The 17th Amendment, adopted in 1913, changed how United States senators are elected, replacing election by state legislatures with direct election by the people of a state. Across these episodes, Bob Zadek and his guests treat it as one of two structural amendments adopted in the same year — the other being the 16th Amendment, which gave Congress the power to levy an income tax — that together altered the relationship between voters, the states, and the federal government. Zadek calls the two amendments “sea-change” and “game-changer” events; his guests variously extend, qualify, or dispute the consequences he draws from them.
The founders’ design and the case against the amendment
Zadek’s account of the original design is that the Constitution provided for senators to be elected by state legislatures rather than by the people, and that this was deliberate. The founders, he says, “feared democracy” — by which he means they feared “the impulsive voting of the mob,” people who react to the events of the moment rather than taking a long view. Because the Senate was intended to be the more deliberative body, with six-year terms, and because the states were felt to need direct representation in Washington, the Senate was the legislative body representing the states, not the people of those states. That system, in his telling, “worked pretty gosh-darn well for 130 or 140 years” Sarah Stillman on Minors on the Sex-Offender List (2016).
The amendment’s adoption, on this account, followed a wave of populism associated with the Teddy Roosevelt administration and a few scandals involving the buying of Senate seats. Zadek describes the public reaction as a wave of populism — comparing it to Trump-era populism — that produced an amendment providing for direct election of senators by the people of a state rather than indirect election through state legislatures. He states the amendment was adopted in 1913, “during the beginning of the second Progressive Era,” and describes the precipitating events as “a minor scandal where some senator bribed or through other nefarious means got elected by a state house to be senator,” which reached the press, leading to the conclusion, “Let’s put the power in the people” [[episodes/john_marini_on__unmasking_the_administrative_state|John Marini on Unmasking the Administrative State (2019)]].
Consequences for the states
Zadek’s central claim is that once the amendment passed, states “were doomed to lose their co-equal status with Washington in matters of governance” and were “relegated to being what they are today, which is mere agencies of the federal government.” States, he says, “exist today not as independent co-equal branches of government, but rather they exist to carry out federal policy, not to carry out state policy.” He concedes they retain “some minor administrative latitude,” comparing it to the latitude given to the EPA under a statute, but argues that because governors “get so much money from Washington, they must carry out Washington’s bidding” Sarah Stillman on Minors on the Sex-Offender List (2016).
The same formulation recurs in the Holcombe episodes: as a result of the amendment, “states changed over time from independent co-equal political bodies to merely agencies of Washington,” such that “the state of California became, if you will, the California Department of the federal government” [[episodes/john_marini_on__unmasking_the_administrative_state|John Marini on Unmasking the Administrative State (2019)]]. Before the amendment, Zadek argues, the states had representation in Washington as a political body — “The Senate was their house” — and could protect their interest against federal intrusion into the police power, which was historically reserved for the states [[episodes/john_marini_on__unmasking_the_administrative_state|John Marini on Unmasking the Administrative State (2019)]].
Holcombe: the amendment lowered the bar for legislation
Randall Holcombe’s contribution is a mechanism rather than a lament. Before the amendment, he argues, the House of Representatives represented the interests of the people and the Senate represented the interests of the state governments, so any law had to be approved by both the representatives of the people and the representatives of the states. With direct election, senators are representatives of the people too, which “lowers the bar”: legislation no longer has to meet with the approval of the representatives of the states [[episodes/john_marini_on__unmasking_the_administrative_state|John Marini on Unmasking the Administrative State (2019)]].
Holcombe offers the Affordable Care Act as a concrete example. When it passed, he says, one of the things it did was impose higher costs on the states, because the states had to expand their Medicaid programs. Had the Senate represented the interests of the state governments, he argues, it is “pretty likely” that Obamacare would not have been able to shift some of those costs to the states. Zadek agrees and says he would have picked the same example, adding that there would “never be even one unfunded mandate” if the states, through the Senate, would not enact the legislation — and that without the amendment, states become far less the “laboratories of democracy” that Chief Justice Brandeis observed at the beginning of the 20th century [[episodes/john_marini_on__unmasking_the_administrative_state|John Marini on Unmasking the Administrative State (2019)]].
