by Karl Kurtz
My sharp-eyed colleague, Ron Snell, noticed a bit of federalism trivia that had previously slipped by us in the 90 Day Report, a summary of the work of the 2012 Maryland General Assembly: Maryland ratified the 17th Amendment to the Constitution--the direct election of U.S. senators--during its legislative session earlier this year. Thirty-seven other states--the required three-fourths majority of states in those days--had ratified the amendment in 1913. Alabama ratified it in 2002 and Delaware in 2010.
Florida, Georgia, Kentucky, Mississippi, Rhode Island, South Carolinia, Utah and Virginia are the eight states that have not ratified the amendment. Utah is the only state explicitly to have rejected the amendment, according to Wikipedia.
In looking up this information, I was intrigued to read about a 1997 law review article, "Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment," by Judge Jay Bybee in which he argues that the state legtislatures' ratification of the 17th Amendment, giving up the power to elect U.S. senators, led to a gradual "slide into ignominy" for state legislatures.
I don't buy the "slide into ignominy," but I agree with Bybee that the 17th Amendment significantly hindered the role of state legislatures in the federal system. Here are some colorful paragraphs from the abstract of that article:
The mechanism by which the states could most readily defend against federal encroachment was their representation in the Senate.... State legislatures stood to mediate between the national government and the people, both for the state's account and the account of the people. Accordingly, the Constitution entrusted to state legislatures the duty to elect the state's senators.
Ironically, in 1913 the states dealt away their most potent tool--most willingly and in near record time--by ratifying the Seventeenth Amendment. During the debates over the proposed amendment, Elihu Root, New York Senator, former Secretary of State and War, and future Nobel Peace Prize winner, recognized the folly of this act. He said that in the original mode of selecting senators the people were as Ulysses, heroically bound to the mast that ‘he might not yield to the song of the siren . . . . [[[S]o the American democracy has bound itself . . . and made it practically impossible that the impulse, the prejudice, the excitement, the frenzy of the moment shall carry our democracy into those excesses which have wrecked all our prototypes in history.’ Just as the Goddess Circe had warned Ulysses, ‘no one,‘ Root argued, ‘can foresee the far-reaching effect of changing the language of the Constitution in any manner which affects the relations of the States to the General Government. How little we know what any amendment would produce!’
Yet, unbind themselves the states did. How could the states have been so foolhardy as to disenfranchise themselves? Why would the state legislatures surrender their most important constitutional function? Senator Root correctly surmised that when the states unbound themselves from the mast, they had little idea of the consequences of the amendment. In the eighty-three years since the states ratified the Seventeenth Amendment, they have willingly, though ignorantly, accepted the consequences of direct election. This article is an attempt to assess those consequences. The author concludes that the actual effect of the Amendment has been greatly understated and that its role in reducing the constitutional position of the states has been enormous. Almost inadvertently, the Seventeenth Amendment altered constitutional politics, further insulating states from sharing in the control of the government they united to create.
A search on "repeal the 17th Amendment" reveals that there is a substantial number of Don Quixotes out there--Ron Paul and the Tea Party, among others--calling for a return to state legislative election of U.S. Senators. Don't hold your breath waiting for it to happen, though, no matter how good an idea it might be for the health of state legislatures in the federal system.