The second of Mark Levin’s Liberty Amendments in his new bestseller is “An Amendment to Restore the Senate.” The amendment is divided into four sections with section one repealing the Seventeenth Amendment, and the respective state legislatures choosing their state’s senators like the nation did before 1913. Section two simply states that the new amendment does not affect any current office holders. Section three states that when vacancies of senate seats occur for more than ninety days, the governor shall appoint an individual to fill the vacancy for the remainder of the term. Likewise, section four states that any senator can be removed from office by a two-thirds vote of the state legislature.
The Seventeenth Amendment, while initially passed for the correct reasons, has failed to deliver responsible government and should be repealed to once again allow state legislatures to select senators from each state.
Levin concedes that during the years of America’s progressive movement, the idea of popular of election of senators was a noble one. If you place yourself in the historical context of the times, the late 19th century and early 20th century were considered the heyday of American machine politics (the most famous of these was undoubtedly New York City’s Democratic machine, Tammany Hall). Through graft and patronage, these political machines were able to use their influence over state legislatures to install their machine picked candidates for senate. Progressive reformers believed that by the people directly electing their U.S. Senators, you could bypass machine politics, and in turn, this would weaken organizations like Tammany as a whole.
Due to tougher federal corruption laws, municipal reform, and sometimes forcible removal from office (see the 1946 Battle of Athens), it was accurate to say that machine-era politics are mostly a thing of the past. This allows us to view the Framers intentions when they created the U.S. Senate. Through Mr. Levin’s book we see that at the time of the Constitutional Convention, the Framers of the Constitution intended for the higher chamber of Congress, the Senate, to be more directly removed from the people and an institution that allowed the individual states some check of power against the federal government. Unlike the House of Representatives which was always intended to be elected directly by voters and more accurately mirror their will, the Senate was created to be an institution where hard decisions could be faced head on without the fear of popular backlash.
During the ratification debates that followed the convention, James Madison went to great lengths to highlight this in Federalist No. 39 when he stated, "The first question that offers itself is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America."
As future President Madison’s quote dictates, the people were not to have a hand in selection of all leaders of the new nation as a way of checking tyranny of the majority. With voter competency becoming a more common topic in the media, this sheds light on the Framers' intentions in modern times.
It is worth noting that if senators simply did their job as it was intended to be done by following the Ninth and Tenth Amendments, there would be no problems with the Seventeenth Amendment as it currently stands. As is often the case in politics however, the senate has become just another institution where members have to cater to a base and where members are constantly planning on their next reelection campaign. As testimony to this, observe how common it is to see Sen. Reid (D-Nev.) and Sen. McConnell (R-Ky.) engage in partisan mudslinging on the Senate floor knowing that it will make news headlines?
While the merits of repealing the Seventeenth Amendment make sense as a way to help restore the state’s power in governing at the federal level, many would see this as something negative. In my view, a lesson in checks and balances as the Founders intended them to be is warranted.
Lastly, the ultimate problem of repealing the Seventeenth Amendment falls on the realistic prospects of repeal. Which political party would be brave enough to put before the American people a proposal that is going to take away their power to directly elect their senators by popular vote? I would be pleasantly surprised if more than 50% of people even knew that their state legislatures selected Senators before 1913. So unfortunately, it appears as if this proposed Liberty Amendment is likely to fall on deaf ears for the foreseeable future.