The Senatorial Classes and Vacancies Clause

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

—Martin Gold

Introduction

Members of the House of Representatives serve two-year terms, and members of the Senate serve six-year terms. Every two years, new members are elected to the House, and new Senators are elected to the Senate. As a result, every two years, there is a new House composed entirely of newly elected members.

The Senate, however, serves as a continuing body. Every two years, one-third of its membership will be newly elected, and two-thirds will return. As Massachusetts Senator Henry Cabot Lodge observed, “Administrations come and go, Houses assemble and disperse, Senators change, but the Senate is always there in the Capitol, and always organized, with an existence unbroken since 1789. . . .”¹

The Senatorial Vacancies Clause also provided that state executives could “make temporary Appointments” while the state legislature was in recess. When they convened, the state legislatures could make formal appointments. The process of filling vacancies was altered by the Seventeenth Amendment, which provided for the direct election of Senators.

The Constitutional Convention: Dividing the Class

During the Constitutional Convention, the delegates disagreed about the appropriate length of Senate terms. Different proposals would have specified four, six, seven, and even nine years. The delegates debated how to divide the Senate into multiple classes. With a nine-year term, for example, one of three classes would stand for election every third year; with a four-year term, one of four classes would stand for election annually.

The seven-year term was approved on June 12, 1787, but was later rejected as being impractical to divide. Ultimately, on June 26, by a vote of seven states to four, the delegates settled on a six-year term.² The Senate would be divided into three classes, and one-third of the Senators would stand for election every two years. Under this design, a quorum of the Senate—a simple majority—would remain in office at all times. The Senate would endure as a continuing body. By contrast, every member of the House of Representatives must stand for election every two years. Though Representatives can be re-elected, each new House is a distinct body.

The Framers also addressed a problem that the first Senate would face: How would the initial batch of Senators be sorted into three classes? The text provides that these Senators should be “divided as equally as may be into three Classes.” The Senatorial Classes Clause modified the terms for members of the first Senate: One-third would serve a two-year term, one-third would serve a four-year term, and one-third would serve the full six-year term.

The Constitutional Convention: Senate Vacancies

During the Convention, delegates determined that Senators would be elected by state legislatures. This raised a foreseeable issue: What would happen in the event of Senate vacancies? Members of the House were elected directly by the people, and if vacancies arose, the state executive authority would “issue Writs of Election to fill such Vacancies.” (See Essay No. 12.) In other words, a special election would be scheduled to fill the former member’s unexpired term. If a Senate vacancy arose, legislators could fill the vacancy while the legislature was in session, and that appointment would last for the unexpired term of the former Senator. But what if the state legislature was not in session? Would the seat remain vacant until the state legislature convened, or could the state executive make a temporary appointment?

On August 6, the Committee of Detail proposed that state Executives be able to fill such vacancies until the next meeting of the state legislature. The draft stated that “[v]acancies may be supplied by the Executive until the next meeting of the Legislature.” James Wilson of Pennsylvania objected to this proposal.³ At the time, Wilson observed, most Executives were elected by state legislatures and not by popular vote, so temporary gubernatorial appointments would not be accountable to the people. He also believed that such appointments would be unnecessary because legislatures convened annually, and vacancies would not be of extended duration.

Wilson, however, stood alone. Edmund Randolph of Virginia argued that because the Senate would be smaller than the House, even short vacancies could be consequential. Randolph contended that a temporary appointment power would be needed to prevent “chasms” in the Senate’s membership. Hugh Williamson of North Carolina proposed that state legislatures should have the discretion to deny an Executive the power to fill vacancies. On August 9, delegates voted to reject Wilson’s amendment to strike the provision for Executive appointment by a vote of eight to one with one state divided.⁴ Delegates also rejected Williamson’s proposal by a vote of four to six.⁵

After these votes, doubts remained about the Committee of Detail’s proposal. James Madison of Virginia offered an amendment to clarify what would happen if Senators resigned or individuals refused election to a Senate seat. Madison’s proposal read, “Vacancies happening by refusals to accept, resignations, or otherwise may be supplied by the Legislature of the State in the representation of which such vacancies shall happen, or by the Executive thereof until the next meeting of the Legislature.” Gouverneur Morris of New York supported Madison’s amendment, noting that the Committee of Detail’s draft barred Senators from being appointed to certain federal positions during the time for which they had been elected and for another year thereafter. As a result, Morris explained, state legislatures could effectively disqualify persons from federal service by electing them to the Senate against their will.⁶

Madison’s amendment passed without opposition.⁷ The clause was modified into its present form in the September 12 report of the Committee of Style.⁸

Ratification Debates

In Federalist No. 62, James Madison urged the “necessity of some stable institution in the government.” The House of Representatives, like state legislatures, would be subject to frequent turnover, but the Senate would have continuity. Madison explained that “a continual change, even of good measures, is inconsistent with every rule of prudence.”

While agreeing that the Senate should be structured to provide stability, Anti-Federalist Melancton Smith from New York opposed the absence of term limits. “It is certainly inconsistent with the established principles of republicanism,” he wrote, “that the Senate should be a fixed and unchangeable body of men. There should be then some constitutional provision against this evil. A rotation I consider as the best possible mode of affecting a remedy.”⁹

Cato, another Anti-Federalist from New York, criticized the Senate under the proposed Constitution. He wrote that the Framers gave “the executive the unprecedented power of making temporary senators, in case of vacancies, by resignation or otherwise.”¹⁰ In Federalist No. 67, Alexander Hamilton defended this provision, though he charged that Cato wrote that the President of the United States (“the Executive thereof”) could fill Senate vacancies as a type of recess appointment.¹¹ Here, Hamilton did not fairly read Cato, who was referring to the power of appointment vesting in state Executives.

Early Practice

The First Congress was supposed to convene on March 4, 1789. However, primarily because of transportation difficulties, a quorum of the Senate did not assemble until April 6.

Under the Constitution, Senators had to be divided into three classes. The Senate made the division on May 15, by which time twenty of the twenty-six Senators representing the original thirteen states had assembled.¹² Names were drawn from lots with no two Senators from the same state in the same lot. Seven Senators were designated for an initial two-year term, seven were designated for an initial four-year term, and six were designated for an initial six-year term. The Senate further provided that “when Senators shall take their seats from States that have not yet appointed Senators, they shall be placed by lot in the foregoing classes, but in such manner as shall keep the classes as nearly equal as may be in numbers.”¹³

The Seventeenth Amendment

The Senatorial Vacancies Clause was altered by ratification of the Seventeenth Amendment in 1913. (See Essay Nos. 203 and 204.) Senators would now be elected by popular vote instead of by state legislatures. The Amendment also adopted Hugh Williamson’s rejected proposal from the Constitutional Convention to empower state legislatures to deny Executives the power to appoint Senators temporarily. This provision is contrary to the original Constitution, under which legislatures were not able to deny such authority to the Executives.

Judicial Precedent

The Supreme Court of the United States has not had occasion to interpret the original Senatorial Classes and Vacancies Clause.

1. Henry Cabot Lodge, The Senate, 34 Scribner’s Magazine 541, 541, 549–50 (1903). ↩︎
2. 2 Farrand’s 426. ↩︎
3. Id. at 231. ↩︎
4. Id. ↩︎
5. Id. at 232. ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Id. at 591. ↩︎
9. 22 DHRC 2015–16 ↩︎
10. Storing 2.6.37. ↩︎
11. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 439–440 (2023). ↩︎
12. 1 Annals of Cong. 16 (1789). ↩︎
13. Id. at 26. ↩︎