The Popular Election of Senators Amendment

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

—Michael R. Dimino

Introduction

Under the original Constitution, each state’s two U.S. Senators were “chosen by the [state] Legislature.”¹ The first clause of the Seventeenth Amendment changed that system. Senators, like members of the House of Representatives, would be “elected by the people.” The amendment made the Constitution more democratic, but by eliminating the role of the state legislatures, the amendment lessened the protection that states had against measures that were harmful to their interests. The change created by the amendment was not revolutionary, however; even before its ratification, some states gave the people a substantial voice in the selection of U.S. Senators. How much the amendment democratized the Senate is debatable.

History Before Proposal

Under the Articles of Confederation, Congress was composed of delegates from each state, and each state had equal voting power. The Constitution’s “great compromise” created a bicameral Congress. Members of the House of Representatives were chosen directly by the people with seats allocated to states based on population; Senators were chosen by state legislatures with two seats allocated to each state. In Federalist No. 62, James Madison defended this method of apportionment, arguing that because the Constitution would create “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.” Few objected to the state legislatures’ power to choose Senators; as Professor Todd Zywicki has concluded, “there was near-universal support for election of Senators by state legislatures both at the Constitutional Convention and in the state ratifications.”²

Placing the choice of Senators in the state legislatures made the Senators representatives of the states as institutions; the House represented the people directly. Professor David Schleicher has observed that, whereas direct election of Representatives was a way of ensuring that popular opinion would receive a voice in Congress, election of Senators by the legislatures was viewed as “a means of insulating [the] government from popular opinion.”³ The interests of the two houses of Congress would therefore check each other.

The Senate was viewed as necessary to protect the interests of the states—and especially the small states—against the interests of the nation as a whole. George Mason of Virginia, for example, contended that “states needed the power of self-defense against the federal government”—a power that was to be found in the Senate.⁴ In a July 20, 1789, letter to Vice President John Adams, Representative Roger Sherman of Connecticut described the relationship between the Senate and the states: “The senators being eligible by the legislatures of the several states, and dependent on them for reelection, will be vigilant in supporting their rights against infringement by the legislature or executive of the United States.”⁵

The original Constitution was thus a compromise between two sides of a debate: those who wanted a national government that was responsible to the people and those who wanted a federation or confederation with a central government responsible to the constituent states. As Madison observed in Federalist No. 62, the election of Senators by state legislatures would “secure the authority” of the federal government and “form a convenient link between the two [state and federal] systems.”

By making the two houses of Congress responsible to two very different constituencies, the Framers ensured that proposed legislation would enjoy widespread support before enactment. For example, Article I, Section 7 creates a two-step process to impose taxes: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” This sequencing was deliberate. Madison explained in Federalist No. 62 that “[n]o law or resolution can . . . be passed without the concurrence first of a majority of the people, and then of a majority of the states.” He similarly contended that the risk of corruption was lessened if the lawmaking power was split between two houses constituted in different ways: “the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies.”

The benefit of a Senate, chosen distinctly from the House, was thought to be especially pronounced in its ability to provide mature reflection and stability to check the “sudden and violent passions” to which the House would be subject. In Federalist No. 63, Madison remarked that the Senate “may sometimes be necessary, as a defence to the people against their own temporary errors and delusions.”

Support for Popular Election of Senators

Despite this consensus at the Framing, the election of Senators by state legislatures soon became a matter of contention. Between 1826 and 1908, six amendments providing for the direct popular election of Senators were proposed; all six were approved by the House of Representatives, and all six failed in the Senate.⁶ With the advent of the Progressive era, the country’s desire for democracy became stronger than its desire to represent the institutional interest of states.⁷ Proponents of popular election successfully criticized selection by state legislatures as elitist, undemocratic, and subject to corruption or excessive influence from powerful interests.⁸

