Seventeenth Amendment to the United States Constitution
Articles Blog

Seventeenth Amendment to the United States Constitution

October 15, 2019


Seventeenth Amendment to the United States
Constitution The Seventeenth Amendment to the United States
Constitution established direct election of United States Senators by popular vote. The
amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which senators
were elected by state legislatures. It also alters the procedure for filling vacancies
in the Senate, allowing for state legislatures to permit their governors to make temporary
appointments until a special election can be held. Under the original provisions of
the Constitution, senators were elected by state legislatures; this was intended to prevent
the federal government from indirectly absconding with the powers and funds of the states. However,
over time various issues with these provisions, such as the risk of corruption and the potential
for electoral deadlocks or a lack of representation should a seat become vacant, led to a campaign
for reform. Reformers introduced constitutional amendments
in 1828, 1829, and 1855, with the issues finally reaching a head during the 1890s and 1900s.
Progressives, such as William Jennings Bryan, called for reform to the way senators were
chosen. Elihu Root and George Frisbie Hoar were prominent figures in the campaign to
maintain the state legislative selection of senators. By 1910, 31 state legislatures had
passed motions calling for reform. By 1912, 239 political parties at both the state and
national level had pledged some form of direct election, and 33 states had introduced the
use of direct primaries. With a campaign for a state-led constitutional amendment gaining
strength, and a fear that this could result in a “runaway convention”, the proposal to
mandate direct elections for the Senate was finally introduced in the Congress. It was
passed by the Congress and, on May 13, 1912, was submitted to the states for ratification.
By April 8, 1913, three-fourths of the states had ratified the proposed amendment, making
it the Seventeenth Amendment. Secretary of State William Jennings Bryan formally declared
the amendment’s adoption on May 31, 1913. Critics of the Seventeenth Amendment claim
that by altering the way senators are elected, the states lost any representation they had
in the federal government and that, in addition to violating the unamendable state suffrage
clause of Article V, this led to the gradual “slide into ignominy” of state legislatures,
as well as an overextension of federal power and the rise of special interest groups to
fill the power vacuum previously occupied by state legislatures. In addition, concerns
have been raised about the power of governors to appoint temporary replacements to fill
vacant senate seats, both in terms of how this provision should be interpreted and whether
it should be permitted at all. Accordingly, noted public figures have expressed a desire
to reform or even repeal the Seventeenth Amendment. Background
Original composition Originally, under Article I, § 3, Clauses
1 and 2 of the Constitution, each state legislature elected its state’s senators for a six-year
term. Each state, regardless of size, is entitled to two senators as part of the Connecticut
Compromise between the small and large states. This contrasted with the House of Representatives,
a body elected by popular vote, and was described as an uncontroversial decision to make; James
Wilson was the sole advocate of popularly electing the Senate and his proposal was defeated
10–1. There were many advantages to the original method of electing senators. Prior
to the Constitution, a federal body was one where states effectively formed nothing more
than permanent treaties, with citizens retaining their loyalty to their original state. However,
under the Constitution the states were subordinated to a central government; the election of senators
by the states reassured Antifederalists that there would be some protection against the
swallowing up of states and their powers by an ever-expanding federal government, providing
a check on the power of the federal government. Additionally, the longer terms and avoidance
of popular election turned the Senate into a body to “temper” the populism of the House.
While the Representatives existed in a two-year direct election cycle, the senators could
afford to “take a more detached view of issues coming before Congress”. State legislatures
also retained the theoretical right to “instruct” their senators to vote for or against proposals,
giving them both direct and indirect representation in the federal government. The Senate also
provided formal bicameralism, with the members of the Senate and House responsible to completely
distinct constituencies; this helped defeat the problem of the federal government being
subject to “special interests”. Members of the Constitutional Convention also saw it
as an equivalent to the House of Lords, containing the “better men” of society; it was hoped
that they would provide more coolness and stability than the House of Representatives
due to the senators’ status. Issues
According to Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit,
those in favor of popular elections for senators felt that there were primarily two problems
caused by the original provisions: legislative corruption and electoral deadlocks. In terms
of corruption, the general feeling was that senatorial elections were “bought and sold”,
changing hands for favors and sums of money rather than because of the competence of the
candidate. Between 1857 and 1900, the Senate investigated three elections over corruption.
In 1900, for example, William A. Clark had his election voided after the Senate concluded
that he had bought votes in the Montana legislature. However, Bybee and Todd Zywicki believe this
concern was largely unfounded; there was a “dearth of hard information” on the subject,
and in over a century of elections, only 10 were contested with allegations of impropriety.
