June 10, 2011 – Amendment XVII of the United States Constitution – Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

Amendment XVII

The Seventeenth Amendment, adopted April 8, 1913, provides as follows:

1: 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.

2: 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.

3: 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.

The first sentence substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislature.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the 17th Amendment, with little or no realization that the Seventeenth amendment would diminish state power and undermine federalism generally.  Many legislators apparently thought they had more important matters to attend to than to devote time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

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5 Responses to “June 10, 2011 – Amendment XVII of the United States Constitution – Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center”

  1. Ralph T. Howarth, Jr. says:

    Much commentary on the 17th has been to repeal it. Not much to add to this essay. Seems to provide good historical overview. Here is my Congress 2.0 version of a repeal amendment:

    Article Eighteen: State Representation / 17th Repeal Amendment
    1) The seventeenth article of amendment to the Constitution of the United States is hereby repealed.
    2) Salaries of Senators of the United States shall be paid by the federal treasury and shall not be increased during the term of the Senator .
    3) 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.
    4) The executive authority of the state may fill vacancies that may happen in the representation of any State in the Senate: Provided that the legislature of any State may empower the executive thereof to make interim appointments while the legislature is out of session, the omission of any vote of consent as passive consent to the appointment made of the executive.
    5) The executive authority of the state shall issue Writs of Elections for any new vacancies made in the state by the appointment of a Senator to the United States; but the candidate who had garnered the second number of votes for the office shall be granted first right of refusal as interim elect, and ballot to any subsequent election so ensued.

    The design of this amendment is to assure that states do get represented by allowing the state executive authority to make interim appointments, allow for interim appointments, allow for state legislatures the option to allow for permenant appointments, and to provide for a local election for cases where the Senator appointee happens to, ideally, be a member of the state legislature and so is an experienced, elder statesman or woman who knows full well what is going on with the federal legislation matters and the impact of those laws on the welfare of the state.

  2. Ralph T. Howarth, Jr. says:

    Oops, meant to say, “allow for confirmation of interim appointments” in there.

  3. Barb Zakszewski says:

    It’s a shame that even back then, people were losing sight of the Original intent of the Founders and Framers of the Constitution. The 10th Amendment alone is not enough to protect the States from the Federal Government, which was an intention of the Founders. In order to bring the Nation back to what it was intended, perhaps its time to introduce a repeal of the 17th Amendment and return election of Senators back to the States, the original intention.

  4. Ron Meier says:

    Wow, this amendment may have done more to upend the founders’ original intent than anything else over the past 100 years. We spend so much time defending the rights under the 2nd Amendment and trying to repeal the 16th Amendment. Might we not be better served to spend ALL our energies trying to repeal the 17th Amendment and forcing our state watchmen on the wall to defend their states’ rights and prevent the federal government from forcing it’s will on the people and on the states. The walls of our republic have been slowly, but surely, decaying so much over the past 100 or more years that we’ve not been aware of what has been happening. Indeed, as some politician recently has said, “It’s time for change.”

  5. Lynda wilson says:

    The obstacles I have run into trying to explain the repeal of the 17th and what it would mean to the states is that people believe you are removing their rights to vote directly. It’s difficult to explain how the 17th undermined the rights of the states. Much education is needed to begin to sway the attitudes. I know of two states…Idaho and Washington where repealing this amendment is within the platform of their state GOP. It’s a start anyway.

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