By the early twentieth century, most states already allowed their voters in effect to elect their Senators.⁹ A majority of those states had non-binding primary elections that would select Republican and Democratic nominees for the U.S. Senate.¹⁰ Whichever party had a majority in the state legislature would then (usually) elect the candidate that won that party’s primary election.¹¹ In 1908, Oregon had a popular election to “instruct” the state legislature whom to elect as Senator.¹² Within five years, a majority of states offered some form of popular election.¹³

Adoption of the Seventeenth Amendment

In April 1911, the House of Representatives approved a version of what would become the Seventeenth Amendment.¹⁴ This text, however, included a race rider. Under the Elections Clause, Congress can “alter [the] Regulations” adopted by state legislatures concerning the “Times, Places and Manner of holding Elections for Senators and Representatives.”¹⁵ The proposed amendment would have removed Congress’s power to regulate the election of Senators by providing that “[t]he times, places, and manner of holding elections for Senators shall be as prescribed in each State by the legislature thereof.” As a result, Congress would not have been able to interfere with Senate election laws that disenfranchised black voters.

Senator Joseph Bristow of Kansas proposed a substitute amendment without the race rider.¹⁶ Bristow referenced the “outside controversy” concerning the rider¹⁷ and argued that the Elections Clause should not “be in any way touched” or “repeal[ed]” by the Seventeenth Amendment. In June 1911, the Senate split 44 to 44 on Bristow’s substitute amendment with three Senators not voting.¹⁸ Vice President James Sherman cast the deciding vote in favor of adoption. After a year of stalemate, in May 1912, the House passed the Senate version.¹⁹ The amendment proceeded to the ratification process.

The Ratification Process

Ratification of the Seventeenth Amendment was quick, and votes in favor of ratification were overwhelming. Fifty-two of the seventy-two state legislative chambers that voted to ratify the Seventeenth Amendment did so unanimously.²⁰ In all thirty-six ratifying states combined, there were only 191 negative votes, 152 of which came from Vermont and Connecticut.²¹ In April 1913, Connecticut’s ratification pushed the total over the three-fourths threshold. On May 31, Secretary of State William Jennings Bryan announced the Seventeenth Amendment’s ratification.²²

The Seventeenth Amendment and Federalism

The Seventeenth Amendment lessened Senators’ interest in advocating for their states and for a limited national government. When Senators were elected by state legislatures, they had an incentive to protect state power.²³ When the Seventeenth Amendment made their continuance in office dependent on the people, however, Senators had less reason to push for limits on national power.²⁴ As a result, the amendment weakened one of the most important “political safeguards of federalism” built into the original Constitution.²⁵

During the debates concerning the amendment, there was not much discussion of federalism.²⁶ The omission may seem surprising, given that the indirect election of Senators was one of the guarantees of federalism that the Framers built into the original Constitution. Yet, because most states, as a practical matter, already chose their U.S. Senators by some form of popular election, the election of Senators by state legislatures was less significant for federalism than the Framers anticipated. As Professor Akhil Amar has observed, states that supported the Seventeenth Amendment “were voting to constitutionalize rules that were already largely in place or about to be in place.”²⁷

There is perhaps some irony in the effect that ratification of the Seventeenth Amendment had on federalism. Throughout the nineteenth century, state legislative races tended to focus on national issues because one of the most important responsibilities of state legislatures was to choose U.S. Senators. For example, the 1858 election for the Illinois General Assembly featured the celebrated Lincoln–Douglas debates, which focused on whether slavery should be permitted in new territories, even though the people could not vote for Lincoln or Douglas for the Senate seat. However, after the Seventeenth Amendment, state legislative races would focus on local issues. In this regard, the Seventeenth Amendment may have promoted federalism by freeing state legislative races to focus on state issues.²⁸

