A Series on the Constitutional Amendments – The Seventeenth

The scene at the signing of the US Constitution.

When they call the roll in the Senate, the Senators do not know whether to answer ‘Present’ or ‘Not guilty.’

– Theodore “Teddy” Roosevelt

One of the biggest points of contention during the framing of the Constitution was the issue of representation. States with larger populations wanted proportional representation which would give one representative per a pre-decided amount of people. The states with less people wanted the same exact number of representatives per state in order to have a more fair governance. Both solutions on their own were untenable and would leave the Constitution unratified. There were several compromises struck, including the infamous three-fifths compromise. The greatest of these compromises was the development of the bicameral legislature; the senate would be comprised of 2 members per state and the House of Representatives would be comprised of representatives proportionate to the population of each state.

Another key difference between the two legislatures was the method in which they were elected. Senators were originally appointed by the state legislatures. For example, the Oregon State Senate would appoint their two senators as opposed to the people voting directly for them. This meant that the populism of the house could be put in check by the state interests represented by the senators. The founders developed this idea from the British House of Lords in which they were appointed and not elected.

After many years, there became calls for reform. There had been a few instances of state legislatures being deadlocked and leaving senate seats vacant for a year or more. Along with this there were also a couple of elections voided due to obvious corruption. These were serious issues but an opponent of popular election of Senators, Todd Zywicki, pointed out that there were ways of dealing with these. Zywicki also brought to attention that the deadlocks happened in brand new states that were still struggling to figure out their own governance and were inexperienced. Some states had also set up “senatorial advisory boards” which functioned much like the electoral college; they would hold a vote for US senators and the state senate would then take the popular vote into consideration under their rules. In short, the people were solving the problems that arose from the indirect election of senators.

Nevertheless in 1911 the seventeenth amendment to our Constitution was proposed which reads:

“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.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”

In essence the amendment proposed the popular election of senators. It also included a clause that allowed the state governors to appoint a temporary replacement should a vacancy arrive in the senate before an election was held. The caveat to this was that they had to hold an election as soon as possible to fill the vacancy.

This was not the first time the popular election of Senators had been proposed before. The idea had been seriously considered previously in 1826, 1829 and 1855. Andrew Jackson was the most vocal president in support of the idea, but it took until the early Twentieth Century to finally get the amendment ratified.

It took two years for the amendment to be ratified by three-fifths of the states necessary, and this is the first amendment where a state outright rejected the ratification. Utah rejected ratification 2 months before Connecticut became the final state to ratify it in April of 1913. Several states ratified afterwards but there were no votes held on the amendment in six other states. These states are notable because all six were from the old Confederate south and were loathe to relinquish the power they held over their states. Their fear was that the larger black population would kick out the white incumbents.

There have been no Supreme Court cases dealing with the seventeenth Amendment, though there was a lower court of appeals case that bears mentioning. In 1991 a Pennsylvania Senator died and his successor was appointed by the governor until the election was held. A potential senatorial candidate requested that the successor be removed because his right to vote for the candidate of his choice was being taken away from him. The initial ruling was in favor of the plaintiff stating this was a violation. The state appealed to the 3rd Circuit Court of Appeals and the lower court ruling was overturned because no statute of the seventeenth amendment was violated. The Supreme Court refused to hear the case so the ruling of the 3rd Circuit Court stood.

The seventeenth amendment is a large point of contention for some who believe the power of the federal government has grown too much. There are also arguments made that the passage of this amendment has led to harmful policies since there isn’t a house in Congress that represents the interests of the states; both houses of Congress are now beholden to the whim of the people instead of the being removed from populist sway. While the direct election of senators may make for a more democratic nation, the idea of the founders was a representative republic. Without state interest being represented as a counterweight to populism it’s likely we will see tyranny rise up in the form of populist reforms.



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