The Senate and the Loss of Mixed Government

Introduction

Most serious writing advocating repeal of the 17th Amendment was published more than a decade ago. At the time, libertarian and constitutionalist circles showed modest interest in restoring Senate selection to state legislatures. That discussion never matured into a sustained reform effort, and it eventually faded.

The reason is not difficult to identify. Critics of the 17th Amendment have persuasively argued that direct election has nationalized the Senate and weakened federalism. What they have not convincingly shown is that repeal alone would solve the problems that led to the amendment’s adoption in 1913. Those problems included legislative deadlock, prolonged vacancies, and corruption in the selection process. Opponents of repeal continue to cite these failures as decisive objections, and they remain largely unanswered.

As a result, the debate has settled into a false choice. Defenders of the status quo accept a Senate that functions as a second House of Representatives, driven by national parties, donors, and media attention. Advocates of repeal argue for a return to legislative selection without fully explaining how the defects of the earlier system would be avoided. Neither position offers a structural solution capable of restoring the Senate’s original constitutional role.

This impasse explains why repeal efforts have stalled. The case against the 17th Amendment has been made repeatedly, but it has not displaced the arguments used to justify it in the first place. Any serious reform must therefore move beyond repeal and address the institutional design of the Senate itself.

Revisiting the 17th Amendment remains urgent. Federal authority has continued to centralize since its adoption, and state governments increasingly function as administrative arms of national policy. If the Senate is to serve as a meaningful check within the constitutional system, it must once again represent a distinct source of political authority. That requires not restoration alone, but redesign.

The question is not why this debate once mattered, but why it matters now. We are witnessing the devolution of the Senate before our eyes. Senators increasingly function as national political actors, responsive to party leadership, donors, and media incentives rather than to state governments as institutions. This is not an accident of personality or politics. It is the predictable result of a structural change.

The Senate and Mixed Government

The case against the 17th Amendment begins not with nostalgia, but with constitutional theory. The Founders designed the American republic as a mixed government. Liberty would be preserved not by elections alone, but by a collision of authorities drawn from different sources. Bicameralism was central to this design. The House and the Senate were meant to represent different interests, answer to different constituencies, and operate on different incentives. Only through this separation could each restrain the other.

The House of Representatives was built to reflect popular opinion. Its members were elected directly by the people, served short terms, and were expected to respond quickly to shifts in public sentiment. The Senate was designed to do the opposite. Senators were chosen by state legislatures to represent the states as political bodies within the federal system. This was not an accident of convenience. It was a deliberate attempt to anchor federal power in the institutional interests of the states themselves.

During the Constitutional Convention, several delegates warned that drawing both chambers from the same source would collapse this balance. Elbridge Gerry outlined the available options with clarity. Selection by the House would create dependency. Selection by the executive risked consolidating authority. Direct election would leave no effective check against majority impulses. If both chambers answered to the same electorate, they would reflect the same passions and interests, and the safeguards of bicameralism would be lost.

John Dickinson made the positive case for legislative selection. He argued that the Senate should arise from state governments in order to create a collision of authorities between state and national power. This arrangement would bind the federal government to the continued agency of the states, preserving federalism as a living structure rather than a parchment promise. Dickinson emphasized that the Senate was to be a point of connection, not separation, between the states and the national government.

This structure gave the Senate a distinct role. It was not merely a smaller House with longer terms. It was a chamber rooted in institutional representation rather than mass democracy. Senators had incentives to defend state prerogatives, resist national overreach, and slow legislation that threatened the balance between local and centralized authority. The result was a genuine check, not only on the House, but on the growth of federal power itself.

The 17th Amendment dismantled this arrangement. By shifting Senate elections to the same popular electorate that selects the House, it erased the institutional distinction between the two chambers. The Senate became nationalized. Its members now compete for party leadership, donor coalitions, and national media attention rather than accountability to state governments. The chamber still moves more slowly than the House, but it no longer represents a different source of authority.

Modern constitutional analysis has acknowledged this shift. The National Constitution Center notes that the amendment increased similarity between House and Senate constituencies and altered the original function of bicameralism. What was once a structural restraint on centralized power became a second venue for the same political pressures.

This loss helps explain why federal mandates now so easily override state priorities. When both chambers draw legitimacy from the same mass electorate, there is little incentive to defend the institutional role of the states. Federalism becomes rhetorical rather than operational.

For these reasons, simple repeal of the 17th Amendment is insufficient. The original problem was not merely who voted for senators, but how institutional diversity was preserved within the federal legislature. Any serious reform must restore that diversity. The Senate must once again arise from a different foundation than the House. Without that distinction, bicameralism cannot perform its intended function as a vital pillar of limited government.

A Proposed Amendment

The Senate of the United States shall be composed of three Senators from each state, chosen by the legislature thereof, for terms of six years, with a power reserved to a two-thirds majority of each legislature to recall its Senators, or any of them.

Except in trials of impeachment, each state shall cast one vote in the Senate, to be determined by the majority of its Senators. In the event the Senators fail to agree, the vote of that state shall not be counted. In trials of impeachment, each Senator shall have one vote.

Immediately after they shall be assembled in consequence of the first election, they shall be divided equally into three classes, each class composed of one member of each state delegation so that one third may be chosen every second year; and if vacancies happen by resignation or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.

Conclusion institutions designed to restrain power

The 17th Amendment did more than alter the method of Senate selection. It collapsed the Senate into the same political universe as the House of Representatives. By drawing both chambers from the same source of authority, it weakened bicameralism, eroded mixed government, and removed an essential institutional check on centralization, a danger long recognized in classical theories of divided power.

Repeal alone cannot repair this damage. It would restore a flawed mechanism without addressing the deeper problem of how states are represented within the national legislature. A successful reform must restore the Senate’s federal character while correcting the defects that once justified reform in the first place.

The proposed amendment does exactly that. By restoring legislative selection, treating each state delegation as a unit, and requiring unified state voting, it reestablishes the Senate as a council of governments rather than a national popular assembly. Treating each state delegation as a single voting unit restores the Senate as a body of governments rather than individuals, while preserving internal deliberation within each state delegation. Staggered terms ensure that changes in state legislative composition are reflected gradually, allowing state interests to evolve over time without producing abrupt reversals in federal policy. Accountability is returned to state governments without recreating the paralysis of the late nineteenth century.

This structure also produces broader institutional benefits. It reduces the nationalization of Senate offices, weakens the incentive to politicize judicial appointments, and reinforces the separation of powers by reintroducing meaningful institutional conflict into federal lawmaking. These outcomes are not incidental. They are the direct result of restoring distinct sources of authority within the constitutional framework.

The choice, then, is not between repeal and retention. It is between continuing a system that has hollowed out federalism and adopting a reform that restores the Senate’s original function by fully realizing its role within a mixed and durable constitutional order. A constitutional republic requires more than popular elections. It requires institutions designed to restrain power by dividing it and by drawing authority from distinct political sources. This proposal offers a path toward restoring that balance.