Electoral deadlocks were another issue. Because state legislatures were charged with deciding
who to appoint as senators, the system relied on them being able to agree. Some states could
not, and thus delayed sending representatives to Congress; in a few cases, the system broke
down to the point where states completely lacked representation. Between 1891 and 1905,
46 elections were deadlocked, in 20 different states; in one extreme example, a Senate seat
for Delaware went unfilled from 1899 until 1903. The business of holding elections also
caused great disruption in the state legislatures, with a full third of the Oregon House of Representatives
choosing not to swear the oath of office in 1897 due to a dispute over an open Senate
seat. The result was that the legislature was unable to pass legislation that year.
Zywicki again argues that this was not a serious issue. Deadlocks were a problem, but they
were the exception rather than the norm; many legislatures did not deadlock over elections
at all. Most of those that did in the 19th century were the newly admitted western states,
which suffered from “inexperienced legislatures and weak party discipline…as western legislatures
gained experience, deadlocks became less frequent.” While Utah suffered from deadlocks in 1897
and 1899, they became “a good teaching experience,” and Utah never again failed to elect senators.
Another concern was that when deadlocks occurred, state legislatures found themselves unable
to conduct their normal business; James Christian Ure, writing in the South Texas Law Review,
notes that this did not in fact occur. In a deadlock situation, state legislatures would
deal with the matter by holding “one vote at the beginning of the day—then the legislators
would continue with their normal affairs”. There was also a feeling that state legislative
elections themselves had become dominated by the business of picking senators, with
legislators elected based on their intentions in senatorial elections rather than their
opinions on local issues. Calls for reform
Calls for a constitutional amendment regarding Senate elections started in the early 19th
century, with Henry R. Storrs in 1826 proposing an amendment to provide for popular election.
Similar amendments were introduced in 1829 and 1855, with the “most prominent” proponent
being Andrew Johnson, who raised the issue in 1868 and considered the idea’s merits “so
palpable” that no additional explanation was necessary. The 1860s also saw the first major
Congressional disputes over the issue, with the House and Senate voting to veto the appointment
of John P. Stockton to the Senate due to his approval by a plurality rather than a majority.
In reaction, the Congress passed a bill in July 1866 that required state legislatures
to elect senators by an absolute majority. By the 1890s, support for the introduction
of direct election for the Senate had substantially increased, and reformers worked on two fronts.
On the first front, the Populist Party incorporated the direct election of senators into its Omaha
Platform, adopted in 1892. In 1908, Oregon passed the first law that based the selection
of U.S. senators on a popular vote. Oregon was soon followed by Nebraska. Proponents
for popular election noted that ten states already had non-binding primaries for Senate
candidates, in which the candidates would be voted on by the public, effectively serving
as advisory referenda instructing state legislatures how to vote; reformers campaigned for more
states to introduce a similar method. William Randolph Hearst opened a nationwide
popular readership for direct election of U.S. Senators in a 1906 series of articles
using flamboyant language attacking “The Treason of the Senate” in his “Cosmopolitan
Magazine”. David Graham Philips, one of those yellow journalists Teddy Roosevelt called
“muckrakers”, described Nelson Aldrich of Rhode Island as the principal “traitor”
among the “scurvy lot” in control of the Senate by theft, perjury and bribes corrupting
the state legislatures to gain election to the Senate. A few state legislatures began
to petition the Congress for direct election of of senators. By 1893, the House had the
two-thirds vote for just such an amendment. However, when the joint resolution reached
the Senate, it failed from neglect, as it did again in 1900, 1904 and 1908; each time
the House approved the appropriate resolution, and each time it died in the Senate.
On the second national legislative front, reformers worked towards a constitutional
amendment, which was strongly supported in the House of Representatives but initially
opposed by the Senate—Bybee notes that the state legislatures, who would lose power if
the reforms went through, were supportive of the campaign. By 1910, 31 state legislatures
had passed resolutions calling for a constitutional amendment allowing direct election, and in
the same year ten Republican senators who were opposed to reform were forced out of
their seats, acting as a “wake-up call to the Senate”.
