The 17th Amendment and Federalism

In recent remarks at Princeton, Justice Scalia commented in a Q&A that federalism is dead and that the culprit was the Seventeenth Amendment, which ended the election of national Senators by state legislatures. While many conservatives hold this view and some have advocated the repeal of direct Senate elections, I think this is a false claim that rests on a misunderstanding of politics and history.

Try out a simple thought experiment. The California Legislature is controlled by Democrats, thus any Senator elected by them would be a Democrat. Does anybody think that this Democrat would be more interested in federalism than Diane Feinstein and Barbara Boxer are? I doubt it. Why is that?  Because Democrats in California share the views and interests of the national party for the most part.

The contrary view rests on what might be called the "Madisonian fallacy" that was addressed years ago in Pildes and Levinson's article on "Separation of Parties, not Powers." The article stated that Madison thought Congress and the President would check each other because people elected to those positions would come to identify themselves with those institutions. In reality, though, this is not what happens. The President and members of Congress care more about party unity or resisting the other party and use the weapons of the respective branches or parts of Congress to further that end.

Similarly, the Seventeenth Amendment story about federalism rests on the idea that state legislatures or the senators elected by them will identify primarily or largely with state governments. While this may happen every so often, most of the time these representatives would care more about national party goals, at least in the modern era of ideologically polarized parties.

Furthermore, the Seventeenth Amendment didn't actually do much to protect federalism. National power increased significantly from 1791 to 1913.  (In part, this was because in many states Senators ran the political machine that elected the state legislature, not the other way around.) Likewise, there is no indication that Senators thought differently about federalism once they were elected directly by the people, if you compare, say, 1920 versus 1910.

In the end, the Seventeenth Amendment explanation for increased national power reminds me of the conversation between two old actors.  One says, "The theater isn't what it was."  The other replies, "No.  And I'll tell you something else.  It never was what it was."