May 17, 2005


Repeal the Seventeenth Amendment (Thomas J. DiLorenzo, May 17, 2005, Lew Rockwell)

Every once in a blue moon someone in Congress (usually Congressman Ron Paul of Texas) proposes a law or resolution that would actually improve the prospects for human liberty and prosperity. It’s rare, but not nonexistent. One such case is Senate Joint Resolution 35, introduced into the U.S. Senate on April 28, 2004, which was recently brought to my attention by Laurence Vance.

S.J. Res. 35 reads: "Resolved . . . . The seventeenth article of amendment to the Constitution of the United States is hereby repealed." That’s Section 1. Section 2 reads that "The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years . . ."

This was the original design of the founding fathers; U.S. senators were not directly elected by the voting public until 1914. Thus, S.J. Res. 35 proposes a return to founding principles and is therefore a most revolutionary idea. A good overview of the history of the Seventeenth Amendment is Ralph A. Rossum’s book, Federalism, the Supreme Court, and the Seventeenth Amendment. Rossum correctly points out that the system of federalism or "divided sovereignty" that the founding fathers created with the Constitution was never intended to be enforced by the Supreme Court alone. Congress, the president, and most importantly, the citizens of the states, were also to have an equal say on constitutional matters.

The citizens of the states were to be represented by their state legislatures. As Roger Sherman wrote in a letter to John Adams: "The senators, being . . . dependent on [state legislatures] for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States."

Rossum also quotes Hamilton as saying that the election of senators by state legislatures would be an "absolute safeguard" against federal tyranny. George Mason believed that the appointment of senators by state legislatures would give the citizens of the states "some means of defending themselves against encroachments of the National Government."

Fisher Ames thought of U.S. senators as "ambassadors of the states," whereas Madison, in Federalist #62, wrote that "The appointment of senators by state legislatures gives to state governments such an agency in the formation of the federal government, as must secure the authority of the former." Moreover, said Madison, the mere "enumeration of [federal] powers" in the Constitution would never be sufficient to restrain the tyrannical proclivities of the central state, and were mere "parchment barriers" to tyranny. Structural arrangements, such as the appointment of senators by state legislatures, were necessary.

You'd certainly see less of the unfunded mandates states are always complaining about.

Posted by Orrin Judd at May 17, 2005 8:40 AM

The problem is that today's careerist legislators, both state and federal, are perfectly happy pushing decision-making onto others. Thus Congress' penchant for pushing its powers into the regulatory agencies and the states' penchant for whining that Congress made them do something.

Posted by: David Cohen at May 17, 2005 9:09 AM


I refer to that as the Flip Wilson Theory of Governance, i.e. 'The Debbil Made Me Do It.'

As for repealing the 17th Amendment, why not just do away with the Senate entirely?

Posted by: bart at May 17, 2005 9:24 AM


That would exacerbate the problem not tend to perfect the structure.

Posted by: oj at May 17, 2005 9:31 AM

You and I can agree that the Senate as currently constituted serves no purpose. I tend to agree with HL Mencken that democracy is the system whereby the public gets what it wants and gets it good and hard. So, I wish to create more popular sovereignty rather than less. In this context, you will note my preference, inter alia, for I & R and for an elected judiciary with specified terms of service.

The Senate is an unrepresentative body. Sparsely populated States where the livestock and the people are indistinguishable like West Virginia and states like Texas have the same vote. In a post Civil War world, where the US went from an 'are' to an 'is', that makes little to no sense. So, why not just eliminate the thing entirely, saving billions of dollars? Congress certainly brings home the bacon as much as the Senate does and with a lot less disorganization and rampant egomania. For most of American history, the trains have run on time in the House but the Senate is and has always been a cesspool of tedious windbags of limited intellectual caliber and non-existent moral fiber. And today when an obnoxious rich guy can buy a Senate seat with ease, it is if anything at its historical nadir.

Posted by: bart at May 17, 2005 9:51 AM

No, it serves an excellent purpose, just less well than it was designed to. Revert to the design. It shouldn't be representative.

