Law Professor: 17th Amendment 'Disenfranchised States'

By Amy Furr | December 6, 2016 | 2:15pm EST
Chapman University Law Professor John Eastman. (Chapman University)

( --  The 17th Amendment, which allowed the popular election of U.S. senators, “disenfranchised” state legislatures and altered the U.S. Constitution's checks and balances, Chapman University Law Professor John Eastman told an audience of state legislators in Washington, D.C. last week.

The amendment made it easier for Congress to pass legislation, which eventually led to the massive growth in federal power that the states are still grappling with today, Eastman told attendees at the American Legislative Exchange Council’s States & Nation Policy Summit  on Friday.

“What the founders did is come up with this counterintuitive notion that adding an extra layer of government would provide less government and greater liberty. And it only worked if those governments were in competition with and in conflict with each other,” he said.  

"That all went away when we disenfranchised - I think [that’s] the phrase we want to get accustomed to using - we disenfranchised the states from a role in the federal government by removing their ability to choose the senators,” Eastman said.

Before the ratification of the 17th Amendment in 1913, each state legislature chose the state’s two U.S. senators while House members were elected by popular vote. This meant that the interests of the state would also be represented at the federal level, Eastman said.

“So here, like in so many other sources, the wisdom of the founders was profound, and we muck with their system without even thinking through how profound it was, and we’re now reaping the consequences,” he noted.

Eastman explained that before ratification of the 17th amendment, “the senators represented the state governments, not simply the people of the state. They were chosen by the state legislatures. And you can go back and look at the debates and see the strain of this great compromise is there from the very beginning.”

The professor added that the 17th Amendment has drastically altered the system of checks and balances that the founders carefully designed.

“The entire infrastructure can be changed with one structural design change. That’s what we saw happened here, what appeared to be minor and what appeared to be [a] salutary design change, ended up with radical consequences,” he said.

“Prior to the 17th Amendment... legislation had to be approved by the representatives of the people, in the House, and the representatives of the state governments, in the Senate,” according to a 2013 Independent Institute blog by Randall Holcombe entitled Repeal the 17th Amendment.

Holcombe pointed out that major legislation like the Affordable Care Act often imposes unfunded  mandates on the states. “If the Senate still represented the interests of state governments, it probably would not have passed—at least, not in its current form."

The 17th Amendment “has been a significant factor in turning what originally was a federation of state governments into a national system, where the federal government sits firmly on top of the states,” Holcombe wrote.

“If U.S. senators were elected by state legislatures, they would be dependent on state legislatures, they would look to all the people in this room for guidance, and they would want to keep you happy because they would all be looking to their own re-elections or their own legacies,” Trent England, vice president for strategic initiatives at the Oklahoma Council of Public Affairs,  told state legislators attending the ALEC workshop.  

"Who are senators dependent on today? The media. The donors. The special interests. Right? They’re dependent on everybody but the states whom they were originally intended to represent here in the nation’s capital,” England pointed out.

He also drew state lawmakers’ attention to the existence of an office building in Washington called The Hall of States, which houses the offices of private lobbyists.

“It’s called The Hall of States because usually every state, sometimes I think [former Texas Gov.] Rick Perry may have ended this practice for a time, so maybe we’re at 49 right now, but most of the time, over the last several decades at least, every state has hired private lobbyists to have an office in this building just off the Senate side of Capitol Hill. A private team of lobbyists in a private office building to go hat in hand and lobby Congress.”

England told the state legislators that even though they spend time on Capitol Hill meeting with their state’s congressional delegation, they are apt to feel that they have little or no influence because they are competing with lobbyists who work for major corporations.  

“I mean, state legislators, you go up there to Capitol Hill and you have no more, and maybe oftentimes you feel you have less clout than the lobbyists for major corporations who have much bigger... digs than the Hall of States, much larger teams of lobbyists than any of the states represented here can afford,” England said.

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