Repeal the 17th Amendment
By Randall Holcombe • Wednesday February 6, 2013 10:31 AM PDT • 15 Comments
The 17th Amendment is in its centennial year, having been ratified in 1913. The Amendment mandates the direct election of senators. Prior to its passage, Article I, Section 3 of the Constitution specified, “The Senate of the United States shall be composed of two senators from each state chosen by the Legislature thereof...” The 17th Amendment replaces this language, stating, “The Senate of the United States shall be composed of two senators from each state, elected by the people thereof...” In hindsight, the Amendment is a part of the Progressive agenda that has led to the growth of the federal government, and has been a significant factor in the transfer of power to the federal government from the states. It should be repealed.
For most of the nation’s history, until the passage of the 17th Amendment, senators were chosen by their state legislatures, which meant that the Senate represented the interests of the state governments. There is a solid rationale for this in a federal system of government. Legislation must be approved by both the House and the Senate, which meant, prior to the 17th Amendment, that legislation had to be approved by the representatives of the people, in the House, and the representatives of the state governments, in the Senate. This was a more substantial barrier to the passage of legislation than after the 17th Amendment, when both the House and the Senate represent the same constituencies.
By making it easier for Congress to pass legislation, the 17th Amendment increased the power of the federal government, which has been one factor (albeit, among many) that has led to the substantial growth of the federal government in the century since the Amendment was ratified.
The 17th Amendment has also taken power away from the states by removing representatives of the states from the Senate and replacing them by representatives who are popularly elected. This has been a significant factor in turning what originally was a federation of state governments into a national system, where the federal government sits firmly on top of the states.
Consider Obamacare, for example, which imposes substantial costs on state governments. If the Senate still represented the interests of state governments, it probably would not have passed — at least, not in its current form. Consider legislation that withholds federal funds from states unless they comply with federal guidelines. The federal government threatened to withhold highway money from states unless they enacted a 55 mph speed limit in 1973. All states did, and that federal mandate was not repealed until 1995. Similarly, the federal government threatened to withhold highway money from states that did not raise their drinking age to 21. That passed in 1984 and remains in effect. If the Senate represented the state legislatures, it is unlikely that the federal government would be able to pass laws that constrained states, or imposed costs on them, as the federal government now does.
The 17th Amendment has facilitated the growth of the federal government, and has shifted power from the states to the federal government. We should repeal the 17th Amendment, as a step toward reversing these trends.
Tags: American History, Budget and Tax Policy, Constitution, Elections, History, Law, Liberty, Nanny State, Politics, Progressivism, Public Choice 
Within the original Constitution there were many checks and balances against the growth and concentration of power in the realm of the central(Federal)government. This was done to appease the Anti-Federalist States Rights followers of Thomas Jefferson by the pro central government Alexander Hamilton Federalists in order to get those factions signed on to the creation of a new Constitution to replace the Articles of Confederation. Within that original Constitution,that set up a Republican form of diversified governments,were checks and balances against the growth of the Central government. Not only the states appointing Senators but things like no direct taxation,the use of gold and silver coin,a guaranteed republican form of government with no direct democracy,juries to judge the law as well as the facts,The rights of the States to nullify Federal Law,the right of citizens to be armed against their own government plus a myriad of other rights as laid out in the Bill of Rights. In order to subvert the original Constitution and to establish a large centralized government the original Constitution had to be so changed and or amended as to allow,brick by brick,the destruction of the bulwarks that not only protected the states from an overbearing Federal government put also the individual citizens from tyranny. So,that over time,we find the 16th Amendment that supposedly did away with the denial of direct taxation,the 17th Amendment which neutered much of State power,the Federal Reserve Act which gave us paper money and inflation,the New Deal which forced people to be numbered and cataloged,the Great Society that gave us Socialized Medicine, Jury trials where the judge instructs the jury,under penalty,that they are not to judge the law only the facts thus leading to corrupt courts and directed juries. And of course the latest assaults on whats left of our Constitutional Rights the so called “Patriot” Act,that destroys the 4th and 5th Amendments plus the war on “assault weapons” that wishes to disarm law abiding American citizens. So after decades of pulling out the foundation of checks and balances against the growth of the central government we have come down to the point where we have a leviathan monster running amok in our nation where a small group of powerful men control economically,politically and socially the lives of millions.
libertarian jerry | Feb 6, 2013 | Reply
Federalism is dead. State governments are so weak that an ability to appoint senators will not slow the federal government’s accelerating drive towards absolute power.
Nibbling our way toward a libertarian federal government will not work. It will take either a revolution (unlikely) or the collapse of government. Even then, an alternate type of government could win out over libertarianism.
MingoV | Feb 6, 2013 | Reply
Mr. Holcombe, good ideas. I totally agree.
However, though I hope I’m wrong, I just don’t see the federal government agreeing to any amendments to the Constitution to “remedy” this. They will fight tooth and nail to maintain the status quo.
Why should they concede anything? Stepping back like that would be a major threat to their agenda to build one world government.
On the contrary, I look for them to tighten their grip on power on all fronts, even if that means economic collapse and revolt. After all, they have their bunkers and warehouses full of food. They can just wait it out, can’t they?
