The Liberty Amendments: Restoring the American Republic (6 page)

The organization of the Senate was the subject of Federalist Fisher Ames’s speech to the Massachusetts Ratification Convention. Ames, a highly regarded figure, said that the Senate, by its unique nature, exemplified the “sovereignty of the states,” while the House of Representatives was the dominion of the “individuals.” This meant that the Senate served as a “federal feature” and a guard against the national government eventually subsuming the states—a recurring complaint among delegates to the commonwealth’s ratification convention. Ames even warned that if members of the Senate were elected directly by the people it would make it much easier for the federal government to “consolidate” the state governments under its control. State governments, Ames said, spoke for “the wishes and feelings and local interests of the people.” They were “the safe guard and ornament
of the constitution, a shelter against the abuse of power and the natural avengers of our violated rights.” He characterized senators as “the ambassadors of the states.”
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At the Virginia Ratification Convention, in response to Patrick Henry’s concerns about an omnipotent federal government, Madison argued, in part, that “[t]he members to the national House of Representatives are to be chosen by the people at large, in proportion to the numbers in the respective districts. When we come to the Senate, its members are elected by the states in their equal and political capacity. But had the government been completely consolidated, the Senate would have been chosen by the people in their individual capacity, in the same manner as the members of the other house. Thus it is of a complicated nature; and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction. . . . ”
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The only real question raised during the state ratification conventions was unrelated to the structure of the Senate. Discussions emerged over whether state legislatures could instruct senators how to vote on any given issue. The idea was even raised later in the First Congress, when the House was debating the proposal that would become the First Amendment. A congressman from South Carolina asked why the amendment did not include language providing for the right of citizens to make binding instructions
to their representatives in Congress. Madison, a representative from Virginia and the lead author of the proposed amendments, said that it was redundant to do so; citizens inherently had the right to influence their representatives and state legislatures had the right to instruct their senators. It would also be impossible, as supporters of the right to instruct had wanted, to institute a penalty for senators who failed to follow explicit instructions, or for states not to be bound by federal legislation for which their edicts were ignored by their senators. This idea died when it was pointed out it would amount to a de facto veto by states of federal laws.
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Although there were various points of trepidation in every state ratification convention about some aspect of the Constitution’s design, which were aired fully and passionately, none of the amendments to the Constitution suggested by any of the state ratification conventions included the direct popular election of senators. There were unquestionably many people from all stations in life, from every corner of the new country, represented at the state ratification conventions. Many were fearful that the new federal government would seize state authority and centralize power. The state legislatures’ role in selecting senators was considered one of the most significant firewalls. There was never serious consideration of the direct popular election of both houses of Congress.

The first proposed constitutional amendment to change the way senators were chosen was introduced by Representative Henry R. Storrs, from New York, in 1826. It went nowhere. Similar amendments were introduced in 1829 and 1855, neither of which was any more successful than the first attempt. In 1868, President Andrew Johnson sent to the Senate a proposed constitutional
amendment that included a provision for the popular election of senators as well as language to change the presidency to a single six-year term. That proposal died quickly.
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The proposal that eventually became the Seventeenth Amendment, providing for the direct popular election of senators, probably would not have become part of the Constitution had it been brought forward in other times. In fact, it failed when it was introduced several times over the decades before it was finally ratified. The idea benefited from the unique political and cultural atmosphere that consumed the nation during the late nineteenth and early twentieth centuries—a Progressive populism promoting simultaneously radical egalitarianism and centralized authoritarianism. Public sentiment grew amenable to changing the method of selecting senators. State legislatures responded to these pressures by letting the public vote, in some fashion, on who they wanted as their senators. For example, in some states the legislature would nominate candidates from each party. The state legislature would then take under advisement the public’s preference in choosing the senator—effectively letting the public “vote” in a “primary” election to select the finalists from whom the legislature would pick the senator. Thirty-one states offered some manner of popular voting on senators at one time or another before the Seventeenth Amendment was ratified.

Among the most persuasive arguments offered for changing the way senators were chosen was that state legislatures were occasionally in disarray over the selection of senators, unable or unwilling to find enough votes to elect a senator, which occurred during the nineteenth century. Thus, states were denied full representation in the Senate from time to time. For example, one of Delaware’s Senate seats was unoccupied from March 1899 to
March 1903. Moreover, the Delaware legislature failed to select any senators from 1901 to 1903. In 1897, in Oregon, one-third of the members of the legislature refused to take their oaths of office in order to prevent their opponents from electing the next senator. The legislature was “in session” for fifty-three days without conducting a single official act, including electing a senator.
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All told, from 1895 to 1905, state legislatures in California, Delaware, Montana, Oregon, Pennsylvania, Utah, and Washington State failed to elect senators for periods ranging from ten months to four years.
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Even so, vacancies for lengthy periods were rare.

