The Conservative Case Against the 17th Amendment, Weighed Honestly

Every so often a conservative gets up at a dinner, a convention or a radio studio and says the thing that makes the room go quiet: we should repeal the 17th Amendment. Stop letting the voters pick their senators, the speaker says, and give the job back to the state legislatures. The reaction is predictable. Half the room nods slowly. The other half looks at the speaker the way you would look at a man who proposed abolishing the Fourth of July because the parade is too loud.

I want to do something rare in politics, which is to treat the idea seriously and then tell you where I come out. The case against the 17th Amendment is not crazy. It is built on a real reading of what the founders designed and a real worry about what happened to the states afterward. But it also asks the American people to give up a vote they have held for more than a century, and that is not a promise any party can keep. Both things are true, and a good argument has to hold both.

What the Constitution said before 1913

Start with the text. Article I, Section 3, as written in 1787, said that the Senate "shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years." The House was to be elected by the people. The Senate was to be chosen by the state legislatures. That was deliberate. The framers had built a federal government with two kinds of representation: the House spoke for the people, and the Senate spoke for the states as states.

The Federalist Papers explain the logic. In Federalist 62 and 63, Madison describes the Senate as a steadier body, with longer terms and a different base, meant to check the passions of the more numerous House. Selection by state legislatures gave states a direct seat at the federal table. A senator who wanted a second term had to keep the legislature that chose him happy, and that legislature was in turn watching what Washington did to its state. State lawmakers, in effect, had a lever over federal policy that reached into the Senate chamber itself.

Why the old system broke down

The system had real flaws, and the people who changed it were not fools. Three problems stand out.

1. Deadlock. To win a Senate seat, a candidate had to carry both houses of the state legislature, and if the two houses could not agree, the seat sat empty. Delaware is the famous case. Around the turn of the twentieth century its legislature deadlocked repeatedly and left a Senate seat unfilled for years. A state with no senator has no voice in the chamber that is supposed to protect it.
2. Corruption. Legislatures are small groups, and small groups can be bought. Allegations of bribery in legislative elections of senators were common enough to be a national scandal. In 1912 the Senate voted that the 1909 election of William Lorimer of Illinois was invalid after a fight over alleged bribery in the Illinois legislature. That case did a great deal to turn opinion toward reform.
3. Legislative elections turned into Senate elections. When a legislature had to choose a senator, the state's own business sometimes got swallowed. Voters were electing legislators on the strength of whom they would send to Washington rather than on the questions of schools and roads that legislators actually decide.

Then came the workarounds. Oregon, around the first decade of the 1900s, used its initiative and primary system to let voters effectively choose their senators, with candidates for the legislature promising to vote for the people's pick. Other states copied it. By the time Congress acted, a large number of states had already adopted some version of popular choice, and the formal rule had become a fiction in many places.

The amendment

Congress proposed the 17th Amendment in 1912, and it was ratified in 1913 when the necessary three-fourths of the states had approved it. The new text says the Senate "shall be composed of two Senators from each State, elected by the people thereof, for six years." Senators got the same terms and the same count. The one real change was the voter.

The amendment contains a second paragraph that gets less attention and matters for today's argument. When a seat becomes vacant, the governor issues a writ of election to fill it, but the legislature of a state may empower the governor to make a temporary appointment until the people fill the vacancy by election as the legislature directs. In other words, the amendment itself leaves the state legislature with a role.

The conservative case, stated at its strongest

Here is the best version of the argument, in numbered form.

1. The founders designed the Senate to represent states. The text said so, and the Federalist said why. Equal representation for each state, regardless of size, was the price of the Union. It makes sense only if senators answer to states.
2. The 17th Amendment destroyed that link. Today a senator answers to a statewide electorate of voters, donors and national party networks. The state legislature has no leverage. A senator can vote for a federal mandate that burdens every state budget, and the legislature that must pay the bill has no recourse.
3. The federal government grew while the states shrank. Defenders of repeal point out that the great expansion of federal power in the twentieth century came after 1913: the income tax was ratified the same year, in the 16th Amendment, followed by the New Deal, and by programs that attach conditions and mandates to state budgets. They argue that senators accountable to legislatures would have blocked more of it. The timing is suggestive. Whether it proves cause is a separate question.
4. Federalism matters for liberty. Divided government protects individuals, because power spread across fifty states and a central government is power that is harder to abuse. If the Senate is just a second House with longer terms, one layer of that protection is gone.

I will give that argument its due. Premise one is true as a matter of history. Premise two is largely true as a matter of structure. Premises three and four are arguments of degree and judgment. And they connect to real worries that conservatives have about unfunded mandates, conditional grants and federal agencies directing state officers. The fight over strings on state budgets, which I discuss in NFIB v. Sebelius Lost the Mandate Fight but Won a Limit on Federal Strings, is a modern version of the same worry.

The reply, stated at its strongest

Now the other side, and I am not going to strawman it.

