Recently The Augusta Press reported on a lawsuit from a fellow Columbia countian attempting to set aside the election of Senators John Ossoff and Raphael Warnock on the grounds that Georgia had never ratified the 17th Amendment. That is the amendment which requires popular election of U.S. senators.
You may never hear of this lawsuit again. The plaintiff lacks standing, and there is no requirement that a state ratify an Amendment in order to be subject to it. But it did get me thinking about the role of the senate – especially as I keep seeing memes claiming that the body is not “democratic.” In a way, that is an odd charge against a body that was designed not to be democratic. But read on.
Under the original Constitution, each state was to have two senators, and they were to be chosen by each state’s legislature. If you know the history, there is no mystery why this was done. For a decade, the country had been governed under a document with the imposing name, The Articles of Confederation and Perpetual Union.
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To put it politely, this document was a flop. The states remained sovereign, which meant that the new government could make no laws without unanimity, could not raise taxes, and was unable to deal with foreign threats or domestic rebellions.
In 1787 the Founding Fathers quickly consigned the Articles to the dustbin of history and wrote a brand new document. In one area, their change was quite drastic.
Article VI of the new Constitution reads, in part: “This Constitution, and the Laws of the … made in Pursuance thereof … shall be the supreme Law of the Land …” Simply put, sovereignty was transferred from the states to the nation as a whole. The Founding Fathers understood that we had not fought an 8-year war of independence to be a group of countries, but rather to be a single country. Did the Founding Fathers have the authority to do this? No – but all states ratified the new document, so it didn’t matter.
However, no one expected or wanted the states to disappear as important entities. Except maybe Alexander Hamilton, but that’s a whole different story. The smaller states were particularly concerned about their future in this new system. They demanded protection – and they got it. Many people will cite the 10th Amendment – “The 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” – but that came after the original document was finished. Far more important was the senate, which gave each state equal representation, and allowed the state government, through its legislature, to choose its two senators.
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Arguments soon developed. Popular election was first proposed in Congress in 1826. Some states began to hold popular votes, but these were not binding. In a famous 1886 case, the people of Nebraska voted 10-1 to reelect Henry Van Wyck to the senate, but the legislature chose someone else. Public pressure built until, in 1913, the Constitution was amended to read that Senators would be elected “by the people” of each state. The result has not been what many at that time hoped.
The election of senators by popular vote has created a very different kind of election. A senate election can become a national election, with opposing parties pouring money and other resources into the election. The popular will is better represented – but which popular will? The will of the state’s inhabitants, or the will of influential national movements? I think quite often, the latter.
When the Founding Fathers required both state selection and selection by state legislatures, they were creating a framework that would protect the states, which were now voluntarily surrendering their sovereignty. The Founders did not choose state legislatures as the mechanism because they had a great love or trust of state legislatures. Rather, they chose the entity most closely intertwined with the needs of the state. (They did not mention state governors, perhaps suspecting them of having national ambitions.) And state legislatures would have far more knowledge of the people they were sending to the Senate, than the ordinary voters could have.
The Progressives who pushed for the 17th Amendment were motivated by a sincere desire to reduce the influence of the “smoke filled room” where deals were made. And they enjoyed massive public support for their position. But maybe we need to smoke filled room back. Senate aside, it’s a much less polarized place. My fellow Columbia countian may not get far with his lawsuit. But he may have a point.
Hubert van Tuyll is an occasional contributor of news analysis for The Augusta Press. Reach him at hvantuyl@augusta.edu
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