The Senate Clause

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

—Martin Gold

Introduction

Under the Articles of Confederation, the unicameral legislature had four distinct features: Delegates from each state voted as a unit, delegates rotated over time, delegates could be recalled by the states, and each state had equal representation. The Framers of the Constitution chose a different path. There would be a bicameral legislature. The House of Representatives would have proportional representation, and the Senate would have equal representation. Moreover, Senators would vote individually and not as a unit. State legislatures would have the power to elect Senators but not to recall them.

George Haynes, a leading Senate historian, observed that the House “would be elected immediately by the people and would represent them and their personal rights individually,” while “the Senate would be elected by state legislatures and represent the States in their political capacity.” In this way, Haynes wrote, “each [house] would form a proper and independent check upon the other and the legislative power would be advantageously balanced.”¹ The Seventeenth Amendment, ratified in 1913, provided for the direct election of Senators.

History Before 1787

The Articles of Confederation Congress was a unicameral legislature that had four prominent features: unit voting, rotation, recall, and equal representation. Although the Articles permitted states to send delegations of no fewer than two but no more than seven persons, the size of the delegation was irrelevant to a state’s strength in Congress.² Each delegation participated as a unit, and each state had one vote.³ However, unit voting created problems when delegates were absent and when delegations were divided. Delegates were appointed annually in a manner the state directed.⁴

The Articles observed the principle of rotation in office, so no delegate could serve more than three years out of every six.⁵ In addition, delegates were subject to recall at any time, although none were ever recalled.⁶ In creating a federal Congress, delegates would abandon unit voting, rotation, and recall but, after immense struggle, would retain equal representation for the Senate.

The Constitutional Convention

Early in the proceedings of the Constitutional Convention, delegates considered two major plans for the organization of Congress. The Virginia Plan called for a bicameral legislature with both chambers subject to proportional representation: that is, the number of representatives would be determined based on a state’s population.⁷ By contrast, the New Jersey Plan proposed a unicameral legislature in which states were represented equally regardless of their population.⁸ On June 19, by a vote of seven states to three with one divided, the Convention supported the Virginia Plan.⁹

Under Convention rules, any question voted upon could later be reconsidered.¹⁰ One such question was how the Senate would be constituted. Delegates initially approved proportionality for both chambers, but upon reconsideration, they deadlocked on whether the Senate should be proportional.

On June 25, by a vote of nine states to two, delegates determined that state legislatures should elect Senators.¹¹ Thus, the Framers gave state governments a seat at the federal table. While the people would be directly represented in the House of Representatives, states would be represented in the Senate. John Dickinson of Delaware, who proposed the motion, “wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible.” Dickinson “thought such characters more likely to be selected by the State Legislatures than in any other mode.”¹²

One of the most divisive issues at the Constitutional Convention concerned whether the Senate would be constructed proportional to populations or be based on equality between states. Smaller states were determined to achieve the latter. Accustomed to equality of representation in the Articles of Confederation Congress and in the Constitutional Convention itself, these states feared being dominated in a proportional Congress. They could accept proportionality in the House but threatened not to confederate if the Convention imposed such arrangements on them in the Senate.

On June 11, Roger Sherman of Connecticut moved that every state should have one vote in the Senate. “Everything he said depended on this. The smaller states would never agree to the plan on any other principle than equality of suffrage in this branch.”¹³ Under the proportional plan, delegates discussed an arrangement in which the number of Senators would range from one to five, leaving a total of thirty-six members.¹⁴

On July 2, to break the impasse, the Convention appointed a committee composed of one representative from each of the 11 states then in attendance.¹⁵ On July 5, the committee reported a compromise that provided for equality of representation in the Senate.¹⁶ It is known as the Great Compromise or the Connecticut Compromise, because two of the strongest advocates of equality, Roger Sherman and Oliver Ellsworth, represented Connecticut in the Convention. Sherman had originally proposed such an arrangement on June 11, but the Convention rejected it several times before acting on the committee report in July.

