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SECTION 1: The Seventeenth Amendment is hereby repealed.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.)