The 17th Amendment, neo-secessionists and the Return of Federalism

With the passage of the Heath Care reform act, known as “Obamacare” to its critic, the members of the “Liberty Right” or the “Paleoconservatives” have been making increasing noise about the validity of secession as a check on the power of the central government.  This stems from the idea that the states no longer have any check on the powers of the Federal Government to intrude on their traditional domains. 

                Few people actually advocate that secessionism is a valid exercise of state power; most accept the results of the War Between the States as a final referendum on the rights of states to leave the Union short of its complete dissolution or devolution.  However, there still remains the very real question of who will keep the national government in its box when they attempt to step on the toes of traditional state functions. Some would say that that function belongs to the courts, but the courts are less inclined to become engrossed in “political questions” and will more often than not defer to the decisions of the U.S. Congress.

                The more moderate members of this movement have suggested a simple and elegant solution to this question, an idea which dates back to the original intent of the framers, namely the repeal of the 17^th Amendment mandating direct election of Senators.  There are three primary arguments in favor of this proposed action:

1.       The purpose of the state legislatures selecting Senators was considered to be very important to the founders.

2.       The wrong that direct election of senators was thought to correct has not and will not be alleviated.

3.       Repeal of the 17^th Amendment will increase interest in elections to state legislature which will increase the quality of representation and governance in the states.

In Federalist No. 62, James Madison said that the system proposed would give “to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems”.  The Founders saw the Senate as a way to represent the States as an entity and create a link through which the governments of the several states could act as a counterbalance to the majoritarian impulses of the people at large, represented by the House.  The intent was clear through most of Federalist 62, 63 and 64 that the Senators were not intended to be “super Representatives” and should be free from the burden of campaigning and pandering, instead being a wise and august body presenting a stable front both to the people and other nations.

The movement which culminated in the 17^th amendment sought to eliminate corruption and influence peddling in the selection of senators, William Randolph Hearst was crucial in this effort by publishing several articles detailing the corruption and vice of appointed senators. It is fairly clear that direct election has not alleviated this problem and may have even made it worse because of the millions of dollars required to mount a state-wide campaign, particularly in states with large markets like Florida.

In summary, the repeal of the 17^th amendment would likely not greatly the overall makeup of the Senate. Assuming that those legislatures which have split house control will appoint one Senator from each party (a traditional compromise) and that Nebraska’s unicameral, non-partisan legislature appoints one of each as well, the Democrats would actually gain 6 seats, owing mostly too large “Blue Dog” legislatures in Alabama and Mississippi and the loss of the Republican Senators in Maine.  However this would encourage in the engagement of the populace in the state legislature races and would likely, over the course of one or two election cycles, lead to a final normalization of both the “Blue Dog” phenomenon evident in the Deep South and the “New England Republicans” which has been ongoing for the last 20 years.  The minor cost of the loss of one house of directly elected legislator would be more than outweighed by the benefit of a body which represents the interests of the state as a whole in a truly Federalist fashion.