To Avoid Debacles Like Roy Moore, Repeal The 17th Amendment

 By John Daniel Davidson

With less than a month to go before Alabama’s special election to fill the Senate seat left vacant by Attorney General Jeff Sessions, Republican candidate Roy Moore refuses to quit the race amid fallout over credible allegations of sexual assault dating from the 1970s, including that he initiated a sexual encounter with a 14-year-old girl when he was 32.

Some polls still show Moore leading his Democratic opponent Doug Jones, while a poll conducted by the National Republican Senate Committee earlier this week shows Moore trailing Jones by 12 points.

Senate Republicans are calling on Moore to withdraw from the race, saying he’s “unfit to serve” and threatening not to seat him if he’s elected, but Moore isn’t backing down. His campaign has called the allegations a politically motivated “witch hunt” and Moore has vowed to stay in the race, which means there’s still a chance the people of Alabama might elect him to the U.S. Senate.

All of this could have been avoided if we’d just repealed the Seventeenth Amendment.

Good Reasons for Allowing States to Elect Senators

The Seventeenth Amendment says U.S. senators must be elected by popular vote, instead of by state legislatures. Adopted in 1913 during the height of the Progressive Era, the amendment supersedes the provisions in the Constitution that required senators to be elected by state legislatures.

The idea that state legislatures would elect senators might seem odd nowadays, but creating some distance between the popular vote and the election of senators was crucial to the Founders’ grand design for the republic. The original idea, spelled out in The Federalist Papers, was that the people would be represented in the House of Representatives and the states would be represented in the Senate. Seats in the House were therefore apportioned according to population while every state, no matter how large its populace, got two seats in the Senate.

The larger concept behind this difference was that Congress needed to be both national and federal in order to reflect not just the sovereignty of the people but also the sovereignty of the states against the federal government. In Federalist No. 62, James Madison explained that Congress shouldn’t pass laws “without the concurrence, first, of a majority of the people, and then of a majority of the states.”

Besides tempering the passions of the electorate, empowering state legislatures to elect senators was meant to protect the states from the encroachments of the federal government. The tension was (and still is) between the dual sovereignty of the national government and the states. Writing in Federalist No. 39, Madison explains that while the House of Representatives is national because it “will derive its powers from the people of America,” the Senate “will derive its powers from the States, as political and coequal societies.” We’ve lost much of this today, but the jurisdiction of the federal government, wrote Madison, “extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

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