Liberty Amendments: Restoring the Senate

This is the second in a series discussing the proposed amendments to the U.S. Constitution in Mark Levin’s The Liberty Amendments: Restoring the American Republic, which debuted at number one on the New York Times bestseller list.

The purpose of this post is not to debate the state conventions themselves, but to focus on the individual amendments. His book, of course, also goes into greater detail about each amendment—the history, the rationalization, and the importance of each.

The second liberty amendment Levin has proposed aims to restore the Senate.

SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be chosen by their state legislatures as prescribed by Article I.

SECTION 2: This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.

SECTION 3: When vacancies occur in the representation of any State in the Senate for more than ninety days the governor of the State shall appoint an individual to fill the vacancy for the remainder of the term.

SECTION 4: A Senator may be removed from office by a two-thirds vote of the state legislature.

According to Levin, the 17th Amendment was “sold as a cleansing and transformative expansion of popular democracy,” but it is “actually an object lesson in the malignancy of the Progressive mind-set and its destructive impact on the way we practice self-government in a twenty-first-century, post-constitutional nation.”

The 17th Amendment, which was ratified in 1913, says,

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The 17th Amendment changed the way most senators had been chosen for 124 years. Before its ratification, senators were selected by the state legislatures, two from each state.

“Considered by itself, the Seventeenth Amendment seemed reasonable enough,” Levin writes, “which is why it was ratified in near-record time. If democracy in limited doses is good, so went the Progressive cant at the time, more democracy could only be proportionally better.”

Proponents of the amendment thought that if electing congressmen to the House by popular vote worked so well, why not choose senators by direct popular elections too?

According to Levin, the fact that the framers believed the original method to be “critical to the proper functioning of the federal government” didn’t seem to matter.

The framers understood that “the will of the people—subject to majoritarian and factional swings and lurches—should be balanced with dispassionate, considered judgment through a stable and diffused governing construct.”

Levin explains that the state legislatures’ role in selecting senators was a firewall against centralized power and that there was “never any serious consideration of the direct popular election of both houses of Congress.”

The main reason the 17th Amendment was eventually ratified, even though it had been rejected several times, was because it 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.”

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. . . . 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.

Now, instead of working with elected state officials who sent them to Washington to represent state interests, senators spend time with “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.”

State interests are no longer the top priority for most senators because they’re not beholden to state legislatures. This was painfully obvious in the passage of Obamacare, in which 27 states sued to overturn the bill, but the law was still passed in the senate by 60 votes. “In Virginia,” Levin points out, “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.”

This Liberty Amendment would repeal the 17th 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.

One of the main arguments in favor of the 17th Amendment is that it supposedly empowers people against the wealthy and “politicians choosing politicians.” But as Levin writes, “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.”

What do you think? Do you like this proposed amendment? Do you think it will help dismantle the centralized power of our government, or do you think it is fraught with too many problems of its own? 

Levin’s 11 Proposed Liberty Amendments:

  1. Establish Congressional Term Limits

  2. Repeal the 17th Amendment and Restore the Senate
  3. Establish Term Limits for Supreme Court Justices
  4. Limit Federal Spending
  5.  Limit Federal Taxing
  6. Limit the Federal Bureaucracy
  7. Promote Free Enterprise
  8. Protect Private Property
  9. Grant States Authority to Directly Amend the Constitution
  10. Grant States Authority to Check Congress
  11. Protect the Vote

(While these are Levin’s suggestions, he has stated that others could certainly be proposed.)

  1. ctlaw
    Mendel

    ctlaw: If anything, I would make it a Gubernatorial appointment. More than any other office, people have a tendency to come to their senses when voting for Governor.

    Furthermore, the party affiliation of the governor is less likely to be influenced by gerrymandering than that of state legislators.

    The House of Representatives is already disproportionately Republican thanks to gerrymandering, and in a way the Senate is as well (as a byproduct of the political way in which mid-western states were incorporated).  Since Republicans have done a better job of using gerrymandering to their favor in state legislatures, a straight repeal of the 17th Amendment would put another thumb on the D.C. scale.

    At some point, the effects of gerrymandering will become counterproductive to everyone…

    Republicans have done a terrible job of gerrymandering.  The fact is that any non-gerrymandered apportionment would yield a greater Republican Congressional and state legislature presence is clear. Due to urban concentration of Democrats, Republicans, in non-gerrymandered situations would have strong presence, if not control of many state legislatures even in hard blue states and utter dominance of the red states.

  2. 9thDistrictNeighbor

    It worked for the first 126 years. Without representation at the Federal level, the states have just sidled up to the feed trough for federal highway dollars or any other crumb thrown their way.

