Although one of the most debated issues at the Constitutional Convention was the apportionment of United States Senators to the States, the principles that defined the role of the Senator were understood and agreed upon. From the text of Article 1 Section 3, prior to the ratification of the 17th Amendment, we understand that the role of Senator is designed to be a check on the Federal government from the State in a sole effort by the State to maintain it’s Constitutional sovereignty. Here is the first part of Article 1 Section 3 prior to the ratification of the 17th amendment:

“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.”

James Madison, the Father of the Constitution, explains the purpose of having US Senators and the reason they were originally appointed by the State legislatures. Madison believed that in order for the States to protect the freedom of their citizens, they must be active participants in the affairs of the Federal government. Here are Madison’s words:

“Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”



I like how Madison started out by saying "Whenever power may be necessary for the national government..." because he is implying that the national government does not always need power. The state legislatures, he says, must have a means of defending themselves against the encroachments by the federal legislature and the best way to do that is to give the states a mechanical function within the federal legislature. That is the purpose of the Uited States Senate- to jealously guard the jurisdiction of the states.  So now, in those cases  in which the federal government does need to exercise power, it can only do it with the advise and the consent of the states; if the states approve, the senate will approve.

According to Article 1 Section 3, prior to the ratification of the 17th amendment, United States Senators were chosen by the Legislatures of the States; this provided the States with the appropriate means of defense. This method of establishing Senators by appointment would do a tremendous service for protecting the sovereignty of the individual States in more than one way. First of all, the office of United States Senator would be an appointed position made by elected state legislators, thus encouraging the Senator to follow the orders of the state if for nothing more than the sake of job security.  In Federalist No. 62, James Madison said that select appointments were recommended for the purpose of:

“Giving to the state governments such an agency in the formation of the federal government, as must secure the authority of the former, and may form a convenient link between the two systems.”

By allowing the States to appoint their own Senators, the Individual State would then have the necessary means of defending itself against the encroachments of the national government. The Constitution provides other resources for the protection of State sovereignty, but as Madison pointed out, what better means can be provided to the protection of the States then by making them an actual mechanical part of the workings of the national government; establishing Senators whose duty is bound to their State and not the nation as a whole. An appointed Senator would be given the office by the elected State legislatures and sent to the Federal government in Washington DC to be a check on the Federal government; duty bound to represent and protect the sovereignty of his State  from federal encroachments.

Another reason behind the appointment procedure is so that if the Senator was not representing the will and the sovereignty of the State, then the State legislature could convene and remove him from office and appoint another in his place to serve a term of six years. In other words, although US Senators served six year terms, they could be “hired and fired” if necessary in order for each State to maintain its individual sovereignty. I have heard Americans voice their disappointment time and again when their Senator ignores them; refusing to hear them or represent them in Washington DC. The only solution anyone ever has to this predicament is to wait until the six year term of the wayward Senator expires and then vote him out of office. Our Founding Fathers had a better idea however when they drafted the Constitution. Before the 17th Amendment, US Senators would routinely meet with State legislatures in order to discuss the goings on of the federal government and the states positions on the various issues. The Senator was in a position where he must act on behalf of his State alone and not the influence of lobbyists, friends, the President or even a political party; he almost had to be a statesman or else he may lose his job.

Here is something else to think about, prior to the ratification of the 17th amendment, US Senators never had to raise millions of dollars in order to campaign for an election. This eliminated all kinds of problems that pertain to temptation, corruption, making campaign promises that they never intend to keep as well as all the baggage that goes into becoming and staying popular. The role of the United States Senator is to protect the sovereignty of his individual State so that the State legislatures can operate freely based on the will of the people that elected them. This is the only way to maintain the principle of governing with the consent of the governed, and our Constitution is structured to ensure citizen consent from the federal level all the way down to the State and even local levels. Considering the original process by which US Senators were seated, I think is it fair to assume that state legislatures would be seen as more important than they are given credit for today and thereby encourage more government participation at the State level.

