The dramatic events in Washington, with the seemingly impossible suddenly appearing possible, invite us to unleash our dreams. What kinds of fundamental reforms are needed?
I would like to see the bicameral Congress restored. It was obliterated in 1913 with one Constitutional amendment that hardly anyone truly understood at the time. What they did seemed like an advance on democracy. What it achieved was to wreck the functioning of the federal legislature.
The Framers set up Congress with a bicameral structure that roughly paralleled the British Parliament, which has a House of Lords and a House of Commons. They were supposed to represent different interests and constituencies, one for the people and one for the institutional stakeholders who had done so much in the past to guarantee the rights of Englishmen against arbitrary edicts from the king.
The wisdom of those times, and it is still true, is that liberty is best protected by institutional resistance from below. It was generally understood that individuals alone stood little chance of countering the advances of tyrants but landowners, localities, and major forces at lower levels of society had the resources to marshal resistance against the center.
This belief was the foundation of the U.S. Constitution, which had a legislative branch consisting of two equal but very different parts: a House of Representatives and a Senate. The House was to be elected by the people. The Senate was designed to represent the states in a federalist structure. For this reason, the Senate consisted of people appointed to the task by the legislatures of the state. Their primary loyalties would be to the whole of the geography and population of the state.
It was a brilliant structure that served this country well from the Founding through the 20th century. Incredibly, a huge error was made in 1913, a time when the intellectuals were running wild with reformist schemes and grand new experiments in governance. This generation gave us the income tax, the central bank, and also blew up the bicameral model of Congress. Nothing has been the same ever since.
The 17th Amendment changed one word in the Constitution. It changed the Senate from being an appointed position by the state legislatures to being a position elected by the people as a whole. It was a crazy idea that actually blurred the huge difference between the House and Senate. Now both would be elected by the people.
Who opposed this change? Former President William Howard Taft said: “The change of the selection of Senators from the State Legislatures to the people will, I fear, in the long run produce a solidifying and centralizing of power at Washington, to the destruction of the balance of the Federal system.”
Theodore Roosevelt objected: “The direct election of Senators, if not carefully guarded, might lead to the undue influence of populous cities and the neglect of our rural districts.”
The progressive publication The Nation editorialized: “The proposed change would enhance the power of the big cities at the expense of the rural and less populous areas, potentially skewing national policy towards urban interests.”
The new system proved tremendously dangerous, as any amount of thought could have anticipated. The large cities in states ended up as the controlling force of who got elected to the Senate, which is precisely what the Framers had tried to prevent. Under the old structure, the entire territory was represented. Under the new structure, only the large cities gained representation. The candidates for Senate needed only to campaign in large metropolitan areas and could otherwise forget about the rest of the state.
This new structure created vexing problems for the whole country. If you live in New York or really any state that is not 100 percent red, you know this problem. The urban areas tend toward blue in politics, favoring taxation, regulation, redistribution, and more largesse from the public at large. The rural areas are invariably more sensible, jealously guarding their liberties and property from the center.
A Senate that represents only the cities is a danger to liberty.
This is a major legal problem that admits no real answer apart from a genuine and clean repeal of the 17th Amendment. We would just have to face it: this was a huge mistake that attacked the Constitution at its core. It was passed in a willy-nilly fashion by a generation that had no idea what it was doing. That change fundamentally reoriented the country and its government.
Keep in mind that in creating the central government, the Framers had no intention of forcing states to acquiesce to everything the federal government wanted. It was supposed to be “these” United States, with the federal government only intervening to defend fundamental liberties of the people. The 9th and 10th Amendments make the point: the liberties of the people come first but otherwise, the states would retain all legal rights not mentioned directly in the Constitution.
The bicameral structure of Congress was designed specifically to shore up this federal system, which Lord Acton had later claimed was the key innovation of the American system. It would forever be fundamentally decentralized, a federation of states that would come together in their common interest. The Senate was designed to represent the interests of the states and be jealous of the liberties of the people therein.
The change of one word—appointed to elected—upended this system, abolished the bicameral structure, and ruined the role of the legislature. You must surely have wondered why it is that we have two houses of Congress both elected by the people, one with 435 members and one with two members per state. This seems redundant because it is. It makes no sense. It was never supposed to be this way. The Framers had established a different system.
So long as we are thinking big—based on the widespread view that something has gone very wrong in the course of American history—I would like to see some more debate and discussion of this subject. We need some brave legislator to introduce a bill and an amendment that says simply: “The 17th Amendment to the Constitution of the United States is hereby repealed.” It would be the 28th Amendment. It is very much needed.
The effect would be incredible. You would no longer vote for the Senate. You would vote for your local representatives to the state legislature and the legislature would then appoint two people to the Senate. How they would go about this would be up to them but the point is that whomever they pick would necessarily represent a broader interest of the whole state rather than just New York City, Chicago, Los Angeles, Denver, Atlanta, Boston, and so on. The whole of every state would finally have its voice restored in Washington. The impact would be to turn the Senate dramatically red simply because it would now represent the whole interests of the states.
You say that this will never happen. Maybe not. But we never thought the USAID would be suddenly defunded, the Department of Education unplugged, or Trump elected to a second term. These times should invite us all to think more foundationally and radically. Repealing the 17th Amendment would restore what the Framers envisioned. A bicameral Congress worked back then and it could work again.
