How the Seventeenth Amendment Diminished the Tenth Amendment

The Seventeenth Amendment was approved by Congress on May 12, 1912. Within a year it had received the requisite ratification by three-fourths of state legislatures. The Seventeenth Amendment provided for the direct popular election of Senators:

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 Seventeenth Amendment altered the way that Senators were chosen. Previously, Senators were chosen by the legislatures of each state:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

For many progressives, the Seventeenth Amendment was viewed as a triumph for democracy. However, its real effect was to undermine federalism and to ultimately endanger the Tenth Amendment. 

The Constitution designed the structure of the federal government in such a way that provided checks and balances by the states on federal power. The Tenth Amendment is the most dramatic example of this. The election of Senators by state legislatures was another no less important example. When Senators were dependent for their jobs upon the legislatures of their states, the Senators were more likely to protect the interests of their states. The Seventeenth Amendment essentially transformed Senators into “super Congressmen,” whose constituencies were not the states themselves but large districts that made up the entire citizenry of the state. 

Judge Andrew Napolitano has argued that he would repeal the Seventeenth Amendment because it is so destructive to federalism:

I would repeal the 17th Amendment [which provides for the popular election of U.S. senators]. Can an amendment to the Constitution itself be unconstitutional? Yes, that one. If you read Madison’s notes from the constitutional convention, they spent more time arguing over the make-up of the federal government and they came up with the federal table. There would be three entities at the federal table. There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators. Not the people in the states, but the state government. When the progressives, in the Theodore Roosevelt/Woodrow Wilson era, abolished this it abolished bicameralism, the notion of two houses. It effectively just gave us another house like the House of Representatives where they didn’t have to run as frequently, and the states lost their place at the federal table.

Unsurprisingly, the Seventeenth Amendment has been instrumental in eroding the Tenth Amendment. The Congress has been more and more willing to assume powers not specifically granted to it within the Constitution. Social Security, Medicare, “Obamacare,” and so many other powers that Congress has assumed are not specifically enumerated as powers that Congress has. Such programs should belong to the states – if the states wish to enact them – according to the Tenth Amendment. With no self-interested reason to protect the constitutionally granted powers of the states that they represent, Senators have gone along with enlarging the powers of the federal government. In essence, they have left nullification and secession as the only checks and balances that the states still have against the power of the federal government.  

Democracy is not always an intrinsically good thing. The Founders rightly worried about the possibility of “tyranny of the majority” and also worried about the federal government becoming so powerful that it would subvert the power of the states. Unfortunately, this is exactly what has happened.