Reformers included William Jennings Bryan, while opponents counted respected figures
such as Elihu Root and George Frisbie Hoar amongst their number; Root cared so strongly
about the issue that after the passage of the Seventeenth Amendment, he refused to stand
for re‑election to the Senate. Bryan and the reformers argued for popular election
through highlighting perceived flaws with the existing system, specifically corruption
and electoral deadlocks, and through arousing populist sentiment. Most important was the
populist argument; that there was a need to “Awaken, in the senators…a more acute sense
of responsibility to the people”, which it was felt they lacked; election through state
legislatures was seen as an anachronism that was out of step with the wishes of the American
people, and one that had led to the Senate becoming “a sort of aristocratic body – too
far removed from the people, beyond their reach, and with no special interest in their
welfare”. Hoar replied that the people were both a less
permanent and a less trusted body than state legislatures, and that moving the responsibility
for the election of senators to them would see it passing into the hands of a body that
” but a day” before changing. Other counterarguments were that renowned senators could not have
been elected directly, and that since a large number of senators had experience in the House,
which was already directly elected, a constitutional amendment would be pointless. It was also
seen as a threat to the rights and independence of the states, who were “sovereign, entitled…to
have a separate branch of Congress…to which they could send their ambassadors”. This was
countered by the argument that a change in the mode in which senators were elected would
not change their responsibilities. The Senate freshman class of 1910 brought
new hope to the reformers. Fourteen of the thirty newly elected senators had been elected
through party primaries, which amounted to popular choice in their states. More than
half of the states had some form of primary selection for the Senate. The Senate finally
joined the House to send forward the 19th Amendment for direct election of U.S. Senators,
nearly ninety years after it first was presented to the Senate in 1826.
By 1912, 239 political parties at both the state and national level had pledged some
form of direct election, and 33 states had introduced the use of direct primaries. Twenty-seven
states had called for a constitutional convention on the subject, with 31 states needed to reach
the threshold; Arizona and New Mexico each achieved statehood that year (bringing the
total number of states to 48), and were expected to support the motion, while Alabama and Wyoming,
already states, had passed resolutions in favor of a convention without formally calling
for one. Proposal and ratification
Proposed by the Congress In 1911, the House of Representatives passed
House Joint Resolution 39 proposing a constitutional amendment for direct election of senators.
However, it included a “race rider” meant to bar federal intervention in cases of racial
discrimination among voters. When the resolution came before the Senate, a substitute resolution,
one without the rider, as proposed by Joseph L. Bristow of Kansas. It was adopted by a
vote of 64 to 24, with 4 not voting. Nearly a year later, the House accepted the change.
The conference report that would become the Seventeenth Amendment was approved by the
Senate 42 to 36 on April 12, 1912, and by the House 238 to 39, with 110 not voting on
May 13, 1912. Ratification by the states
Having been adopted by Congress, the amendment was sent to the states for ratification and
was ratified by: Massachusetts — May 22, 1912
Arizona — June 3, 1912 Minnesota — June 10, 1912
New York — January 15, 1913 Kansas — January 17, 1913
Oregon — January 23, 1913 North Carolina — January 25, 1913
California — January 28, 1913 Michigan — January 28, 1913
Iowa — January 30, 1913 Montana — January 30, 1913
Idaho — January 31, 1913 West Virginia — February 4, 1913
Colorado — February 5, 1913 Nevada — February 6, 1913
Texas — February 7, 1913 Washington — February 7, 1913
Wyoming — February 8, 1913 Arkansas — February 11, 1913
Maine — February 11, 1913 Illinois — February 13, 1913
North Dakota — February 14, 1913 Wisconsin — February 18, 1913
Indiana — February 19, 1913 New Hampshire — February 19, 1913
Vermont — February 19, 1913 South Dakota — February 19, 1913
Oklahoma — February 24, 1913 Ohio — February 25, 1913
Missouri — March 7, 1913 New Mexico — March 13, 1913
Nebraska — March 14, 1913 New Jersey — March 17, 1913
Tennessee — April 1, 1913 Pennsylvania — April 2, 1913
Connecticut — April 8, 1913 The amendment was rejected by:
Utah — February 26, 1913 Delaware — March 18, 1913
With 36 states having ratified the Seventeenth Amendment, it was certified by Secretary of
State William Jennings Bryan on May 31, 1913, as part of the Constitution.
The amendment has subsequently been ratified by:
Louisiana — June 11, 1914 Alabama — April 11, 2002
Delaware — July 1, 2010 Maryland — April 1, 2012
No action on the amendment has been completed by:
Florida Georgia
Kentucky Mississippi
Rhode Island South Carolina
Virginia Effect
The Seventeenth Amendment altered the process for electing United States senators and changed
the way vacancies would be filled. Under the original constitutional provision, state legislatures
filled vacancies when a Senator left office before the end of the term; the Seventeenth
Amendment provides that state legislatures can grant governors the right to make temporary
appointments, which last until a special election is provided to fill the seat. The power to
call such an election can also be granted to the governor. It also had an immediate
and dramatic impact on the political composition of the U.S. Senate.