The day after the Seventeenth Amendment became part of the Constitution, the balance of power that had existed between the states and the federal government since the Constitution’s ratification was dealt a critical blow. The long silence of the states had begun. The states no longer had a legislative venue, or any venue, to influence directly the course of the federal government. This contributed significantly to the dismantlement of the states’ traditional and exclusive areas of governing responsibility. As a result, today the federal government fills whatever areas of governance and even society it chooses. State sovereignty exists mostly at the will of the federal government. The federal government’s limited nature under the Constitution was transmuted into the kind of centralized power structure the Framers worked so diligently to thwart.

Yet this proposed amendment, perhaps more than the others, may be considered the most controversial and politically difficult to institute. After all, the direct popular election of senators was sold as, among other things, empowering the people against wealthy, corrupt, and connected special interests. Opponents of the Seventeenth Amendment will undoubtedly be accused of
being “antidemocracy” and favoring “politicians choosing politicians.” Of course, the Statist is the architect of the current post-constitutional environment in which governing masterminds attack relentlessly the individual’s independence and free will. The Statist may claim to defend “democracy” but in fact he abandons the electoral process when the outcomes do not advance his agenda. He then resorts to legal and policy evasions and contrivances, relying on government by clandestine lawmaking, judicial overreach, and administrative fiat, all of which destroy self-government.

Indeed, the state convention process is a response to an oppressive federal government, the potential of which was feared by the Framers. However, it will be opposed by the Statist, for he may pose as a democrat, but it is democratic tyranny that he favors. Moreover, the proposed amendment, along with the others, provides recourse against the kind of centralized and ubiquitous edifice the federal government has become. It is the state legislatures, acting together, that can buffer the individual from the relentless trespasses of the federal government and restore constitutional republicanism.

And what of the post–Seventeenth Amendment Senate? Rather than spending time conferring with the elected state officials who would have sent them to Washington, D.C., and representing primarily state interests in the Senate, these senators now spend more time with, and are more beholden to, Washington lobbyists, campaign funders, national political consultants, and national advocacy organizations. In fact, states are often viewed as little more than another constituency, one among hundreds, with interests that may or may not be relevant to or comport with a senator’s political and policy ambitions.

Furthermore, state sovereignty is not a top priority for most senators because the state legislatures hold no sway over them. Therefore, situations arise where senators vote for major federal legislation over the strenuous objections of their own states. For example, more than half of all states—twenty-seven states—joined federal litigation to overturn the so-called Patient Protection and Affordable care Act, aka Obamacare, yet the law was passed in the Senate by a large majority of sixty votes.
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In Virginia, both senators—Mark Warner and Jim Webb—voted for Obamacare, despite strong opposition from Virginia state officials. The state attorney general, Ken Cuccinelli, was among the first to bring a lawsuit.

Consequently, as a result of one election cycle in 2008, where the Democratic Party controlled all the elected parts of the federal government for a short two-year period, there was no counterweight or check on lawmaking, which a Senate whose members were elected by the state legislatures would have provided. Although in the very next election cycle, in 2010, the Republican Party won historic victories at all levels of government, including a huge victory in the House of Representatives, the Senate and president resisted all efforts to modify or repeal Obamacare.
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Its implementation proceeded at a feverish albeit chaotic pace, as it does today. Meanwhile, the people continue to oppose Obamacare, as they have from the outset.
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The Seventeenth Amendment serves not the public’s interest but the interests of the governing masterminds and their disciples. Its early proponents advanced it not because they championed “democracy” or the individual, but because they knew it would be
one of several important mechanisms for empowering the federal government and unraveling constitutional republicanism. And they have done so, they claim, with the consent of the citizen, for the citizen can cast a vote for his senator. Of course, the federal government’s utopian mission is undeterred by voting should the citizenry vote in opposition to it. The vote is easily and routinely frustrated by all the federal branches, as is self-government generally.

The proposed amendment repeals the Seventeenth Amendment, thereby reestablishing the Senate to the character intended originally by the Framers and set forth in the Constitution. As such, it returns Congress to a true bicameral institution; provides the states with direct input into federal lawmaking decisions in real time; decentralizes the influences on a senator from Washington, D.C., to the states and local communities; and encourages a more rational, reflective, and collaborative legislating process. In addition, the proposed amendment ensures that no Senate vacancy can continue beyond ninety days and that state legislatures have the authority to remove a senator for any reason.

SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.

SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.

SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.

SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.