Judicial Precedent

The U.S. Supreme Court has addressed the Seventeenth Amendment only indirectly. For example, Garcia v. San Antonio Metropolitan Transit Authority (1985) upheld federal regulations of state employment.²⁹ The Court found that the Constitution contained no substantive prohibition on such federal regulation, and held that the states should rely on the “federal political process” rather than judicial intervention “in preserving the States’ interests.”³⁰ The Court acknowledged that “changes in the structure of the Federal Government have taken place since 1789, not the least of which has been the substitution of popular election of Senators by the adoption of the Seventeenth Amendment in 1913,” but maintained “that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the ‘States as States’ is one of process rather than one of result.”³¹

Other decisions have reflected a greater willingness to find constitutional guarantees of state autonomy. For example, Seminole Tribe v. Florida (1996), United States v. Lopez (1995), and Gregory v. Ashcroft (1991) found that there remained a strong judicial role in protecting the interests of states within our constitutional system, even after the Seventeenth Amendment weakened states’ influence in Congress.³² None of these cases, however, cited the Seventeenth Amendment.

1. Art. I, § 3, cl. 1. ↩︎
2. Todd Zywicki, Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals, 45 Clev. St. L. Rev. 165, 183 (1997). ↩︎
3. David Schleicher. The Seventeenth Amendment and Federalism in an Age of National Political Parties, 65 Hastings L.J. 1043, 1050 (2014). ↩︎
4. Id. ↩︎
5. 6 The Works of John Adams 440 (Charles Francis Adams ed., 1851), https://perma.cc/2GYL-GB4T. ↩︎
6. Neil MacNeil & Richard A. Baker, The American Senate: An Insider’s History 22–23 (2013). ↩︎
7. Steven Gow Calabresi & Gary Lawson, The U.S. Constitution: Creation, Reconstruction, the Progressives, and the Modern Era 1733 (2020). ↩︎
8. Schleicher, supra at 1074. ↩︎
9. Zywicki, supra at 165. ↩︎
10. Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 Nw. U. L. Rev. 500, 537 (1997). ↩︎
11. Id.; William H. Riker, The Senate and American Federalism, 49 Am. Pol. Sci. Rev. 452, 466 (1955). ↩︎
12. Akhil Reed Amar, America’s Constitution: A Biography 412 (2005). ↩︎
13. Id. ↩︎
14. H.J. Res. 39, 62d Cong. (May 11, 1911), https://perma.cc/VA7Y-MQ26. ↩︎
15. Art. I, § 4, cl. 1. ↩︎
16. 17th Amendment to the U.S. Constitution: Direct Election of U.S. Senators (1913), Nat’l Archives, https://perma.cc/NHS4-V4S7. ↩︎
17. 47 Cong. Rec. 1483 (1911). ↩︎
18. Id. at 1923. ↩︎
19. Joint Resolution Proposing an Amendment to the Constitution Providing That Senators Shall Be Elected by the People of the Several States, May 13, 1912, Nat’l Archives, https://perma.cc/V3XB-HMDJ. ↩︎
20. Ralph A. Rossum, Seventeenth Amendment, Center for the Study of Federalism (2006), https://perma.cc/BL6L-GUU9. ↩︎
21. Id. ↩︎
22. Notification of the Ratification of the 17th Amendment to the Constitution, by Secretary of State William Jennings Bryan, May 31, 1913, Nat’l Archives, https://perma.cc/XHK8-WTEL. ↩︎
23. Todd J. Zywicki, Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment, 73 Ore. L. Rev. 961 (1996). ↩︎
24. Ralph Rossum, Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy (2001). ↩︎
25. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954). ↩︎
26. Riker, supra at 469. ↩︎
27. Amar, supra at 412. ↩︎
28. Schleicher, supra at 1074–81. ↩︎
29. 469 U.S. 528 (1985). ↩︎
30. Id. at 551. ↩︎
31. Id. at 554 ↩︎
32. 517 U.S. 44 (1996); 514 U.S. 549 (1995); 501 U.S. 452 (1991). ↩︎