Posted by: oj at May 17, 2005 9:56 AM

If you see the notion of 'states' as little more than administrative units(French departements rather than German Lander), it is difficult to see what purpose the Senate serves. There is no real need for States as such in have a specific voice in national government, especially when so much of our lives such as commerce, banking, travel are interstate in scope and when so many Americans move to different states every year.

The 'advise and consent' function is farce. And in a busy world, we do not have time for self-important halfwits from Ohio and Delaware to hold things up so that they can get their 15 minutes of fame.

Posted by: bart at May 17, 2005 10:16 AM

To prevent large urban states from screwing up the country. The Senate--specifically the anti-New Deal Southern conservatives--is a major reason why we aren't in as bad a trouble as Europe.

Posted by: oj at May 17, 2005 10:20 AM

The suburbs rule Congress and will do so increasingly. The urban centers are a smaller and smaller part of the country as is rural America. Exurbia is growing though. States would not act as states but districts would work together across state lines.

The people's house will reflect this. The Senate preserves the privileges of obscure groups like wheat farmers and dairymen more than necessary.

Posted by: bart at May 17, 2005 10:33 AM

The people are the problem.

Posted by: oj at May 17, 2005 10:58 AM

The people are the people. That doesn't change. By definition they cannot be the problem, any more than the universe can be the problem.

Posted by: bart at May 17, 2005 11:27 AM


On the one hand you acknowledge the inherent problems of 'democracy' while advocating more of it. How do feel about the electoral college?

Posted by: Tom C., Stamford,Ct. at May 17, 2005 11:37 AM

Bart: dig it, the senate and the electoral college allow geography to vote; this keeps mobs of sophisticates from governing our nation; geography is the built-in check on people too-clever-by-half who want to enshrine their great new ideas by changing, well, everything every few years

Posted by: Palmcroft at May 17, 2005 11:40 AM


All forms of government have inherent problems, democracy probably has the fewest. Singapore is really well run, but what happens if one of the Lees gets replaced by Caligula?

I'm of two minds about the electoral college. First, I'd prefer a parliamentary system where the presidential election is merely the aggregate of 435 parliamentary elections. But given the unlikelihood of that ever occuring, I believe the EC gives us the best chance of forcing candidates on the national level to deal with local issues and regional matters. A Presidential election with just the popular vote determining things would be run bi-coastally, with candidates travelling from SMSA to SMSA ignoring fly-over country. The EC forces them to spend time figuring out how to carry Iowa or Ohio or New Mexico and that has value. Because the parliamentary election is about winning seats, the focus is similarly local during the campaign.

Posted by: bart at May 17, 2005 11:53 AM

The Universe imposes laws whether you want it to or not. You can stop the people.

Posted by: oj at May 17, 2005 12:04 PM


A constitutionally based, federal republic ain't a 'democracy'. A mob is rarely correct and it consists entirely of people.

Posted by: Tom C., Stamford,Ct. at May 17, 2005 12:05 PM

The Universe is a given. The people are also a given. Humanity is unchanged over thousands of years and will remain unchanged for thousands more.


Since we can change the rules as needed, the issue of popular sovereignty is clear. Thus the distinction between republic and democracy in our system is one of form rather than substance.

Posted by: bart at May 17, 2005 12:25 PM


Yes, the question is how much power you give them knowing that. The less you can get it away with, while still maintaining liberty, the better.

Posted by: oj at May 17, 2005 12:51 PM

Bart. I am with OJ on this one. The way to go is to strengthen federalism. A revised Senate would be good. So would a court system that did not try to invalidate state laws that do not meet the "global test."

Posted by: Robert Schwartz at May 17, 2005 12:51 PM


Precisely why I argue for an elected judiciary subject to specific terms of service.

Federalism has its good points but it gets in the way of a lot of stuff like banking, insurance, commerce, land use and regional planning, environmental issues, energy production, and the like. Some areas just require national legislation and the FFs didn't always know precisely what those would be. How could they, given the technology of the day?

