Current News

Zywicki in National Law Journal: 17th Amendment Unleashed Spending Power

If the 17th Amendment to the Constitution allowing election of senators had never been adopted, the Senate and Congress would be different institutions than they are today, says Professor Todd Zywicki, who was interviewed by The National Law Journal on conservatives' calls to repeal the amendment.

Prior to the amendment's adoption, senators were named by vote of state legislative bodies as originally provided for in the Constitution, acting as "ambassadors of their state governments to the federal government." Ratification of the amendment came in 1913 on the heels of the 16th Amendment giving Congress the power to tax. Zywicki maintains that in tandem, the two amendments marked a "tipping point" away from a limited federal government. "The 16th unleashed the taxing power, and the 17th unleashed the spending power," he says.

Zywicki believes that as originally envisioned, the Senate served as a significant check on the federal government.

"There has been more federal activity of all kinds" since the 17th Amendment came into being, he notes.

The 17th Amendment Under Fire, The National Law Journal, November 22, 2010. By Tony Mauro.

Excerpt:
"The long-forgotten 17th Amendment--the one that gave us direct election of senators--has suddenly moved to center stage in the new debate over constitutional first principles fostered by the Tea Party movement.

"Conservative commentators like Glenn Beck are tracing what they call the death of states' rights and the rise of overweening federal power to enactment of the amendment in 1913, because, they contend, it made senators less accountable to the states from which they are elected. 'One of the dumbest things we ever did, ' Mike Huckabee proclaimed on his radio show, and Fox News legal commentator Andrew Napolitano calls the 17th Amendment 'the only part of the Constitution that is itself unconstitutional.'

"But all that was only prelude to the prominence U.S. Supreme Court Justice Antonin Scalia gave to the 17th Amendment during a Nov. 12 appearance at Texas Tech University with Justice Stephen Breyer.

"Responding to a question about changes he would like to see in the Constitution, Scalia was quoted as saying, 'There's very little that I would change....I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously.' Scalia added, according to news accounts, 'We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century. So, don't mess with the Constitution.'"

Read the article (subscription required)