This result dismayed James Madison, an advocate of the Virginia Plan. In opposition, he contended that the minority could impose policies on the majority and extort outcomes by making its assent conditional on other measures. Moreover, he predicted, such evils would be compounded with the addition of new, lightly populated states.¹⁷

Such arguments did not persuade the Convention. On July 16, 1787, it agreed to the committee’s recommendation.¹⁸ The vote was five states in favor, four opposed, and one deadlocked.¹⁹ The five states in favor were Connecticut, New Jersey, Delaware, Maryland, and North Carolina. The four in opposition were Pennsylvania, Virginia, South Carolina, and Georgia. Massachusetts was divided, and New York, New Hampshire, and Rhode Island were not present.²⁰ The small states prevailed because their intense commitment on the issue made their walkout threats credible.²¹

The Convention would resolve several other issues regarding the upper House. First, the delegates agreed without dissent that every state would have two Senators so that the first Senate would have twenty-six members.²² Second, delegates wanted the Senate to bring stability to the federal Congress, so they gave Senators six-year terms, three times as long as those for members of the House.²³ In so doing, the delegates followed the general example of five states that granted members of their upper chambers longer terms than they granted those of their lower chambers.²⁴ Third, to enhance the independence of the Senate, the delegates omitted the power to recall members of Congress and provided that Senators would be paid from the federal treasury and not by the states.²⁵ As a result, the Constitution preserved the stability of the six-year term, which the states could not cut short. Fourth, through staggered terms, delegates provided for the possible replacement of one-third of the Senate every two years while maintaining stability.²⁶ However, unlike in the Articles of Confederation, they did not mandate rotation in office. Fifth, the two Senators from each state would vote individually, not as a unit.²⁷ For the delegates, per capita voting was not controversial. It prevented the absenteeism and deadlocked delegations that had characterized the Articles of Confederation Congress.²⁸

Ratification Debates

Large states were deeply troubled by equal representation in the Senate. As James Madison recounted in 1830, “The difficulty in reconciling the larger States to the equality of the Senate is known to have been the most threatening that was encountered in framing the Constitution.”²⁹ Yet, in Federalist No. 62, he defended the compromise. Publius recognized that “in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation.” States would be represented in the Senate as states.

Madison justified equality of representation in the Senate as “a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty.” He further defended creation of the Senate as a response to “the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” The antidote, Publius argued, was a less numerous body that would “possess great firmness and consequently ought to hold its authority by a tenure of considerable duration.”

In June 1788, Alexander Hamilton offered a similar defense of the Senate to the New York. “The main design of the Convention in forming the Senate,” he said, “was to prevent fluctuations and cabals. With this in view, they made that body small and to exist for a considerable time.”³⁰

Opponents of the Constitution cited the absence of recall power as one of its failures. Federal Farmer, a prominent Anti-Federalist, presented letters to the Pennsylvania Convention. He argued that “[t]he exercise of sovereignty does not consist of chusing masters, such as Senators would be, who, when chosen, would be beyond controul, but in the power of dismissing, impeaching, or the like, those to whom authority is delegated.”³¹

Luther Martin of Maryland was a delegate to the Constitutional Convention but dissented from the Constitution. He complained that “for six years the senators are rendered totally and absolutely independent of their States, of whom they ought to be representatives, without any bind or tie between them.” Martin warned that Senators “may join in measures ruinous and destructive to their States, even such as should totally annihilate their State governments, and their States cannot recall them nor exercise any controul over them.”³²

Ultimately, New York, Rhode Island, and Pennsylvania futilely recommended that Congress pass a constitutional amendment to permit the recall of Senators.³³ However, such an amendment was never even proposed by the First Congress. Until early in the twentieth century, some state legislatures would instruct Senators on how to vote on federal legislation.³⁴ The instructions were not binding, and the long Senate terms, not subject to curtailment by recall, diminished the likelihood of Senators being held accountable for disregarding those instructions.

Opponents of the Constitution also criticized the lack of rotation among Senators. The Anti-Federalists claimed the Senate would create a permanent political elite. In the New York convention, leading Anti-Federalist Melancton Smith declared that “[a]s the clause now stands, there is no doubt that the senators will hold their office perpetually; and in this situation, they may of necessity lose their dependence and attachment to the people.”³⁵ Smith warned that this design “is certainly inconsistent with the established principles of republicanism that the Senate should be a fixed and unchangeable body of men.” Along with other anti-Federalists, Smith favored a constitutional amendment requiring rotation.³⁶ However, the First Congress did not propose such an amendment.