Zadek’s nullification proposal
In the Stillman episode, Zadek moves from diagnosis to proposal. To diminish the power of Washington and of the Supreme Court, he suggests permitting a majority of states to nullify any federal law: if 27 or 26 states voted to nullify a federal law, that law would be repealed. He defers the detail of whether the majority would be counted by population or by number of states. He describes nullification as “a grand old concept,” noting that Thomas Jefferson and James Madison in 1798 supported a proposition where federal law could be nullified by the states — though he acknowledges their concept was that a state was free not to follow federal law, while “the concept is the same” Sarah Stillman on Minors on the Sex-Offender List (2016).
Buckley: a qualified defense and a Western origin
F.H. Buckley, appearing in the Progressive Conservatism episode, resists Zadek’s framing on two grounds. First, he corrects what he takes to be a misattribution: he says he did not claim the 17th Amendment worked. What he said, he explains, is that if you want to understand the small-d democratic instincts of the progressives — expressed in initiative and referendum laws and the 17th Amendment — you should recognize that they came from Western progressives. He argues that initiative and referendum laws have worked pretty well, but would not make the same claim with respect to the 17th Amendment, asking instead for “a measure of charity to those old progressives who didn’t realize quite how the 17th Amendment would work itself out” Progressive Conservatism with F.H. Buckley (2022).
Second, Buckley disputes the magnitude of the change. He says he is not one of those people who think the amendment “made a heck of a change,” because even before it, when states appointed senators, who you voted for as a state representative was a function of who you thought they would support for the Senate. He cites the Lincoln-Douglas debates of 1858: people were not voting for the senator but for state representatives, yet they were voting for a slate that would support either Douglas or Lincoln. So, he concludes, “it already was democratic in that sense” Progressive Conservatism with F.H. Buckley (2022).
Buckley’s broader point is that what was specifically progressive was the sense that more democracy was needed, that people should be represented better, that you could trust the American people to get it right and could not trust politicians to get it right. That, he says, is why the 17th Amendment was supported by the same people who supported initiatives and referendum — and they were Westerners. He places this in a lineage running through Teddy Roosevelt and Dwight Eisenhower Progressive Conservatism with F.H. Buckley (2022).
The 16th Amendment pairing
Zadek consistently pairs the 17th Amendment with the 16th. In the Stillman episode he calls them “the two worst amendments to the Constitution,” noting they occurred in the same year: the 16th gave us the income tax, which he says was unconstitutional and required an amendment to permit it, and the 17th changed how senators are elected Sarah Stillman on Minors on the Sex-Offender List (2016). In the IRS episode he states his broader premise that “almost all of the amendments, the structural amendments to the Constitution, such as the income tax, such as the 17th Amendment, which provided for the direct election of senators, contrary to the founders’ wishes” made the Constitution worse — while excluding the Bill of Rights, the Civil War Amendments, and women’s suffrage from that judgment What the IRS’s Hiring Spree Means for You (2023). He notes that the income tax was expressly forbidden by the founders, that a temporary Civil War income tax was promptly repealed, and that the first permitted income tax in 1913 required a constitutional amendment What the IRS’s Hiring Spree Means for You (2023).
Across episodes: the same argument, extended and contested
The topic recurs across four episodes spanning 2016 to 2023, and the treatment develops in a specific way. The 2016 Stillman episode contains Zadek’s fullest statement of the critique and his nullification proposal. The 2019 Holcombe episodes add a mechanism — the lowering of the legislative bar — and a concrete example in the Affordable Care Act’s Medicaid cost shift, advanced by Holcombe and endorsed by Zadek. The 2022 Buckley episodes introduce the only sustained dissent in the excerpts: Buckley denies having claimed the amendment worked, minimizes its practical effect by reference to the Lincoln-Douglas precedent, and relocates its origin to Western progressives rather than treating it as an elite imposition. The 2023 IRS episode restates the pairing with the 16th Amendment as part of a general thesis about structural amendments. What changes across the run is not Zadek’s position, which is stable, but the presence of a guest who qualifies it.
What the sources do not cover
The excerpts do not state the amendment’s ratification date beyond Zadek’s “1913, I believe,” nor its text, nor the article and clause of the Constitution it replaced. They do not name any senator involved in the seat-buying scandals, any state legislature whose election was affected, or any case interpreting the amendment. Buckley’s reference to the Lincoln-Douglas debates is given as an illustration of pre-amendment practice, not as a holding or a case name. The excerpts also break off mid-sentence in several places — Zadek’s 2016 monologue ends mid-clause on Jefferson and Madison, and two episodes end with his name and no following text — so nothing after those points is available.