11/02/2010 07:43 pm ET | Updated May 25, 2011

Dysfunctional Democracy: U.S. Senate Will Now Have Zero African Americans

Prognosticators had long ago called the outcome of Tuesday's elections: A tea-party-infused mass rejection of the Democrats. There is, however, one outcome that was even more certain and that should be considered more troubling for our democracy than the ordinary midterm shifts of voters' partisan preferences. With the departure of Roland Burris, who was appointed to President Obama's old Senate seat, and with the long-shot and underfunded Senate bids by African Americans in South Carolina, Georgia and Florida having failed, the United States Senate has no African Americans in the new Congress that convenes in January 2011.

There is an ironic coincidence of timing in the rise of the tea party and the absence of any blacks in the U.S. Senate. One of the tea party movement's major proposals calls for the repeal of the 17th Amendment, a constitutional provision whose enactment was very much entangled with the question of whether blacks would continue to have the right to vote granted them by the 15th Amendment.

Prior to the 17th Amendment's giving citizens the right to directly elect senators, senators were appointed by state legislatures. The typical rationale of tea partiers for repeal of the 17th Amendment is that the direct election of senators has too severely diminished "states' rights." "States' rights" is a politically- and culturally-loaded term, but as applied to the U.S. Senate, it is also a greatly misunderstood concept. The constitutional framers' discussions at the 1787 Philadelphia Convention regarding an upper house reveal a clear, even if not uniform, vision of the Senate as a legislative organ that would represent the will of the people rather than mere abstract states' rights. While rejecting the Pennsylvania delegation's proposal for senators to be directly elected, the prevailing Federalists ultimately embraced the arguments of that delegation's leader, James Wilson, who maintained that "sovereignty remains and flourishes with the people.... It resides in the people, as the fountain of government."

Although the Senate had always represented the sovereignty of people rather than states, a racially regressive notion of states' rights lay at the heart of the debates on the 17th Amendment. During the 61st and 62nd Congresses, Southern Democrats attempted to attach a "race rider"' to the direct elections proposal which would have deprived the federal government of its ability to enforce blacks' right to vote in U.S. Senate elections. These Democrats did not mask their intent. For instance, Senator Davis of Georgia complained bitterly that "[f]ew [Negroes] care to vote and none ask to hold office, except when stirred by this same disturbing element of the Republican Party, usually imported from the North or East. . . ."

The 62nd Congress preserved blacks' right to vote by rejecting the race rider. But today, because states reflexively elect their senators on a statewide basis when nothing in the language or history of the 17th Amendment requires them to do so, black votes are diluted, and blacks are routinely unable to elect a black to the Senate. Creating two Senate districts per state would cure this harm. For instance, in Georgia, a state that is more than 25% black, African American labor Commissioner Michael Thurmond would certainly have had a better shot at winning a U.S. Senate bid had the state been divided into two districts. One such district could have been drawn to reflect the Democratic Party's strength in the state, which in turn would have reflected the disproportionate representation of blacks in the Democratic Party.

The tea party's advocacy for repeal of the 17th Amendment obviously isn't tantamount to repealing African Americans' right to vote. Indeed, given the increased numbers and influence of racial minorities in state legislatures, legislative appointment may remedy the embarrassing absence of a black senator that we will be left with after today. But the history of the 17th Amendment should caution tea partiers against loose invocation of states' rights talk. It should also cause our nation to reflect on the dysfunction of a democracy that cannot elect even a single African American to what many view as the world's most powerful deliberative body.

Terry Smith, a Distinguished Research Professor of Law at DePaul College of Law, has published extensively on the history of the Seventeenth Amendment.