Posted by: bart at May 17, 2005 12:59 PM

"The Emperor has dissolved the Senate...permanently."
- Grand Moff Tarkin

Posted by: Tom at May 17, 2005 1:49 PM


You've lost me. The founders anticipated enough. Modern scholorship regarding the constitution is, on the left, nothing but an intense rationalization for the rejection of American first principles. The 20th century and the 'progressive' era are fisished. Politically speaking the era produced nothing of lasting value other than the sad history of passing intellectual fads.

Posted by: Tom C., Stamford,Ct. at May 17, 2005 1:49 PM

Bart: The Constitution already gives the federal government power over nearly everything on your list except "regional planning and land use" which should not be a federal responsibility in any event. It is called the Commerce Clause. Yes, in some areas, the federal government lets the state act (insurance) or gives them a limited role (environmental) but if the feds want to, they can do what they want.

A unicameral legislature is not as good idea as a bicameral one. A bicameral one acts as a brake on bad ideas, imperfect as that beake may be. I think our system is far superior to the current UK or Canadian system that has a nearly powerless upper chamber.

Posted by: Bob at May 17, 2005 3:07 PM

Or, to put it another way, getting in the way of stuff is the point.

Posted by: David Cohen at May 17, 2005 4:00 PM

It would be an improvement if state Legislatures elected U.S. Senators. For one thing, it should clear the way for state term limits to apply.

The states are still much more than "administrative units", and often force the Federal gov't to back down or change course.

A "mob" may consist of a group of people, but not all groups of people are "mobs". Mobs may usually be wrong, but it's been shown through study that large groups of people are usually right.

To think that 20th century America produced nothing of lasting value in the political arena is extremely obtuse.
We got universal suffrage, civil rights, and an end to "machines", to hit some highlights.
None of those is perfect, but as the Founding Fathers neither lived in nor bequeathed us Paradise, they're steps forward.

Posted by: Michael Herdegen at May 17, 2005 6:51 PM

Michael: There is no forward or backward. It's hard to imagine that we'll ever bring back race-based or sex-based voting restrictions, but once we trust the government on race there are some very good arguments for cutting back on universal suffrage. I think that you're very optimistic to think that we've gotten rid of machine politics.

Posted by: David Cohen at May 18, 2005 8:08 AM

David Cohen:

There are indeed good philosophical arguments against universal suffrage, but not so many good ideas about how to actually implement them.

I could be wrong about political machines. Would you be so kind as to point out three of them still working ?

Posted by: Michael Herdegen at May 18, 2005 8:17 AM


There are plenty of very commonsensical ideas.

Posted by: oj at May 18, 2005 8:46 AM

Michael: Off the top of my head: the Chicago machine, the St. Louis machine and the Commonwealth of Massachusetts.

Posted by: David Cohen at May 18, 2005 9:19 AM


No offense, but much of what you regard as "commonsense", the average American regards as "completely unacceptable". You might be able to get the voting age re-established as 21, but further than that, I doubt highly.

David Cohen:

Chicago I agree with, San Louis I dunno, Mass. I do not accept as a valid example.
Overwhelmingly favoring politicians of a certain stripe isn't a "machine".

Posted by: Michael Herdegen at May 18, 2005 9:52 AM


You think the white middle class would oppose disenfranchising welfare recipients?

Posted by: oj at May 18, 2005 10:55 AM

Machines are all about jobs for the boys. Check out how many Mass state employees are ex-politicos or related to politicos. When I was clerking in the State court system, the courthouse had perfectly stanard automatic elevators complete with elevator operators.

Posted by: David Cohen at May 18, 2005 11:19 AM


If so, then why haven't they ?

David Cohen:

I tend to think of political patronage as just the way that gov't does business, but perhaps you are right.

Posted by: Michael Herdegen at May 18, 2005 1:34 PM

No one's proposed it yet.

Posted by: oj at May 18, 2005 1:37 PM