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17th Amendment

6 min read

Part of The Constitution and the courts.

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Every episode (3)

Who argued it

Randall Holcombe · Todd Zywicki · Larry Klayman

Federalism · Progressive Era · Public Choice Theory · Democracy · State Sovereignty · Constitutional Law · Obamacare

Background

The amendment and its origin

Bob Zadek dates the 17th Amendment to 1913 and describes it as changing how senators are elected: the Constitution originally provided that senators were elected by the state legislatures, not by the people Sarah Stillman on Minors on the Sex-Offender List (2016). He pairs it with the 16th Amendment, the income tax, which he says was unconstitutional and required an amendment to permit it. In his account the founders feared democracy, and because the Senate was to be the more deliberative body and 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 Sarah Stillman on Minors on the Sex-Offender List (2016).

Zadek attributes the change to the populism of the Theodore Roosevelt administration and to a few unfortunate scandals involving the buying of Senate seats; in a later episode he calls it a minor scandal in which some senator obtained election by a state house through bribery or other nefarious means, which reached the press Randall G. Holcombe on Liberty in Peril (2019). On the 2022 episode he puts the ratification date at 1913 again and says the amendment changed the indirect election of senators, elected at that point by state houses, to direct election by voters Progressive Conservatism with F.H. Buckley (2022).

The federalism argument

Zadek’s central claim is that once senators were elected directly, 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 that he says were once independent co-equal branches now exist to carry out federal policy Sarah Stillman on Minors on the Sex-Offender List (2016). He adds that states receive so much money from Washington that they must carry out Washington’s bidding. In the same episode he proposes that a majority of states—26 or 27—be permitted to nullify any federal law, and notes that Thomas Jefferson and James Madison in 1798 supported a proposition where federal law could be nullified by the states Sarah Stillman on Minors on the Sex-Offender List (2016).

Randall Holcombe, a guest on the show, supplies a mechanical version of the argument: before the amendment the House represented the interests of the people and the Senate the interests of the state governments, so any law required the approval of both; with direct election senators represent the people too, which lowers the bar and means legislation no longer has to meet with the approval of the representatives of the states Randall G. Holcombe on Liberty in Peril (2019). He offers the Affordable Care Act as a concrete example, saying that if the Senate represented the interests of the state governments, Obamacare would not have been able to shift some of the costs of Medicaid expansion to the states. Zadek says he would have picked that as the very same example, and adds that there would never be even one unfunded mandate, because the states, through the Senate, would not enact the legislation Randall G. Holcombe on Liberty in Peril (2019). He quotes Chief Justice Brandeis’s observation about states as laboratories of democracy, saying that without the 17th Amendment states become far less those laboratories of innovation.

Democratic instincts and disagreement

F.H. Buckley complicates the picture. He argues that the initiative and referendum movement originated in the West and that the direct election of senators was a Western initiative, supported by Westerners whose small-d democratic instincts also produced initiative and referendum laws Progressive Conservatism with F.H. Buckley (2022). He says initiative and referendum laws have worked pretty well but that he would not make the same claim with respect to the 17th Amendment, asking for a measure of charity to old progressives who did not realize quite how it would work itself out. He also says he is not one of those people who think the 17th Amendment made a heck of a change, pointing to the Lincoln-Douglas debates of 1858: people were not voting for the senator but for a slate of state representatives that would support either Douglas or Lincoln, so it already was democratic in that sense Progressive Conservatism with F.H. Buckley (2022). He characterizes the progressive impulse generally as the sense that the American people could be trusted to get it right and politicians could not, and notes that the amendment was supported by the same people who supported initiatives and referendum.

Zadek, for his part, states that by his own standards he would say the 17th Amendment was probably one of the more damaging amendments to the Constitution, and presses Buckley on whether he had called it a good idea because it worked Progressive Conservatism with F.H. Buckley (2022). Buckley’s answer is that he had not said the amendment worked.

Across episodes

The topic is touched in episodes on minors on the sex-offender list, the administrative state, Liberty in Peril, progressive conservatism and Trumpism after Trump Sarah Stillman on Minors on the Sex-Offender List (2016) Randall G. Holcombe on Liberty in Peril (2019) Randall G. Holcombe on Liberty in Peril (2019) Progressive Conservatism with F.H. Buckley (2022) Trumpism After Trump (2022). The treatment shows one development: the sweeping federalism argument remains Zadek’s, while Buckley in the later episodes supplies a revisionist account of the amendment as a Western progressive measure whose effects he considers minor, a view the earlier episodes do not contain.

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