Repeal the 17th Amendment?

One popular idea making the rounds among some conservatives and Tea Partiers is a call for the repeal of the 17th Amendment. From the LA Times:

A common theme among those in the “tea party” movement is that ordinary citizens ought to participate more in the business of government. Yet some tea party activists — and likeminded politicians and commentators — are espousing a return to the election of U.S. senators by state legislatures rather than the people. That would require repealing the 17th Amendment, which was ratified in 1913.

The “Repeal the 17th” campaign is rooted in a nostalgia for an era in which state governments exercised as much influence as the federal government — or more.

There’s a lot of truth to the argument that the enactment of the 17th Amendment undermined federalism. State legislatures have a greater institutional incentive to protect federalism than do the people of a state. The people of a state may want to expand federal program spending in order to get their share of tax revenues, even at the expense of greater national power over issues reserved to the states. Although they are also elected by the people, state legislators have more of an incentive to protect the original distribution of powers between the national and state governments.

Here is what James Madison had to say about the matter (during congressional discussion of the Bill of Rights in 1789):

[T]he State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty

The Seventeenth Amendment weakened the states’ ability to resist the expansion of federal powers. The problem is that there is no point to trying to fix this problem — an effort to amend the Constitution will be fruitless. It requires two-thirds of the Congress and three-quarters of the states. The tea-partiers would be well advised to devote their efforts to achieving significant limits on the federal government — such as limiting federal spending, cutting taxes, and reversing Obamacare — that don’t demand an amendment to the Constitution. They will have a limited political window to apply their political capital; constitutional amendments will only waste it.

  1. Tommy De Seno
    C

    Isn’t one of the downfalls of this idea the gerrymandering of state election districts? If you live in a state where that shenanigans is a problem, you might really feel far removed from the process that elects your US Senator.

  2. Nick Stuart

    Interesting idea. If I understand correctly the 17th was passed because of rank corruption in the state legislatures (shocking, I know).

    But really, we need to focus. Direct election of senators is maybe a tertiary factor in our having been brought to our current state of affairs, and I’d think there are a lot more things needing addressed before we start thinking about spending time and energy on repealing the 17th amendment.

  3. G.A. Dean

    I rather doubt that this is the issue that will galvanize America in the coming years. Direct election of Senators is not a particularly pressing problem and, as you imply, the larger issue is the erosion of Federalism and the nationalization of what should be local concerns. There are more tangible and pressing issues to focus on.

  4. Pilgrim

    We are more likely to be fighting to preserve the electorial college than to repeal the 17th Amendment

  5. TucsonSean

    Professor Yoo,

    I think we should simply bring a suit arguing that the 17th Amendment is either unconstitutional, or that it really says that there NO direct election of senators, or that the intent of the amendment was really to just apply to territories in the event they ever achieved statehood. Might get Kennedy on board with that ina 5-4.

    Who needs to follow the actual amendment process. That’s for sissies.

  6. David Limbaugh
    C
    John Yoo: One popular idea making the rounds among some conservatives and Tea Partiers is a call for the repeal of the 17th Amendment. From the LA Times:

    The problem is that there is no point to trying to fix this problem — an effort to amend the Constitution will be fruitless. … The tea-partiers would be well advised to devote their efforts to achieving significant limits on the federal government — such as limiting federal spending, cutting taxes, and reversing Obamacare — that don’t demand an amendment to the Constitution. They will have a limited political window to apply their political capital; ·

    This post is illuminating for John Yoo’s always on-the-money constitutional history lesson, but I want to focus on his bulls-eye advice in the section I quoted. Very pragmatic, realistic and smart. He’s exactly right about the window and about the necessity of maximizing use of it. It’s essentially the same reason in book interviews I’ve recommended against quixotic wastes of time/energy/capital in pursuing Obama for alleged impeachable offenses or other acts of corruption. We have to focus on rolling back his agenda — YESTERDAY. THAT’S WHAT IS MOST URGENT.

  7. Publius

    I remember talk like this after the Republicans won the 1994 elections. That time it was Republican leaders talking about eliminating entire cabinet agencies. While that’s a fine idea, it’s was completely unrealistic then as it is now. Repealing the 17th amendment is also a fine idea, but it will almost certainly never come to pass.

    One of the bigger mistakes that the Republicans can make this time around is assuming that their victory means that people like the party. They destroyed a considerable amount of good will the last time they ran the show and it’s going to take a long time to get it back.

    The first rule of holes is that when you are in one, stop digging. We’re in an extremely serious financial hole. The Republicans essentially need to call their first budget the “Let’s Stop Digging Act of 2011″ and challenge Obama to fight them on the issue. Will the Republicans have the will to confront Obama on spending issues? Will they adopt a pro-growth stance? That’s where they need to focus their energy.

