October 17, 2018 by Anders Ingemarson
Administrative note: The Federalist published my last article under the title “How ‘Democratic Socialism’ Wreaked Havoc on My Native Sweden” and it almost went viral. Check it out.
In the wake of the Kavanaugh confirmation, the Senate has unsurprisingly come under attack for being undemocratic. The Washington Post’s Philip Bump writes that “Senators representing less than half the U.S. are about to confirm a nominee opposed by most Americans”. Ken Dilanian of NBC, tweeting Bump’s article, added “It may not happen in our lifetimes, but the idea that North Dakota and New York get the same representation in the Senate has to change.”
Mr. Delanian is correct about “It may not happen in our lifetimes” as the Senate’s composition according to Article V of the U.S. Constitution is subject to extra stringent rules of amendment: “no state, without its Consent, shall be deprived of its equal Suffrage in the Senate.” With a two-thirds vote in the House and the Senate, Congress could propose to amend this provision just as any other. But ratifying the amendment would require unanimous approval by the states, as opposed to the three-fourths needed for all other amendments. Since no state will give up their “equal Suffrage,” the Senate’s composition is not about to change anytime soon.
But Mr. Delanian is wrong about “the idea that North Dakota and New York get the same representation in the Senate has to change.” As The Federalist Papers #62 explains “…the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.”
Furthermore, the Constitution prescribes for senators to be elected by the respective state legislatures “…by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”
In other words, the election of senators by the respective states’ legislatures provided a check on federal powers, addressing the fears of the original 13 states that the federal government would become too powerful.
Add to this the longer and staggered terms (6 years, with one third of senators being elected every 2 years), the higher age requirements (30 years), and the more stringent citizenship requirements (9 years), and it becomes clear that the framers intended for the Senate to be a legislative counter balance to the House of Representatives with its election by popular vote, shorter terms (2 years), lower age requirements (25 years) and less stringent citizenship requirements (7 years).
By comparing the American legislative system with past failed systems of direct “democratic” representation (Athens, Carthage, Sparta, Rome, Crete), the framers made clear that another intent with creating the Senate was to protect against the tyranny of the majority, that is, against democracy; the framers on purpose made the Senate undemocratic to provide a check on the more populist House of Representatives.
The Constitution’s legislative checks and balances shifted with the ratification of the 17th Amendment in 1913, which established the popular election of United States Senators by the people of the states.
Before the 17th Amendment, the Senate “…was part of a formal bicameralism, with the members of the Senate and House responsible to completely distinct constituencies; this helped defeat the problem of the federal government being subject to ‘special interests’”.
Critics of the original system claimed that senatorial elections were “bought and sold”, changing hands for favors and sums of money rather than because of the competence of the candidate: “Between 1857 and 1900, the Senate investigated three elections over corruption. […] But analysts believe this concern was largely unfounded; there was a ‘dearth of hard information’ on the subject.” “In more than a century of legislative elections of U.S. senators, only ten cases were contested for allegations of impropriety.”
Electoral deadlocks was another issue: “Because state legislatures were charged with deciding whom to appoint as senators, the system relied on their ability to agree. Some states could not, and thus delayed sending representatives to Congress; in a few cases, the system broke down to the point where states completely lacked representation in the Senate.”
But deadlocks were the exception rather than the norm: “Most legislatures that did [deadlock] in the 19th century were the newly admitted western states, which suffered from ‘inexperienced legislatures and weak party discipline…as western legislatures gained experience, deadlocks became less frequent.’ While Utah suffered from deadlocks in 1897 and 1899, they became ‘a good teaching experience,’ and Utah never again failed to elect senators.”
No, the real driver behind the 17th Amendment was not the supposed shortcomings of the U.S. Constitution, but an explicit desire to make the American legislature more populist: “…there was a need to ‘Awaken, in the senators…a more acute sense of responsibility to the people’, which it was felt they lacked; election through state legislatures was seen as an anachronism that was out of step with the wishes of the American people, and one that had led to the Senate becoming ‘a sort of aristocratic body – too far removed from the people, beyond their reach, and with no special interest in their welfare’”.
The original wording of the U.S. Constitution had some gaps. It did not, for instance, anticipate actions by the states to introduce preferential primaries of U.S. Senators to give the people a voice. Nor did it foresee states requesting state legislators to pledge to abide by the results of such preferential primaries when electing U.S. senators, even if the winner was from a different party. Taken together, these two measures effectively made the election of U.S. senators subject to popular vote. Variations of these initiatives had already been implemented in a dozen or so states prior to the ratification of the 17th Amendment.
But despite its shortcomings, the Constitution’s checks on federal legislative powers by making the election of U.S. Senators exempt from direct popular vote had served the country well during its first 120 years; the size of federal government outlays as a share of GDP stayed below 5% in peace time until the outbreak of WWI.
The 17th Amendment has contributed significantly to the populist and progressive initiated expansion of the federal government the past 100 years. For example, it is unlikely that The New Deal, Social Security, and Medicare would have been legislated into existence as easily, if at all, without U.S. Senators being increasingly sensitive to the constituencies that now elected them. Nor would the regulatory state have grown as excessively. As a result, measure by measure we have inched towards the state of governance that the framers explicitly wanted to protect us from—democracy, or the tyranny of the majority.
Occasionally, calls are made for repealing the 17th Amendment. Should such an effort gain traction, the repeal should also address the shortcomings of the U.S. Constitution’s original wording to prevent states from circumventing the intent of indirect election of U.S. Senators by the state legislatures.
Unfortunately, the political, cultural, and moral climate makes this unlikely in the foreseeable future. Until such time, we must content ourselves with exorcising the thoughts from those who complain that our form of government is undemocratic: hold up a copy of the U.S. Constitution and confidently and passionately explain “that’s how it’s supposed to be.” And remind them that, as Progressives and other collectivists have demonstrated every time they’ve been in a position of power, the hidden objective behind calls for “more power to the people” is more power to the advocates of more power to the people.