The 17th Amendment and the Decline of the Power of the States

     Prior to the ratification of the seventeenth amendment of the Constitution of the United States in 1913, senators were appointed by state legislatures. Since then, senators, like representatives, have been directly elected by the voters in their states. Many wonder why this wasn’t always the case, and why the framers of the Constitution did not establish the direct election of senators in the first place. However, as we will see, the reasoning behind having senators appointed by state legislatures was quite simple; it was another check on the growth of the federal government.

     One of the basic ideas of the framers was to put checks on the different branches of government and to balance different powers of government. In accord with this idea, the Constitution provides that the executive branch can check the legislative with the veto power, the legislative can check the executive by denying its appointments, and the judicial branch can check the other two by ruling that laws are unconstitutional. This grand system of checks and balances was supposed to limit the growth of any one branch of government. Not accounted for by these checks and balances is a check on the power of the federal government (if the three branches acted to expand federal authority) over state governments. However, the framers sought such control in the construction of the senate.

     At the drafting of the constitution, the framers intended that senators were to be appointed by the state legislatures so that the state governments would also be represented in the law making process at the federal level. The founders allowed for this in the Constitution because they realized that state governments, like all governments would be reluctant to give up any of their powers. As such states legislatures would choose senators who wouldn’t vote for things that diminished the power of the states. James Madison, who is referred to as the father of the Constitution, referred to this check on the power of the federal government in Federalist No. 62 when he said, “It is recommended by the double advantage of favoring a select appointment, and of giving to the state governments such an agency in the formation of the federal government, as must secure the authority of the former.” As a result, the appointment of senators by state legislatures secured the authority of the states.

     The passing of the seventeenth amendment undermined Madison’s original intent. As a result, states legislatures lost their representative at the federal level, congress has created many federal government agencies that impose extra costs on state governments. Congress has also passed legislation which diminishes the power of the states. This would not be the case today if the states were properly represented in the law making process.

     Of course one might point to the fact that representatives of the people often vote for extra taxes upon the very people they represent, so resultantly what would stop representatives of state governments from doing the same to the state government they represent? The difference is that senators picked by state legislatures were directly accountable to their votes in the U.S. senate. Such accountability was illustrated in 1835 when Senator Pelog Sprague of Maine was forced to resign after voting against the will of his state legislature. State legislatures are much less forgiving than the often public.

     Thanks to the seventeenth amendment, the states lost much power. As James Madison said in Federalist No. 45, “The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain to the state governments, are numerous and indefinite.” In the end, if the seventeenth amendment had never been ratified then one could rightfully conclude that the federal government would be much smaller today relative to its current size.