  8. Peter Hintz
    TucsonSean: Professor Yoo,

    I think we should simply bring a suit arguing that the 17th Amendment is either unconstitutional, or that it really says that there NO direct election of senators, or that the intent of the amendment was really to just apply to territories in the event they ever achieved statehood. Might get Kennedy on board with that ina 5-4.

    Who needs to follow the actual amendment process. That’s for sissies. · Oct 22 at 10:19am

    Since the 17th Amendment is part of the constitution how can it be unconstitutional?

  9. David Limbaugh
    C

    BTW, I was just thinking further through this and want to clarify something, lest some may extrapolate incorrectly from my above-stated position agreeing with John Yoo. I am completely pragmatic insofar as wanting to focus on repealing Obama’s agenda and believing we should keep our eyes on the big balls, e.g., repealing Obamacare as opposed to worrying about birther issues or impeachment or constitutional amendments.

    But I would not extend this line of thinking to advocate piecemeal surgery over certain noxious provisions of Obamacare in lieu of complete repeal. Once you start working with Obama and get him to sign any bill repealing any minor or even major provision of Obamacare you essentially let the air out of the repeal balloon. We have to go all out for repeal and not let him off the hook by nibbling around the edges on his noxious, freedom destroying agenda items. This is the kind of tepid response Obama was surely counting on when he lied, cheated, stole, bribed etc. to cram through Obamacare against the will of the American people in the first place: “Just get it in place and it will remain in place.” NO NO NO!

  10. Publius
    Tommy De Seno: Isn’t one of the downfalls of this idea the gerrymandering of state election districts? If you live in a state where that shenanigans is a problem, you might really feel far removed from the process that elects your US Senator. · Oct 22 at 9:09am

    We’re already pretty far removed from the process that elects our Senators. The political class has worked very hard to keep themselves in power and that has included subverting the concept of free elections by things such as, but certainly not limited to, grotesquely corrupt gerrymandering and redistricting efforts, the regulation of political speech (Thanks, John McCain!), byzantine fundraising regulations and limitations that strongly favor incumbents, stringent ballot access rules, corrupt political machines that control the party nomination process, comically lax voter identification requirements and easily corrupted and exploited absentee ballot processes.

  11. Trace
    Pilgrim: We are more likely to be fighting to preserve the electorial college than to repeal the 17th Amendment · Oct 22 at 9:54am

    But I think that is exactly the point. The left has been incredibly effective at promoting ideas over a period of years that seem absurd at first and ultimately become mainstream. Why jump right to the compromise position? Socializing ideas like repeal of the 17th amendment introduce it into the collective consciousness and help reset the definition of “the middle.” In all these comments I see the pragmatic impulse to jump right to what’s practical. That fine, but the right has to do a much better job of playing the long game too, and that means continually bringing up and discussing ideas that seem quixotic today

  12. Frozen Chosen

    I have to respectfully disagree with Mr Yoo and those of you who feel that we shouldn’t expend time or energy repealing the 17th amendment. This amendment fundamentally changed the structure of our great Republic and I believe has been a contributing factor in many of the problems we face today. Mr Yoo correctly identifies how this noxious amendment undermines the principle of federalism which is the genius of our constitution.

    Unless we can restore the structure that the founders gave us everything else is just window dressing. The fight to repeal this amendment would be a wonderful opportunity to educate the people of this country about why federalism is important and why the founders made us a constitutional republic and not a mere democracy. If we don’t reinstill a knowledge of our constitution in the populace we cannot hope to turn this country around and will continue to remain susceptible to charismatic charlatans like Obama. We may succeed in beating back this current threat to our Republic only to have another, more severe threat crop up in the next generation.

    The time is now to repeal the 17th amendment and save our Republic!

  13. David Limbaugh
    C
    Frozen Chosen: I have to respectfully disagree with Mr Yoo and those of you who feel that we shouldn’t expend time or energy repealing the 17th amendment.

    I can’t speak for John Yoo, but I don’t think he would say that it wouldn’t be a worthwhile effort to repeal it, but just that there are so many more urgent matters at hand that will make that effort moot if we don’t attend to them. If we don’t begin to reverse Obama’s legislative agenda pretty soon we might not have the luxury to deal with working on restoring structural constitutional issues. Let the people move forward with repeal of the 17th and let the Congress go about its more urgent business. At least that’s my take on it; he may have a completely different take. But for myself, I do not want to discourage noble efforts like this; I just don’t want to put too many eggs in a long shot in the short run when we do have seriously, republic-threateningly urgent matters.

  14. Aaron Miller

    Well said, Trace.

