Legal Commentary

Would Repeal of the 17th Amendment Help Limit Federal Power?

By Ilya Somin

In a recent post and a forthcoming National Review article, co-blogger Todd Zywicki argues that repealing the Seventeenth Amendment would be an important step towards protecting federalism and limiting federal power. Todd is one of the leading academic experts on the Seventeenth Amendment. But I respectfully disagree with him on this point. I outlined my objections in this post:

Many conservatives and libertarians believe that the 1913 adoption of the Seventeenth Amendment... was a great mistake that led to a vast expansion of federal power.... The assumption underlying this claim is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power.

Unfortunately, these Seventeenth Amendment critics are wrong. The Seventeenth Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly elected senators are.

I also disagree with Todd?s claim that the Supreme Court did little or nothing to restrict federal power prior to the enactment of the Seventeenth Amendment. The Court did in fact enforce fairly substantial limits on Congress? powers under the Commerce Clause and Tax Clause in cases such as E.C. Knight and Pollock. Such judicial review of federalism issues was clearly contemplated by the framers of the Constitution. For example, in Federalist 39, James Madison wrote that ?in controversies relating to the boundary between the two jurisdictions [federal and state], the tribunal which is ultimately to decide, is to be established under the general government,? clearly referring to the Supreme Court. He notes that the Court must decide such cases ?impartially..., according to the rules of the Constitution,? and that such review will help ensure adherence to the constitutional principle that federal ?jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.?

Finally, I am skeptical of claims that state legislative selection of senators was the main force constraining federal power before the Seventeenth Amendment was enacted in 1913. Limits on federal power were underpinned by a much broader political consensus that often included the House of Representatives, and such presidents as Thomas Jefferson, Andrew Jackson, and Grover Cleveland. In fact, it is far from clear that the 19th century Senate was on average more supportive of limits on federal power than the House of Representatives, the White House, and the Supreme Court. To the extent that it was, the cause might well have been the overrpresentation of the South rather than the lack of direct popular election.

In sum, the selection of senators by state legislators was not the only or even the principal structural protection for federalism under the original Constitution, or during the 125 years from 1787 to 1913. Repealing the 17th Amendment today probably would do little to buttress limits on federal power.

Full post as published by The Volokh Conspiracy on November 02, 2010 (boomark / email).