With the ratification of the 17th amendment, we have allowed the duty of United States Senators to blow with the political wind away from the States and into whatever means of security they think will keep them in office. The 17th Amendment to the United States Constitution was ratified by the States on April 8th, 1913. The first sentence reads as follows:

“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.”

When the States ratified the 17th amendment to the US Constitution, a fundamental change took place that was for the most part completely unintended. To put it simply, the unfortunate change was the turning of Senators from statesman into politicians. Instead of being duty bound to the sill of the state government, US Senators are now duty bound to the party, the popular ideas or even emotional trends. The problems with the 17th amendment have even been recognized by US Senators including one from Georgia, former US Senator Zell Miller, who stated from the floor of the Senate:

“Direct elections of Senators…allowed Washington’s special interest to call the shots, whether it is filling judicial vacancies, passing laws, or issuing regulations.”

With the ratification of the 17th amendment, the American people have thrown the United States Senator from off the principled pedestal of statesmanship and into the arena of power politics. Although the process by which we place our Senators has changed, one thing has not changed- why we have them. 

In my humble opinion, it does not matter so much how our senators are chosen near as much as the character of the senators we choose; the job description of a US Senator has not been amended or repealed, they are still there to protect the sovereignty of the states; we just need to make sure they understand that.


Copyright 2012 by Paul Curtman, Don't Tread On Me! The Constitution and State Sovereignty.

My stand for personal freedom is rooted in my belief that the proper role of government is written into the laws of nature. We are all created equal and at the moment we have life we have a natural right to continue living and enjoy the other natural liberties that we were given at the instant of life but we need security and protection for our rights. As stated in the Declaration of Independence, "and that to secure these rights, governments are instituted among men."

For example, my thoughts are inherent, they are a part of me- my tongue is a natural part of me that allows me to articulate my thoughts and therefore my freedom of speech is just as NATURAL as my NATURAL ability to speak. The laws of nature say that I have a natural right to speak freely and the 1st amendment to the Constitution protects that natural right. Many of the problems with our society today come from the idea that government can create "rights." The laws of nature carry more authority than the laws of government so when the government tries to extend "natural" rights beyond the parameter of natural law unintended yet predictable consequences might very well begin to happen. Think about this: No one has a "right" to your hard earned money but the welfare state says that SOME people do have a "right" to your money. Practices like this in-turn will only lead to bigger government as they attempt to "solve" all the problems that it often responsible for creating in the first place.

I firmly believe that it is not the role of government to tell you who you can and cannot have a relationship with, I think everyone can agree about that, but I personally believe that marriage, as a religious institution, is between a man and a woman. I also think that it might not be a good idea for government to start defining religious institutions like marriage, especially when the MIAC Report and the DHS identify Christians as possible "militia influence extremist" etc.  With this kind of rhetoric coming from an increasingly authoritarian central government I wonder how long it will be until they define what a "real" church is or what a "real" Christian is, all for the sake of national security of course. 

Marriage, as an institution, is the jurisdiction of God. If homosexual couples are wanting to enjoy the same rights currently reserved for married heterosexual couples, hospital visitation and tax benefits etc., there are ways to do that without the government defining the religious institution of marriage. Also, just for full disclosure, I'm not a fan of the idea that the government requires you to have a license before getting married. Is getting married so dangerous that we have to have a license and government approval and oversight first? George Washington and Abraham Lincoln never had a marriage but now everyone else does. It is just another mandate from big government that probably should have never been part of our nations history. 

The state should not be meddling with religious institutions of faith nor defining them one way or the other. This is what Thomas Jefferson was referring to when he was trying to convey to the Baptist of Danbury, CT that there was a "wall of separation between church and state" that would keep them free from government intrusiveness. This is something our founders warned us to be careful of. If the people decide something on this issue by way of Constitutional amendment, that would be different in the sense that we the people directly embrace the law instead of having it implemented by politicians, or worse, unelected members of the court. 

The writings of the founders indicate that separation of church and state was never intended to prevent religion from having an influence on the government, but rather it was intended to prevent the state from mandating religious practice or otherwise interfering with the doctrine or administration of churches etc. We would do well to remember that.