    I agree, David, about refusing to compromise on repealing Obamacare. But that can’t happen until 2012 (and that assumes we will elect a Republican president and gain a supermajority in Congress). So, for now, I’d prefer that Republicans continue to talk about repealing Obamacare but focus on what they can do before then with their budgetary authority in the House. I’m not voting Republicans in to sit on their hands for two years.

    I don’t understand all the effects of the 17th Amendment well enough to have a firm opinion on it, but my inclination is to think the Founder knew what they were doing.

  15. Publius
    David Limbaugh

    I just don’t want to put too many eggs in a long shot in the short run when we do have seriously, republic-threateningly urgent matters.

    We already lost the republic and getting it back is going to take a lot of work. That said, I agree with David (which has to be a pretty safe place to find myself considering his intellectual horsepower). Going after provisions like the 17th amendment isn’t a sensible strategy. The urgent priorities are to stop the digging when it comes to spending and that includes working to repeal the Obama health care legislation.

    The Republicans should work on two major legislative efforts. The first would be a “Let’s Stop Digging” budget and the other would be to start on the repeal of the Obama health care legislation.

    The budget is something that they can win in the short term they don’t go wobbly. The repeal of the health care legislation will fail because Obama won’t go for it and they won’t have enough votes. The GOP should use it to gain seats and the White House and then repeal it.

  16. liberal jim

    If all we do is repeal O’s agenda we are left with the bloated government GB and his predecessors left us. If that’s what victory looks like I’d hate to see defeat. There are many things that can be accomplished without trying to amend the constitution. Undoing the strangle-hold public service unions have on the country might be a good place to start.

  17. David Limbaugh
    C
    liberal jim: If all we do is repeal O’s agenda we are left with the bloated government GB and his predecessors left us. If that’s what victory looks like I’d hate to see defeat. There are many things that can be accomplished without trying to amend the constitution. Undoing the strangle-hold public service unions have on the country might be a good place to start. · Oct 22 at 11:50am

    I agree. No one’s saying we have to stop with just rolling back O’s agenda. We have to have serious entitlement reform and radically reduce spending way below W levels. Also re Publius’s kind words that I have intellectual horsepower — I probably don’t have 3/4 of the horsepower of many of the smart posters on this site, but I’M STILL ALWAYS RIGHT, SO THEY SHOULD LISTEN TO ME. LOLOL. :-)

  18. Pilgrim
    Trace Urdan

    Pilgrim: We are more likely to be fighting to preserve the electorial college than to repeal the 17th Amendment · Oct 22 at 9:54am

    But I think that is exactly the point. The left has been incredibly effective at promoting ideas over a period of years that seem absurd at first and ultimately become mainstream. Why jump right to the compromise position? Socializing ideas like repeal of the 17th amendment introduce it into the collective consciousness and help reset the definition of “the middle.” In all these comments I see the pragmatic impulse to jump right to what’s practical. That fine, but the right has to do a much better job of playing the long game too, and that means continually bringing up and discussing ideas that seem quixotic today… · Oct 22 at 11:17am

    You are absolutely right about the long game but our conservative public intellectuals (That is not an oxymoron, damn it!) should carry that ball more than our parolee-legislators at this time.

  19. Paul A. Rahe
    C

    John may be right that repealing the 17th amendment is a non-starter. Its significance might be clear to us, but it would be hard to explain it to the general public.

    But, in his post, John neglected one possibility. There is a constitutional provision, to date never employed, empowering the states to bypass Congress entirely and call a convention to propose amendments. If there were a movement to repeal the 17th amendment, that would be the route to take.

  20. John Yoo
    C

    I agree that the direct election of Senators seriously altered the structure of our Republic and removed one of the fundamental checks on the growth of the national government. I think repealing the amendment would be a worthy effort, but I think this is an issue of priorities. Even if the Republicans take back the House and get a majority in the Senate, they will not have the supermajority needed to get a repealing constitutional amendment out of Congress. We could applaud symbolic efforts to get the amendment through, but it would consume political efforts that could be used better elsewhere. Republicans should focus on short-term achievements, it seems to me — balancing the budget, cutting spending, and lowering taxes at first, then working on repealing Obamacare and reducing over-regulation of the economy.

    My personal experience of this was as an aide in 1994 to Senator Orrin Hatch, whom I consider one of the great conservative leaders in the upper house. The new Republican majority made some significant achievements in reducing taxes and spending, ultimately producing a budget surplus and giving the economy a shot in the arm (by getting the government out of the way). But it also spent time on trying to get constitutional amendments on balancing the budget and flag-burning, while worthy, never got enacted and proved, I think, to be a distraction from areas that would have produced better political returns.

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