Document Type

Article

Publication Date

1997

Abstract

One of the most remarkable aspects of the Constitution is the manner in which it marbles together people and states. By ratifying the Constitution, the states agreed to cede a portion of their sovereignty to a new entity, the ‘United States.’ The states granted to Congress their collective powers to impose taxes, incur debt, issue coin and securities, regulate commerce among the states and with other sovereigns, and control the engines of war. The states further relinquished their rights to act as independent sovereigns and enter into treaties with foreign countries, coin money, grant titles of nobility, and wage war. The states gave up their powers to lay duties on the goods of other states, to treat citizens of other states as aliens who lack the privileges and immunities of their own citizens, and to regard the public acts of other states as those of foreign powers.

As to those powers vested in Congress and deprived the states, Congress's authority was complete over people and states. Nevertheless, Congress did not acquire the plenary powers of a national government. The mechanism by which the states could most readily defend against federal encroachment was their representation in the Senate. ‘[T]he equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and the instrument for preserving that residuary sovereignty.’ State legislatures stood to mediate between the national government and the people, both for the state's account and the account of the people. Accordingly, the Constitution entrusted to state legislatures the duty to elect the state's senators.

Ironically, in 1913 the states dealt away their most potent tool--most willingly and in near record time--by ratifying the Seventeenth Amendment. During the debates over the proposed amendment, Elihu Root, New York Senator, former Secretary of State and War, and future Nobel Peace Prize winner, recognized the folly of this act. He said that in the original mode of selecting senators the people were as Ulysses, heroically bound to the mast that ‘he might not yield to the song of the siren . . . . [[[S]o the American democracy has bound itself . . . and made it practically impossible that the impulse, the prejudice, the excitement, the frenzy of the moment shall carry our democracy into those excesses which have wrecked all our prototypes in history.’ Just as the Goddess Circe had warned Ulysses, ‘no one,‘ Root argued, ‘can foresee the far-reaching effect of changing the language of the Constitution in any manner which affects the relations of the States to the General Government. How little we know what any amendment would produce!’

Yet, unbind themselves the states did. How could the states have been so foolhardy as to disenfranchise themselves? Why would the state legislatures surrender their most important constitutional function? Senator Root correctly surmised that when the states unbound themselves from the mast, they had little idea of the consequences of the amendment. In the eighty-three years since the states ratified the Seventeenth Amendment, they have willingly, though ignorantly, accepted the consequences of direct election. This article is an attempt to assess those consequences. The author concludes that the actual effect of the Amendment has been greatly understated and that its role in reducing the constitutional position of the states has been enormous. Almost inadvertently, the Seventeenth Amendment altered constitutional politics, further insulating states from sharing in the control of the government they united to create.

Publication Citation

91 Nw. U. L. Rev. 500 (1997).

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