But loosening their grip on power so that the state can get some of that power back? Forget it! I don’t see that happening unless the economy forces the states into nullification and/or secession via peaceful non-cooperation which the feds can do nothing about.
Martin Faries | Feb 6, 2013 | Reply
It is not a matter of repealing the 17th Amendment, because you cannot repeal and an Amendment that is not legal or ratified. In 1913, the 17th Amendment was not ratified by the required 33 states at that time. The Federal Government declared it ratified and did the same with the 16th amendment giving them the ability to tax our income. Then they turned our treasury over to a select banking industry which are all unconstitutional. Is some good information on the 17th amendment http://devvy.net/pdf/17th/doc1.pdf on page 92 starting with the last paragraph continuing on it gives clear reason why this is not a legal amendment. Our Constitution requires two-thirds of both houses to approve that means every member must say yes, no or abstain (96 Senators and 435 Representatives) and that means 72 senators and 326 Representatives must have said “yes” before being sent to the states for approval and ratification. However according to (http://en.wikipedia.org/wiki/Seventeenth_Amendment_to_the_United_States_Constitution#cite_note-38) the vote in both house went as follows: it passed in the Senate by a vote of 64 to 24, with 4 not voting, and on May 13, 1912, passed in the House by a vote of 238 to 39, with 110 not voting. It is incorrect in saying that it passed because per Article V of the Constitution it requires two-thirds of both houses of the United States Congress. I do not see that because the Senate had 4 Senators not even present and the House of Representative had 48 Representative not even present which is required per the Constitution. Therefore, the 17th amendment cannot be repealed becuase it was never legally ratified. It is up to the States to challenge this in front of the Supreme Court. Then it must do the same for the 16th amendment that did the same thing it is not legal.
dorothea | Feb 7, 2013 | Reply
Not “could win out over libertarianism”–you should have said “would win out over libertarianism”. History shows that the failure of a republic or representative government is always followed by a strong-man dictatorship.
Tom Lyle | Feb 7, 2013 | Reply
I couldn’t agree more with this piece. How many energy producing states have senators flirting with ruinous policies to “tackle” the “crisis” of “climate change?” (And incidentally, how does one “tackle” a phantom )
Aaron Williford | Feb 8, 2013 | Reply
The result of the 17th Amendment is that the people not politicians elect Senators, an extension of democracy like others accomplished by the central government: abolition of slavery, no poll tax to vote, black citizenship and voting rights, female suffrage, civil rights etc. Pay attention to “WE The People”.
Darrell | Feb 9, 2013 | Reply
Darrell.........The United states is NOT a Democracy. It is a Constitutional Republic with a written Constitution protecting the Rights of individual citizens. “We the People” does not mean mob rule where 51% of the population can vote away the rights of the other 49% of the population. Today,however,the concept of a Republic has been superseded by the concept of a mobocracy democracy voting for more benefits from the Treasury. A mobocracy also votes away the property rights of the minority. This,along with endless wars,is why America is today bankrupt. Many steps were taken over the last 100 years or so that allowed America to slip into mob rule. And one of the main reasons was the enactment of the 17th Amendment. It should be repealed.
libertarian jerry | Feb 9, 2013 | Reply
Jerry, you are correct, the United States is a Constitutional Republic. As such, it maintains the rights of the few against the tyranny of the majority. This is one way of looking at it. What it has the potential to support as well, is the division of our country as one entity. Madison, Hamilton, Adams, Washington and many others saw the flaws that were inherent in the Articles of Confederation. Individual states were not able to make collective agreements and as such lacked collective power. For the United States to remain a world power, there must be a central strong government that exerts the will of the majority while listening to the voices of the minority.
Bill | Feb 10, 2013 | Reply
I know the Fed Gov’t must be reined in and the only way I believe this will happen is to have a Constitutional Convention. Repealing the right amendments, just a few, will give the states and the people the powers back that were stolen by “statist elite” to insure they stay in power. I believe that the Fed Gov’t should only be in charge of the National Defense and with the job they have done on most everything else I’m not sure that letting them keep National Defense is a good idea.
Tom Rose | Feb 12, 2013 | Reply
The facts of the case are this, the 17th amendment has stripped the states rights of representation wthin the federal government and replaced them with political party representation.
The Senators of today vote in political party cabals instead of representing the will of the state legislature & governor. This is the biggest problem with the country today.
I take it one step further, the U.S. Senators should be non-partisan and should not be allowed to vote or participate in partisan cabals, they should make each vote based on the will of the legislature they represent regardless of party influence.
Laurance Brungardt | Feb 24, 2013 | Reply
The balance of power has change with the 17th amendment, it needs repealed. I believe Joseph Story explains it best. That having the State legislature appoint the Senate, “The interest, passions and prejudices of a district are thus checked by the influence of a whole state. The like interests, passions and prejudices of a state, or of a majority of the states, are met and controlled by the voice of the people of the nation”. We are seeing now more then ever how certain districts in each state over rule the voices of other districts and how mob rule has taken over. It’s amazing how the founders of the Constitution seen this.
cliff | Mar 11, 2013 | Reply