more ways than one. We can return to the procedural methods that the Framers first put in place, but that doesn’t mean that the philosophy that will guide the Senate will change in any significant respect.

4 Responses to “George Will: Repeal The 17th Amendment”

  1. I think it’s a better system by having the state legislators do it, but still, not perfect. It’s really hard to say what the best answers is.

  2. Bryan Pick says:

    It’s not so much their understanding that’s at issue. The purpose of many of the checks and balances was to have people in power answer to those who were jealous of their own power. Repealing the Seventeenth wouldn’t cure all ills, but it would help.

    For example, I don’t have to tell you that the federal gov’t has extended its power over state and local matters by using its superior funding power to provide goodies, and attaching strings to that money.

    If we posit that state legislators want to arrogate more power to themselves, then they will resist those strings. US Senators, realizing that their appointment to the Senate (and all the attendant benefits) requires pleasing the state legislators, will avoid attaching those strings. They don’t need to understand anything except who’s buttering their bread.

    Let’s say that state legislators still like the idea of getting federal money without having to levy their own taxes. Well, if the Senate tries to appropriate no-strings-attached money for the states, naturally the House and President will resist. They don’t want to levy taxes and receive no controlling benefit in return.
    A smaller number might be ideologically committed to using the superior federal power of taxation to fund these goodies, but not having strings attached to federal money would dull the incentive.

  3. Mike Wing says:

    Mr. Will was beyond underhanded when he asserted that progressivism to extend the vote directly lead to the election of Joe McCarty….no, Mr. Will in fact it was big oil money from Texas that warped the political process in Wisconsin that lead to the election of McCarthy. Besides repeal of the 17th amendment perhaps Mr. Will will also advocate for comprehensive campaign funding reform.

  4. Progressivism led to direct election of Senators, which led to the election of Joe McCarthy.

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