Repealing the XVIIth

Dateline: 28 February 2007

The XVIth, XVIIth, and XVIIIth amendments to the Constitution, passed between 1913 and 1919, greatly expanded the power of the federal government with respect to the states. The XVIIIth, prohibition, has been repealed. The others deserve separate examination and this column is dedicated to deconstructing the XVIIth.

At first glance, replacing the previous method of indirectly electing US senators with direct election by the people seems sound enough, and a thoroughly progressive move. A second glance tells a different story.

The founders framed a constitution that was carefully balanced between the states and the federal government. Only members of the House were to be directly elected by the people. Senators like the president would be indirectly elected. In legislative matters the House would speak for the interests of the people and Senate for the interests of the states.

This makes sense. The Constitution is one of enumerated powers, but just because Congress is empowered to act, it does not mean that it should. A high burden of proof is put on any law before it is enacted. Before Congress adopts a law it should be clear that it is both constitutional and appropriate. It is not enough for it to be popular. If a law is overwhelmingly popular it will be adopted by the states. But before it is adopted at federal level it needs to satisfy the needs of both the people as a whole and the several states. Such needs will not always be identical.

By providing in the Senate a duplication of the representation of the House, the XVIIth undermines this core constitutional principle.

Against this must be set the benefits of direct election. Surely it is more democratic? It would seem so, but a deeper look suggests not. The founders, rightly, put no property or income qualifications on the right to seek election to Congress. But the cost of contesting a Senate seat is tremendous, especially in large states such as New York. Perhaps that makes sense. A Senate candidate in New York has a large base of potential donors to call on. But small states are caught in the same web. Media markets do not follow state lines. To contest elections in Connecticut or New Hampshire candidates must advertise in New York and Boston respectively. The cost is out of all proportion to the size of the states.

Also, direct election of senators tips the balance of power in Congress from the House to the Senate. How could it be otherwise? Senators from New York, Texas, and California must garner millions of votes to be elected. Yet this disenfranchises their electors rather than empowering them. If the Senate is senior to the House then the power of small states is enhanced to the detriment of the large. Wyoming has a senator for every 250,000 people. New York one for every nine and half million and California one for every seventeen million. The House provides representation much fairer to the larger states. So, on its own terms, the XVIIth has failed. It has made the US less democratic, not more.

Better to revert to election by state legislatures. Common Sense would go further and abolish terms of office in the Senate. Let Senators serve as ambassadors of their state, subject to recall any time their state legislature chooses. That would truly empower the states.

Quentin Langley is editor of an academic at the University of Cardiff and is a columnist with Campaigns & Elections. This article was first published in the Common Sense series for Lake Champlain Weekly.

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