Repeal 17th Amendment to Revive the 10th

Between 1913 and 1920, Progressives were feverishly rewriting the U.S. Constitution. Within a seven-year period, they enacted four Constitutional amendments – for the federal income tax, Prohibition, women’s suffrage and direct election of senators.

Before the 1914 elections, U.S. Senators were elected by the 48 state legislatures. That sounds bizarre to the modern ear after a century of direct election of U.S. Senators. But it was part of the genius of the Founding Fathers to give the states powerful political leverage in the law-making branch of the national government. It was one of the original checks and balances.

The reason all the states got two senators apiece, regardless of population, is that the U.S. Senate was originally intended to represent states, not populations. Now that it’s directly elected, it represents populations.

But is California’s population sufficiently represented in the U.S. Senate? Their two senators represent a lot more people than Wyoming’s two senators. California’s registered voters now outnumber the population of 46 states, combined. Shouldn’t California have more U.S. Senators than those states?

Yes, if the Senate is just another chamber of directly-elected national legislature, like the House of Representatives. No, if the Senate is a bulwark of states’ interests, a barrier to runaway central government authority.

Thus the 17th Amendment, which voided and replaced the original language in the third section of Article I, introduced structural schizophrenia into the elegant Constitutional scheme. We now have a system in which states have no say-so in the membership of the U.S. Senate, which is designed and empowered to frustrate popular legislation on their behalf.

The Constitutional provision for election of U.S. Senators by state legislatures played a crucial role in ratification. It reassured Anti-federalists like Patrick Henry that the Constitutionally empowered central government could be prevented from running roughshod over states, swallowing up their powers and prerogatives.

It’s clear today that Henry’s darkest suspicions were justified. The 10th Amendment, proposed in 1789 and ratified in 1791, is in tatters. It guarantees that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That means that if the Constitution doesn’t grant a power to the national government, it doesn’t have that power. It belongs to us, in the states.

The 10th Amendment remains in the Constitution as a quaint remnant, but perhaps no Constitutional provision has been more thoroughly and stubbornly disregarded in 20th and 21st Century practice. Whether it’s Obamacare or the federal Department of Education or the EPA, most modern presidents and U.S. Senators have never met a 10th Amendment violation they didn’t like.

Although the federal judiciary claims the mantle of Constitutional protector for itself, it has abdicated any meaningful role in defending the 10th Amendment. If Patrick Henry were alive today, he might tell us that the doom of the 10th Amendment was sealed when the 17th Amendment stripped it of institutional protectors.

I’m with Mark Levin and Mike Huckabee, who have called for repeal of the 17th Amendment. Paradoxically, indirect election could make the Senate more democratic, more sensitive to the grass roots, less beholden to shadowy cash-flushed PACs, less reliant on big media buys and therefore less preoccupied with campaign fundraising. Washington insiders would lose their grip on Senate campaigns, which would revert to pragmatic, down-to-earth state legislatures.

It’s time to end this reckless Constitutional frolic that second-guessed the Founding Fathers, and guessed wrong. It’s debatable whether repeal would give us our country back, but at least it might give us our states back.

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