The XVIIth Amendment

When the United States Constitution was drafted, it provided that each State would have two Senators each, to put the States on equal footing. Senators were not to be representatives of the people, but of the States. States, through their legislatures, assigned Senators to Washington to look out for the interests of the individual States. Not belonging to any particular party, the Senate was set up so they could take a dispassionate look at issues and legislation.

This was accomplished by not having the Senators elected by the people. The idea was that if they did not have to worry about the pressures of getting reelected, they could separate themselves from the turmoil of everyday politics. Instead, they answered only to the States themselves.

Those who make the claim that the Senate is misallocated obviously don’t understand how it was designed to work. Even John McCain and his bubble headed offspring don’t understand this, and McCain is a Senator.

“We’re both frustrated with the idea that only the hyper-conservative wing of the party is going to represent the masses [referring to the Tea Party],” Meghan McCain said during an interview with ABC and Yahoo News.

News flash and lesson time!

The United States Senate was never intended to represent “the masses”. Senators are intended to represent the States.

As I was doing research for this article, I ran across this absurdity from Tufts University “independent” newspaper, from a university near Boston, Massachusetts. This does not surprise me coming from such a liberal area, and someone who does not study, nor understand American history:

The list of reasons why Americans feel their politics are broken is long and growing. Here’s one of many: The U.S. Senate, which due to the way the U.S. population has grown and settled, has developed a “small state bias” so grave that it is on the verge of becoming an undemocratic institution. The issue is serious enough that it has become necessary to question whether major reform of Congress, and particularly the Senate, is needed.

Small state bias? That was the entire reason the Senate was created in this form! The smaller states were afraid that Virginia, the largest and most populous State at that time, would dominate the government. We don’t need Senators to represent the people, we have a House of Representatives for that. What we need is the return of State representation.

The House of Representatives has a large state bias built into it. To balance that, the Senate had a small state bias. I say had, because the XVIIth Amendment changed that. What she is suggesting (and I am assuming the author is a woman based on the name. I could be mistaken and the author is a guy) is that we replace the Senate with a chamber that also has a large state bias, so that 9 states can dominate the other 41. In a day when we complain that a small group runs the country, does that make any sense at all?

That is faulty logic.

That each State had equal representation was so important to the Founders that they made it the only thing in the Constitution that nearly impossible to amended, meaning that 100% of the States would have to agree. From Article V:

…and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

So, tell me, Miss Leslie Ogden, know it all college student who authored that piece at Tufts University, how exactly do you have a major reform of the Senate to conform to your ideal without every single State consenting to giving up its equal suffrage? That would require scrapping the Constitution altogether.

Have you actually read the Constitution, or are you just making stuff up as you go along?

I think she is making it up. She goes on to say

In creating our bicameral legislative system, the founding fathers attempted to balance the issue of big/little states by creating a House whose representation was based on population and a Senate based on proportionality. In The Federalist Papers, James Madison explains his intent to create a “mixture of principles of proportional and equal representation,” particularly “among a people thoroughly incorporated into one nation, [in which] every district ought to have a proportional share in the government.” In essence, to create an equal vote that is a “constitutional recognition of the portion of sovereignty remaining in the individual States.”

Incorrect. First of all, basing representation on population is proportionality.

What she is missing is that Madison (the entire quote is printed below) is saying that every district should have a share of representation based on the proportionality of representation, and creating an equal votes among the States themselves allows them to retain what little sovereignty they have left.

James Madison authored the Virginia Plan, much of which was used as the basis of the Constitution. In it, he wanted two chambers, the numbers of both were to be based on the number of free inhabitants (excludes slaves), or the quotas of contribution. In other words, no matter how you sliced it, Virginia would be granted the largest number of representatives in both houses, and would be able to easily dominate the national government. The members of the Senate were to be elected by the House of Representatives.

Of course, the smaller states like Connecticut and Rhode Island (the last of the original thirteen to ratify the Constitution) were having none of it. Under the Articles of Confederation, each State had one vote. they were all equal. Small States did not want to give that up.

In The Federalist #62, James Madison, under the name Publius wrote:

The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but “of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.” A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. (emphasis in the original)

In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.

Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the facility and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.

Certainly Madison is saying that he doesn’t think that equal representation in the Senate is a good idea, but it is what it is. It must be remembered, however, that Madison had a dog in the fight for the larger states to be the leading voices in the Federal government. His state was the largest and most prosperous at the time.

But he goes on to admit that it is a necessary thing, to provide a check against improper legislation, providing an additional impediment to a bill becoming law. First, a bill must be approved by the people (the house of representatives), then by a majority of States (the Senate) before it goes to the President.

The article ends with these words:

However, due to the growth of the number of states in the U.S. and the migration and expansion of our population, the big/little state balance in the Senate has become approximately one-to-four, creating a “small state bias.” This small state bias is additionally exacerbated by the proportional allocation of Congressional seats, which immediately gives each state one Representative, regardless of population. This means that while California has more than 66 times the population of Wyoming, as we saw, it only has 53 times more Congressional seats. Therefore, even in the House, large states do not receive the proper amount of representatives because each state is automatically allocated a Congressman, regardless of the mathematical proportion. The net result of this is that smaller, more rural and less demographically diverse populations in the U.S. have exaggerated influence in Congress today.