Before the Supreme Court required one-man one-vote, rural counties and cities were given
equal weight in the state legislatures, enabling one rural vote to equal 200 city votes. The
malapportioned state legislatures would have given the Republicans control of the Senate
in the 1916 Senate elections. With direct election, each vote represented equally, the
Democrats retained control of the Senate. The reputation of corrupt and arbitrary state
legislatures continued to decline as the Senate joined the House of Representatives implementing
popular reforms. Judge Bybee has argued that the amendment led to complete “ignominy” for
state legislatures without the props of a state-based check on Congress. Progressive
measures were enacted to enable the federal government to supersede the discredited states
repeatedly over decades. New Deal legislation is another example of
expanding federal regulation overruling the state legislatures promoting their local state
interests in coal, oil, corn and cotton. Ure agrees, saying that not only is each Senator
now free to ignore his state’s interests, Senators “have incentive to use their advice-and-consent
powers to install Supreme Court justices who are inclined to increase federal power at
the expense of state sovereignty”. Over the first half of the 20th century, with a popularly
elected Senate confirming nominations both Republican and Democratic, the Supreme Court
began to apply the Bill of Rights to state law, overturning it wherever it harmed individual
state citizens by applying the Fourteenth Amendment.
First direct elections to the Senate Oklahoma, admitted to statehood in 1907, chose
a Senator by legislative election three times: twice in 1907, when admitted, and once in
1908. In 1912, Oklahoma reelected Robert Owen by advisory popular vote.
New Mexico, admitted to statehood in 1912, chose only its first two Senators legislatively.
Arizona, admitted to statehood in 1912, chose its first two Senators by advisory popular
vote. Alaska, and Hawaii, admitted to statehood in 1959, have never chosen a U.S. Senator
legislatively. The first direct elections to the Senate following
the Seventeenth Amendment being adopted were: In Maryland on November 4, 1913: a class 1
special election due to a vacancy, for a term ending in 1917.
In Alabama on May 11, 1914: a class 3 special election due to a vacancy, for a term ending
in 1915. Nation-wide in 1914: All 32 class 3 senators,
term 1915–1921 Nation-wide in 1916: All 32 class 1 senators,
term 1917–1923 Nation-wide in 1918: All 32 class 2 senators,
term 1919–1925 Interpretation and advocacy for reform
In Trinsey v. Pennsylvania (1991), the United States Court of Appeals for the Third Circuit
was faced with a situation where, following the death of Senator H. John Heinz III of
Pennsylvania, Governor Robert P. Casey had provided for a replacement and for a special
election that did not include a primary. A voter and prospective candidate, John S. Trinsey, Jr.,
argued that the lack of a primary violated the Seventeenth Amendment and his right to
vote under the Fourteenth Amendment. These arguments were rejected by the Third Circuit,
which ruled that the Seventeenth Amendment does not require primaries.
Another subject of analysis is whether statutes restricting the authority of governors to
appoint temporary replacements are constitutional. Vikram Amar, writing in the Hastings Constitutional
Law Quarterly, claims that Wyoming’s requirement that its governor fill a senatorial vacancy
by nominating a person of the same party as the person who vacated that Senate seat violates
the Seventeenth Amendment. This is based on the text of the Seventeenth Amendment, which
states that “the legislature of any state may empower the executive thereof to make
temporary appointments”. The amendment only empowers the legislature to delegate the authority
to the governor and, once that authority has been delegated, does not permit the legislature
to intervene. The authority is to decide whether or not the governor shall have the power to
appoint temporary senators, not in what fashion he should do so. Sanford Levinson, in his
rebuttal to Amar, argues that rather than engaging in a textual interpretation, those
examining the meaning of constitutional provisions should interpret them in the fashion that
provides the most benefit, and that legislatures being able to restrict gubernatorial appointment
authority provides a substantial benefit to the states.
Due to the controversy over the impact of the Seventeenth Amendment, there has been
advocacy for both reform and repeal of the Seventeenth Amendment. With the commencement
of the Obama Administration in 2009, four sitting Democratic senators left the Senate
for executive branch positions: Barack Obama (President), Joe Biden (Vice President), Hillary
Rodham Clinton (Secretary of State), and Ken Salazar (Secretary of the Interior). Controversies
developed about the successor appointments made by Illinois Governor Rod Blagojevich
and New York Governor David Paterson. This created interest in abolishing Senate appointment
by the governor. Accordingly, Senator Russ Feingold of Wisconsin and Representative David
Dreier of California proposed an amendment to remove this power; Senators John McCain
and Dick Durbin became co-sponsors, as did Representative John Conyers. The Tea Party
movement has been at the forefront of the campaign to repeal the Seventeenth Amendment
entirely, arguing that it would protect states’ rights and reduce the power of the federal
government.

Leave a Reply

Your email address will not be published. Required fields are marked *