1. Voters hold a right they will not surrender. The popular election of senators is the most direct form of the consent of the governed. A proposal to take it away is, in plain terms, a proposal to tell voters they cannot choose their own senator anymore. No national party has won on that platform, and none will.
2. The old system was corrupt and gridlocked. The record before 1913 is not a golden age. Deadlocks left seats empty, and bribery scandals were real. Repealing the amendment would invite them back.
3. State legislatures are no purer than the voters. A legislature that picks a senator does so through party caucuses and leadership deals, and national money and national parties would simply move to state legislative races. The selection would still be driven by national politics, but with less transparency.
4. Popular election did not cause big government. The growth of federal power came from war, depression, the commerce power and the spending power, and it took the Court's blessing to happen. States have also been willing partners, taking federal money for roads, schools and health programs. A state legislature is not a firewall if it wants the check.

Point four is the one I take most seriously. If legislatures were the great defenders of state authority, you would expect to see them refusing federal money. They do not. Governors and legislators of both parties line up for grants every year. That tells me the real problem is not who picks the senator. The problem is the incentives around federal dollars.

Where I come out

I am a conservative who respects the founders' design, and I admit it is a fine design. I also think a political movement should be honest about what it can and cannot do. The path to repeal is a constitutional amendment, which is the subject of Article V Explained, and the Amendment That Took More Than 200 Years. Do the arithmetic. Congress would need two-thirds of each chamber: 67 of 100 senators, which is two-thirds of 100 rounded up, and 290 of 435 House members, since two-thirds of 435 is 290. Then 38 of the 50 states would have to ratify, since three-fourths of 50 is 37.5, which rounds up to 38. Those 67 senators would be voting to take away the votes of the people who elected them. I cannot find the road.

And I have a harder question for my own side. If you cannot persuade a majority of Americans that they should give up a right they already hold, you should ask whether your argument is really a political argument at all. Maybe it is a philosophical one: a statement about what the Senate was supposed to be. That has value. But a movement that spends its energy on an amendment it cannot pass is a movement that is not spending that energy on things it can win.

Three tests any repeal argument has to pass

Before I leave the argument, let me offer a way to judge it, because the same tests work on any proposal to rebuild the machinery of government.

First, does it fix the problem it names? The problem is that states lost their voice in Washington. Suppose legislatures picked senators tomorrow. Would those senators vote against grants that bring money home? Ask yourself how many state officials turn down a highway check. If the answer is "very few," then the cause of the problem is not the method of election, and changing the method will not cure it.

Second, does it survive the loss of its own best case? Madison's whole theory, which I covered in Madison Built a Government Where Ambition Fights Ambition, and It Works, is that ambition must be made to counteract ambition. Under the original Senate, the ambition of state lawmakers was set against the ambition of federal officeholders. That is a clever design. But the same theory says the voters are also a check, and the Constitution leaves the people one of the two parties to the bargain. A repeal that removes the voter's check to strengthen the legislature's is trading one safeguard for another, not adding a safeguard.

Third, who gets to decide? A conservative should be wary of any argument that begins "the people should not be trusted with this." We trust voters with the presidency, the House, governors and state legislatures themselves. The people who elect the state legislature that would pick the senator are the same people who now pick the senator. The difference is that they would be one step removed, and they would have to guess how their legislator would vote on a Senate seat months or years later. Many conservatives would hesitate to give any institution that much unchecked room.

There is also the question of how to change a founding document. The same people who say the Constitution means what it meant when it was written cannot rest easily on an argument that reads like "the Constitution would work better if the 17th Amendment were not in it." The amendment is in it. It was ratified the way the document says amendments are ratified. That is not a living-constitution trick; it is the text. If you want to undo it, you have to win under Article V, the way the people who wrote it won. For a discussion of the opposite temptation, see The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It.

What states can do inside the existing text

Here is the practical part, and it is where I think the good ideas are.

1. Use the vacancy clause. The 17th Amendment allows a legislature to empower the governor to make temporary appointments. Whether a state fills vacancies by appointment or by special election is a choice that the state legislature makes, and it is a real choice. You can find your own state's rule on your legislature's website.
2. Use Article V's state route. The Constitution allows two-thirds of the state legislatures to call for a convention to propose amendments. States have used it as a pressure tool for decades, and the possibility keeps Congress's attention. I explained the process, including how rarely the route has been used, in the Article V post linked above.
3. Press your senators on mandates. Legislators can pass resolutions, hold hearings and send formal letters. Resolutions do not bind a senator, but they tell the senator who is watching and put positions on the record.
4. Take back the state's own business. Some of what the repeal case wants, a firmer state voice in Washington, can come from legislatures building coalitions, writing model legislation and funding legal challenges. A strong state is its own lobby.
5. Support state-level reforms that restore clarity. Clean state elections, transparent budgets and honest accounting of federal money make the legislature a better partner and a better critic.

None of these is as exciting as repeal. All of them are available now.

The bottom line

• Know what the text says. Article I, Section 3 originally gave the choice to state legislatures, and the 17th Amendment, ratified in 1913, gave it to the voters. Read both on the Constitution's text pages.
• Respect the argument, but count the votes. The federalism case against the amendment is serious. The arithmetic of repeal, 67 senators, 290 House members and 38 states, is nearly impossible, and an honest conservative says so.
• Spend your energy where states have power. Push your legislature on vacancy rules, on how it handles federal grants and on resolutions that put your state's position on the record.
• Do not trade the vote for a theory. The voters of your state elect your senators today. If you want a Senate that listens to states, work to elect senators who will, and hold them to it.