There was not much opposition to allowing each Senator to vote individually. Charles Cotesworth Pinckney, who attended the Federal Convention, defended this practice to the South Carolina House of Representatives. “Now that the Senators vote individually, and not by States,” he argued, “each state will be anxious to keep a full representation in the Senate; and the Senate now has the power to compel attendance of its own members.” Pinckney saw a pragmatic benefit from this plan: “We shall thus have no delay, and business will be conducted in a fuller representation of the States than it hitherto has been.”³⁷

Direct Election of Senators

Election by state legislatures proved to be problematic. Deadlocks between two chambers of some legislatures delayed or prevented the election of Senators. Between 1891 and 1905, there were 45 deadlocks in 20 states.³⁸ And even when these impediments did not exist, there were periodic allegations of bribery and vote-buying for Senate elections.³⁹

In 1893, 1894, 1898, 1900, and 1902, the House of Representatives passed proposals to amend the Constitution so that Senators could be elected by popular vote.⁴⁰ All of these proposals died in the Senate.⁴¹

Outside the Senate, agitation for reform became pronounced. By the end of the nineteenth century, thirty-one states had petitioned Congress to submit an amendment, in several cases after overwhelming public referenda.⁴² By 1912, twenty-nine states had senatorial primaries, attempting to bind their legislatures to elect the winner of the popular vote.

Concerned that the Senate would not act on an amendment, states began to agitate for Congress to call a constitutional convention. By 1904, nineteen states had petitioned Congress for that purpose.⁴³ On May 13, 1912, Congress passed a direct election amendment, which was approved by a sufficient number of states by April 13, 1913.⁴⁴ On May 31, 1913, Secretary of State William Jennings Bryan issued a notification that the Seventeenth Amendment to the Constitution had been ratified; the people, not state legislatures, were now directly responsible for electing Senators.⁴⁵ The Seventeenth Amendment is discussed in Essay No. 203.

1. George Haynes, The Election of Senators 12 (1906). ↩︎
2. Articles of Confederation, arts. V, §§ 2, 4. ↩︎
3. Id. at §§3, 4. ↩︎
4. Id. at § 1. ↩︎
5. Id. at § 2. ↩︎
6. Id. at § 1; Timothy Zick, The Consent of the Governed: Recall of United States Senators, 103 Dickinson L. Rev. 567, 571 (1999). ↩︎
7. 1 Farrand’s 20. ↩︎
8. 3 Farrand’s 613. ↩︎
9. 1 Farrand’s 322. ↩︎
10. Id. at 9–10. ↩︎
11. Id. at 395. ↩︎
12. Id. at 150; Elaine K. Swift, The Making of an American Senate 11 (2002). ↩︎
13. Id. at 201. ↩︎
14. 2 Farrand’s 5–11. ↩︎
15. Id. at 519–20. ↩︎
16. Id. at 526. ↩︎
17. Id. at 9. ↩︎
18. Id. at 15. ↩︎
19. Id. ↩︎
20. Id. ↩︎
21. Michael J. Klarman, The Framers’ Coup 201 (2016). ↩︎
22. 2 Farrand’s 94. ↩︎
23. 1 Farrand’s 418. ↩︎
24. Federalist No. 39 (Madison); 2 Story’s Commentaries § 718. ↩︎
25. 1 Farrand’s 427–28. ↩︎
26. Id. at 418. ↩︎
27. 2 Farrand’s 179, 234. ↩︎
28. Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment 350 (1997). ↩︎
29. James Madison to James Hillhouse, 17 May 1830, https://perma.cc/YU4H-6VB9. ↩︎
30. New York Ratifying Convention Remarks (Francis Childs’s Version), [24 June 1788], https://perma.cc/C8LZ-FSUM. ↩︎
31. Storing 3.14.6. ↩︎
32. Id. at 2.4.42. ↩︎
33. Bybee, supra at 529. ↩︎
34. Id. at 316–28. ↩︎
35. Storing 6.12.27. ↩︎
36. Id. at 6.12.27–.28. ↩︎
37. 4 Elliot’s 277–86. ↩︎
38. 1 Robert C. Byrd, The Senate 1789–1989: Addresses on the History of the United States Senate 393 (1988). ↩︎
39. Haynes, supra at 59–63. ↩︎
40. Id. at 97. ↩︎
41. Byrd, supra at 398; Lindsay Rogers, The American Senate 113 (1926). ↩︎
42. Haynes, supra at 98. ↩︎
43. Id. at 108–09. ↩︎
44. Byrd, supra at 402. ↩︎
45. Id. at 403. ↩︎