Where this small state bias becomes undemocratic is on issues that affect large and small states very differently. Immigration reform is a good example. Most of the new migrants who have come to the U.S. in this last wave of very heavy immigration have ended up in the large states. Seventy percent of Hispanics, for example, reside in the top nine most populous states. The states where most recent migrants and their families live have somewhere between 20 and 30 Senators representing them in Congress today even though they have a majority of the U.S. population. The other states, with a minority of the U.S. population, have between 70 and 80 Senators representing them. Despite the fact that poll after poll show that a clear majority of Americans support “comprehensive immigration reform,” it has been extremely difficult to get it passed through Congress in recent years. The voices of the majority who support immigration reform are wildly underrepresented in the current design of our Congress.

At a time when societies around the world are working hard to improve their own civic institutions, it would be a welcome sign for the world’s most important democracy, the United States, to help inspire this process by updating and renewing its own.

In other words, it is so unfair that these little/rural/flyover states can stand in the way of our Progressive agenda and legalizing all these illegal immigrants that have migrated to the big cities!

By complaining that each State gets at least one representative, regardless of population is suggesting that the smaller states should get no representation at all! It isn’t about mathematical proportion, though. It is based on the fixed number of representatives in the House. The House contains 435 representatives. California has 12.1% of the population, and are given 12.1% of the representatives. Wow, that was hard to figure out.

Poll after poll only shows that the majority of people polled support comprehensive immigration reform. I would suspect that most of those respondents live in big cities, not in rural areas, where people have more important things to do than answer polls.

The author of this piece is full of talking points, but little on actual research and understanding.

As we entered the early 20th Century, the Progressives, and the political parties managed to completely screw the government up. The text of the amendment changes the way Senators are selected. They are selected no longer by the State legislature, but by the people through direct election now.

The text also sets up how replacement Senators are appointed.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Why was this amendment needed? Do we still need it today?

Prior to the adoption of this amendment, there were issues with empty seats in the Senate at times, mostly due to growing hostility between the States over the issue of slavery. After the war was over and the south was being readmitted to the Union during Reconstruction, other problems arose.

From the United States Senate website:

After the Civil War, problems in senatorial elections by the state legislatures multiplied. In one case in the late 1860s, the election of Senator John Stockton of New Jersey was contested on the grounds that he had been elected by a plurality rather than a majority in the state legislature. Stockton based his defense on the observation that not all states elected their senators in the same way, and presented a report that illustrated the inconsistency in state elections of senators. In response, Congress passed a law in 1866 regulating how and when senators were elected in each state. This was the first change in the process of senatorial elections created by the Founders. The law helped but did not entirely solve the problem, and deadlocks in some legislatures continued to cause long vacancies in some Senate seats.

And who were these deadlocks created by? The political parties.

Each State should be able to decide for itself how it elects its own Senators. The American Civil War not only resolved the issue of slavery, but it also laid the groundwork for a slow, creeping power grab by the Federal government under the guidance of the political parties, by decreeing to each State how to elect its own Senators.

There were also fears that the State legislature might be corrupt, and sell the seat to the highest bidder, or someone who could provide the most gifts to the legislators would be given the seat.

Also from the United States Senate website:

Intimidation and bribery marked some of the states’ selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906. In addition, forty-five deadlocks occurred in twenty states between 1891 and 1905, resulting in numerous delays in seating senators. In 1899, problems in electing a senator in Delaware were so acute that the state legislature did not send a senator to Washington for four years.

So Delaware did not send a Senator to Washington for four years. However, according to the Constitution, the Senate only needs 51 members present in order to do business. A plurality, but not a majority.

But the heart of this issue lies with the political parties. When you are reduced to two choices, deadlocks will become commonplace.

The Constitution allows for the Senate to deal with these issues. the Founders certainly knew that not everyone would seek elected office for purely altruistic reason, or reasons of serving their constituents.

From Section 5 of Article I:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

So, if it is discovered that a Senator received his appointment due to intimidation or bribery, the Senate does have the power to expel that Senator.

What we have now is a shift from the intimidation and bribery of State legislators to corrupt, career Senators in Washington who answer to no one except their donors and special interests, while looking out for themselves. Not the interests of the States, and not the interests of the voters. At least the State governments could have some sort of oversight of their own Senators.

They obviously thought that by having the people elect the Senators, this would eliminate corruption in politics. Kind of like how they think that if they take everyone’s guns away, murders will suddenly dry up and disappear. Someone should have taken Cain’s assault rock away from him before he hit Abel over the head with it.

Senators are no longer beholden to the voters nor the States, but to lobbyists and special interests. Special interests fund their reelection campaigns.

Instead of a cool, disinterested chamber, we now have a partisan, bickering, echo chamber. That is not what it was ever meant to be. For those who complained that Senators were not seated back in the past, the Constitution addressed that issue, and allowed for business to proceed as long as a certain number were present. Those who whine that things happen on a plurality rather than a majority forget that this is not a democracy, no matter how many times people say it is.

This amendment has gone a long ways towards screwing our government up, and turning the Senate chamber into something it was never meant to be. This amendment should never have been passed, and needs to be repealed.

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