The Seventeenth Amendment and Federalism in an Age of National Political Parties
Yale University - Law School
May 23, 2013
George Mason Law & Economics Research Paper No. 13-33
Despite it being the constitutional amendment that most altered the design of the federal government, and despite recent efforts by many prominent figures to repeal it, little is known about why the Seventeenth Amendment passed in 1913. Existing histories of why the Constitution was amended to require direct elections for U.S. Senators, rather than having them appointed by state legislatures, cannot account for two major historical puzzles. Why were state legislatures eager to give away the power to choose Senators? And why was there virtually no discussion of federalism during debates over removing a key constitutional protection for states?
Using both positive political theory and historical evidence, this Article offers a theory that can provide an answer to these questions. Support for direct elections was, at least in part, a result of the rise of ideologically coherent, national political parties. The development of national parties meant that state legislative elections increasingly turned on national issues, from war to currency policy to international trade, as voters used these elections as means to select Senators. State politicians and interest groups supported direct elections as a way of separating national and state politics. Federalism was not invoked against the Seventeenth Amendment because state legislative appointment was frustrating a precondition for the variety of benefits that come from republican federalism, the ability of state majorities to choose state policies. Modern advocates of repealing the Seventeenth Amendment, from Justice Scalia to Gov. Rick Perry, claim the mantle of federalism, but they have the case almost entirely backwards. Repealing the Seventeenth Amendment would reduce the benefits of federalism, as it would turn state legislatures into electoral colleges for U.S. Senators.
While important in its own right, the history of the Seventeenth Amendment can also teach us a great deal about how federalism functions in the real world of politics more generally. First, contrary to the claims of scholars like Larry Kramer, national political parties do not necessarily serve as “political safeguards of federalism,” but instead can make state politics turn on national issues, reducing the influence of the preferences of state citizens on state policy. Second, certain state governmental powers – from the power to gerrymander to control over issues normally associated with the federal government – reduce the democratic accountability of state officials that undergirds most normative theories of federalism. Finally, despite the Seventeenth Amendment, state elections today still largely turn on national politics. Although state issues are sometimes important, the most important factor in state legislative elections is the popularity of the President. If the benefits for state democracy sought by supporters of the Seventeenth Amendment are to be achieved, electoral reform is a more promising avenue than structural constitutional change.
Number of Pages in PDF File: 65
Keywords: Alan Grimes, appointing, convention, Democrats, electing, Federalist Papers, Founders, George Will, Great Compromise, House of Representatives, James Madison, Jeff Flake, Michael Lee, Peter Hoekstra, ratification, Republicans, Richard Mourdock, Senatorial, Supreme Court, Tea Party, Todd Akin, Wilson
JEL Classification: D72, P16
Date posted: May 25, 2013