John Yoo argues that the 17th Amendment — allowing for the popular election of senators — undermined federalism but that trying to repeal it would be futile. I’m inclined to agree on both counts. It would take another constitutional amendment to repeal the 17th, and those aren’t easy to ratify. And while state legislatures choosing senators was an important check on the federal government, I’m not sure that argument would fly in today’s democratic political culture.
But I’d also go one step further: States are much more addicted to federal funds than they were before the 17th Amendment, making today’s state legislators less likely to be protectors of federalism. This will especially be the case as states turn to Washington to bail out their health care and pension costs or balance their budgets. I’m not sure that the problems that the 17th Amendment’s ratification exacerbated can be solved or significantly mitigated by its repeal.
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