  3. billy

    I think it is an excellent idea, but it is such a hard sell to the voting public.

  4. ChemOne

    I think it is the best suggestion so far to save our nation. I thank Mark Levin for all the hard work and research he has done for us, the American people.  I thank you too for explaining it.

  5. ctlaw

    If anything, I would make it a Gubernatorial appointment. More than any other office, people have a tendency to come to their senses when voting for Governor.

  6. Nick Stuart
    ctlaw: If anything, I would make it a Gubernatorial appointment. More than any other office, people have a tendency to come to their senses when voting for Governor. · 10 minutes ago

    Three counter examples:  Illinois, California, and New York.

    On the subject of repealing the 17th amendment, I’m in favor. Although it won’t be long before the state legislatures are sending in cronies selected in smoke-free back rooms (where alas, the jug of whiskey has been replaced with diet sodas) and it will be just as corrupt, simply a different flavor of corrupt. And at least there will be enough people clamoring to get their turn at the trough that people like DiFi and McCain will get retired instead of having to be carried out feet first like Robert Byrd and Strom Thurmond.

  7. D.C. McAllister
    C
    Nick Stuart

    ctlaw: If anything, I would make it a Gubernatorial appointment. More than any other office, people have a tendency to come to their senses when voting for Governor. · 10 minutes ago

    Although it won’t be long before the state legislatures are sending in cronies selected in smoke-free back rooms (where alas, the jug of whiskey has been replaced with diet sodas) and it will be just as corrupt, simply a different flavor of corrupt. And at least there will be enough people clamoring to get their turn at the trough that people like DiFi and McCain will get retired instead of having to be carried out feet first like Robert Byrd and Strom Thurmond. · 0 minutes ago

    I prefer the diversity of shady characters from the states vying for power with a few noble-minded people to push them back (and hopefully there’d be more than a few) to the monolithic power of the federal bureaucracy and the executive branch.

  8. D.C. McAllister
    C
    ChemOne: I think it is the best suggestion so far to save our nation. I thank Mark Levin for all the hard work and research he has done for us, the American people.  I thank you too for explaining it. · 28 minutes ago

    Thank you, ChemOne. And welcome to Ricochet (I see you’re new)!

  9. Knotwise the Poet

    I definitely lean towards supporting it, though if it came to an actual vote I’d want to read and study pro/cons further.  

    Sadly, I doubt this one will ever come to a vote.  The simplistic “more direct democracy=good” idea is very popular and it would be very difficult to change the majority of the American public’s mind on this one.

  10. J.Maestro

    It’ll never fly — the direct elections are too entrenched. But the problem it creates is real. The Senate needs a state-based counterweight — a veto of any federal legislation that cannot muster a plurality of YEAS from the states that bother to weigh in.

    Vest that power with the governor or with the state legislature. If it’s too complicated to take their votes post-enactment, then simply let governors vote (or abstain) in any Senate roll call vote.

    The states need to be represented. My fear is no matter what amendments we ratify the feds will (continue to) buy off the state reps and collude in their usurpation of the powers reserved to the people.

  11. ctlaw
    Nick Stuart

    ctlaw: If anything, I would make it a Gubernatorial appointment. More than any other office, people have a tendency to come to their senses when voting for Governor. · 10 minutes ago

    Three counter examples:  Illinois, California, and New York.

    Illinois, California, NY, and MA, and CT, and NJ have elected Republican governors in recent memory. How many of those have elected Republican senators or elected Republican dominated legislatures. I rest my case. 

  12. RedRules

    I have long been opposed to the 17th. The original setup was far superior that what we have now. For those who warm against the rich.connected corrupting the process…. how is that any different that what we have now?! At least in the original system, the people of the state could fix things by swapping out members of their local legislature. As always, keep Power as close to the hands of the People as possible. 

  13. Macduff

    While it is useful to examine each of the proposed Liberty Amendments individually, it is important to keep in mind that none of these is a single, silver bullet solution to 100+ years of Progressive erosion. Nor do I believe that is Levin’s intent. Rather, he has put together a set of proposed amendments — many drawn from the writings of the framers themselves and their contemporary Anti-Federalist writers — that act as an interlocking and mutually supportive structure to shore up, strengthen, and reaffirm the original intent of our founders. I would strongly suggest that those who comment here read the entire set and discuss the individual components on their merits in that broader context. 

    So, if you haven’t already, read this fascinating and well-researched book. Let’s discuss its merits as a road map for reestablishing our constitutional republic. Then let’s discuss how we move from ideas and talk, to action and results.

  14. J.Maestro

    Seems to me the biggest obstacle addressing these problems is education-based — not only are people convinced Incorrectly) that we are a democracy, they are morally certain that a democracy is superior to a constitutional republic.

