Tahlequah Daily Press


June 24, 2014

Direct Senate elections facilitated by 17th Amendment

TAHLEQUAH — In the U.S. Senate, all states are equal. To many larger states, that may seem unfair, given that Texas has 26 million people and Oklahoma less than four million. But when the Framers of the U.S. Constitution created the Senate, population was never supposed to have anything to do with it. Senators were not even elected.

Today, senators are elected by popular vote, thanks to the 17th Amendment, which reads:

“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.”

The Framers saw a number of reasons to put senators beyond the reach of popular vote. Antifederalists, believing a central government might consolidate power, found comfort in a Senate wherein every state had an equal chance to check federal encroachment and could tell members how to vote.

But the Senate also carried the scent of 18th Century nobility. Despite their interest in giving the common people a voice in governance, the Framers could not suppress some of their prejudices toward them. The Framers believed the Senate, by representing the states, might also represent those with greater wealth, education and property.

By serving six years, senators would be less affected by political whims and climates, and not always campaigning for re-election. It would be a more dignified chamber.

In several ways, the Senate did represent the upper class, but by the time the 17th Amendment gathered momentum, much of the public believed senators were the pawns of state legislatures corrupted by wealthy interests.

Dr. Daniel Savage, chair of the Department of Geography, Political Science and Sociology at Northeastern State University, said the nation’s founders didn’t allow for direct election of senators because they wanted a “mixed government.”

“The idea can be traced back to ancient Greece, but was first realized in practice by the Roman Republic,” Savage said. “A mixed government combines elements of three types of regimes: monarchy, aristocracy and democracy. These are the three types of regimes contained in Aristotle’s typology of governments, which can be found in his ‘Politics.’ We can be ruled, Aristotle said, by one person; a few people, meaning the nobles; or the majority of people.”

Savage said all three types can degenerate into corrupt or unjust administration. Good rulers, in any number, acted for the common good. Tyranny, oligarchy or mob rule only protected their own interests.

During the Roman Republic, the Senate represented the nobility; the Tribunes stood for the commoners; and the Consuls controlled the army. Savage said the arrangement may have arisen by chance. Each group had a veto, and though similar to the U.S. republic, the Roman model was rooted in class divisions.

“Aristotle said in his ‘Politics’ that it is dangerous to allow the many to rule because they lack the wisdom, but it is dangerous to exclude them from ruling because that would be to risk rebellion,” Savage said. “The secret to involving the many, without allowing them to rule, is a mixed government. A pure democracy – not mixed with elements of the other two regimes – threatened tyranny of the majority, particularly tyranny of the majority poor.”

In 1786-’87, a revolt in Massachusetts, led by Daniel Shay and sparked by a depressed economy, successfully disrupted county court proceedings and attempted to capture Springfield Armory. Shay’s Rebellion offered Federalists some ammunition during the constitutional convention, when arguing the structure of the central government.

Savage pointed to an excerpt from James Madison’s Federalist No. 10: “The latent causes of faction are thus sown in the nature of man; and we see them everywhere …. A zeal for different opinions concerning religion, concerning government, and many other points, as well …. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.”

Madison also wrote that “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

The similarities of the Constitution’s model to that of 18th Century Britain aren’t difficult to ascertain: President equals monarch, Senate equals House of Lords, House of Representatives equals House of Commons.

As originally written, the Constitution only allowed for direct election to the House. Senators were appointed by state legislatures, and the states elect the president through the electoral college.

Savage said the theory of mixed government states that any single type of government will inevitably corrupt if ruling by itself, but if combined and required to cooperate, good government is the result.

“The wisdom and justice would not be a product of wise and just leaders – because we could never be sure of getting them, but of the process of checks each element had over the other,” he said. “While the few and the many would each look out only for their own interests, they would not be able to pass any laws that disturbed the other class too much, because it would be vetoed. The result would be that only wise and just laws could pass.”

Calls for an amendment to allow direct Senate elections were heard throughout the 19th Century. Henry R. Storrs, representing New York in the House, submitted the first proposal in 1826. Others followed in 1829 and 1855.

In 1908, Oregon and Nebraska based selection of senators on popular vote. Ten senators who opposed direct election were removed in 1910. In 1912, Oklahoma sent Robert Owen back to the Senate after holding an advisory popular vote. Arizona also used advisory votes of the people to elect its first two senators.

By 1912, most states were using primaries to name their senators, and 27 states had called for a constitutional convention on senatorial election.

The House passed a proposed amendment the year before, but it contained language intended to prevent federal interference in cases of voter discrimination based on ethnicity. The Senate removed the “race rider” before approving the resolution, 64-24.

It took the House a year to approve the Senate version. The final version of the 17th Amendment was passed by the House, 238-39, on May 13, 1912. The approval of Connecticut on April 8, 1913, ratified the amendment.

The 17th Amendment has not been controversial, but there have been calls to amend the power of governors to temporarily fill Senate vacancies with appointees. When Barack Obama, Joe Biden, Hillary Clinton and Ken Salazar left the Senate after the 2008 election, appointments by Rod Blagojevich, the embattled governor of Illinois, and the sending of private questionnaires to potential appointees by New York Gov. Ron Paterson, brought flak.

Today, Americans might find it strange that the Founders thought the Senate could be a quasi-aristocratic body in the spirit of the House of Lords. It’s still called the “upper house.”

Interestingly, Americans still have no constitutional guarantee to vote for president. It is only traditional practice that states let their citizens choose a group of electors - though many states have their own laws or constitutional clauses to protect the custom. And as the 2000 campaign demonstrated, it remains an indirect election. A majority of common votes is trumped by 270 votes in the college.

“The 17th Amendment officially ended the idea that the U.S. Senate existed to protect the interests of the upper class,” Savage said. “Perhaps it is time to trash the Electoral College as a means of choosing the president as well.”


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