    Few Americans have read the Constitution and even fewer understand that the 10thAmendment spells out the most basic of our checks and balances: a three-way division of power among the feds, the states and the people.

    Do the people know they are vested with power? Do they know the states have been co-opted by the feds? Using the people’s money? Do the people think a mere elections is sufficient to forfeit those rights so vested?

    Alas, an amendment will do little good until/unless the rule of law is restored. The people should have demanded that already. Have they abdicated?

  15. D.C. McAllister
    C
    Laurence Kirsh: While it is useful toexamine each of the proposed Liberty Amendments individually, it isimportantto keep in mind that none of these is a single, silver bullet solution to 100+ years of Progressive erosion.Nor do I believe that is Levin’s intent. Rather,hehasputtogetherasetofproposed amendments — many drawnfromthewritingsof the framersthemselvesandtheir contemporary Anti-Federalistwriters—thatactasan interlockingand mutuallysupportivestructure toshore up, strengthen,andreaffirmthe original intent of our founders. I would strongly suggest that those who comment here read the entireset and discuss the individual components on theirmerits in that broader context. 

    I don’t think it’s necessary to read the whole book to discuss the individual amendments (not that each is a silver bullet, but it helps to grasp the whole by looking at the parts). This can be done step by step. Even Mark Levin said the amendments themselves are not the “package.” He even admits some of them might not be right (or completely fleshed out), and he has said explicitly, “If you can think of any amendments to add, then go for it. This is just a launching off point.”

    The purpose of the series is to look at each one. I think this is legitimate and helpful.

  16. Demaratus

    We should be under no illusion that one set of corrupt interests would be anything but swapped out for another were the 17th amendment to be repealed:  “Out of the crooked timber of humanity no straight thing was made.”  (Also, see federalist 51 regarding men and angels.) 

    However, the genius of our Republic as originally architected was that the interests in each state’s capital would be often at odds with those at the central Capital.  For example, see Federalist 10′s discussion regarding Factions.

    Right now one faction must only seize control of the governing class in Washington to wield the tyrannical power; if the Senate were again chosen by the States’ legislatures then a faction would also have to seize control of a majority of the statehouses as well to have a similar level of power.

    What we need is a check against the faction of socialists and useful idiots that have seized control of the media, the bureaucracy, and a large proportion of our elected officials in Washington.  Given the current composition of the Union, a Senate chosen by the states would prevent any more revolutionary changes implemented from the top down.

    A good start, at least.

  17. D.C. McAllister
    C

    Demaratus– well said. A big part of the puzzle, if you will, is the media. Someone needs to write a book about how to fix that. The fourth branch of government is more than broken. It’s dead.

  18. Mark Monaghan

    The 17th amendment broke the back of Federalism, ushered in the era of highly coercive federalism and is anethama to individual liberties.  

  19. RobGen
    The Senate needs a state-based counterweight — a veto of any federal legislation that cannot muster a plurality of YEAS from the states that bother to weigh in.

    I love this idea as it would almost definitely begin a transfer of power back to the state level. It would eventually mean that you could choose to live in a state that was more liberal or conservative. I feel like conservatives would be open to this idea while hard core liberals would think we were slipping through their enlightened clutches. How you could sell this to the public, I have no idea. There could also be negative long term economic repercussions down the road as well, but I’m really not prepared to think that one through.

    Probably it would be easier to give state governors (or some variation on that idea) collective power to veto contentious legislation, although even this may be too much for our federal government.

  20. Macduff
    D.C. McAllister

    I don’t think it’s necessary to read the whole book to discuss the individual amendments… The purpose of the series is to look at each one. I think this is legitimate and helpful. · 

    I’m not questioning the legitimacy and helpfulness of your approach: examining each of Levin’s proposed amendments in turn. I agree that’s useful — and I look forward to the pleasure of reading all of your future columns. 

    However, as I read the comments here I have noticed how many of them turn on the effectiveness of the particular standalone amendment, removed from all others. 

    In a nutshell, this book is about fixing certain systemic issues will help get us back to constitutional republicanism; pointing out a mechanism for doing that through a built-in Constitutional amendment process; and providing starter-set of amendments (for our consideration, conversation, and debate) to fix what’s broken. Looking at each is useful, as any of them might be incomplete, etc. But thinking of them as a mutually reinforcing whole puts them in context. So, all I’m saying is, reading the book to get that context will raise the level of discussion here.

Want to comment on stories like these? Become a member today!

You'll have access to:

  • All Ricochet articles, posts and podcasts.
  • The conversation amongst our members.
  • The opportunity share your Ricochet experiences.

Join Today!

Already a Member? Sign In