Amendment XVII to the U.S. Constitution

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Amendment XVII in the National Archives

The Seventeenth Amendment (Amendment XVII) to the United States Constitution was passed by the Senate on June 12, 1911, the House of Representatives on May 13, 1912, and ratified by the states on April 8, 1913. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, transferring Senator selection from each state's legislature to popular election by the people of each state. It also provides a contingency provision enabling a state's governor, if so authorized by the state legislature, to appoint a Senator in the event of a Senate vacancy until either a special or regular election to elect a new Senator is held.

Text

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.

History

Originally, each Senator was to be elected by his state legislature to represent his state, providing one of the many American governmental checks and balances. The delegates to the Convention also expected a Senator elected by his state's legislature would be able to concentrate on the governmental business at hand without direct, immediate pressure from the populace of his state, also aided by a longer term of six years than the two year term afforded to members of the House of Representatives.

This process worked without major problems through the mid-1850s, when the American Civil War was in the offing. Because of increasing partisanship and strife, many state legislatures failed to elect Senators for prolonged periods. For example, in Indiana the conflict between Democrats in the southern half of the state and the emerging Republican Party in the northern half prevented a Senate election for two years. The aforementioned partisanship led to contentious battles in the legislatures, as the struggle to elect Senators reflected the increasing regional tensions in the lead up to the Civil War.

After the Civil War, the problems multiplied. In one case in the mid-1860s, the election of Senator John P. Stockton from New Jersey was contested on the grounds that he had been elected by a plurality rather than a majority in the state legislature.^[1] Stockton defended himself on the grounds that the exact method for elections was murky and varied from state to state. To keep this from happening again, Congress passed a law in 1866 regulating how and when Senators were to be elected from each state. This was the first change in the process of senatorial elections. While the law helped, there were still deadlocks in some legislatures and accusations of bribery, corruption, and suspicious dealings in some elections. Nine bribery cases were brought before the Senate between 1866 and 1906, and 45 deadlocks occurred in 20 states between 1891 and 1905, resulting in numerous delays in seating Senators. Beginning in 1899, Delaware did not send a senator to Washington for four years.

Reform efforts began as early as 1826, when direct election was first proposed. In the 1870s, voters sent a petition to the House of Representatives for popular election. From 1893 to 1902, the popularity of this idea increased considerably. Each year during that period, a constitutional amendment to elect Senators by popular vote was proposed in Congress, but the Senate resisted greatly. In the mid-1890s, the Populist Party incorporated the direct election of Senators into its platform, although neither the Democratic Party nor the Republican Party paid much notice at the time. Direct election was also part of the Wisconsin Idea championed by the Republican progressive Robert M. La Follette, Sr. and the Nebraskan Republican reformer George W. Norris. In the early 1900s, Oregon pioneered direct election of Senators, and it experimented with different measures over several years until success in 1907. Soon thereafter, Nebraska followed suit, and it laid the foundation for other states to adopt measures for direct election of Senators.

After the turn of the century, support of Senatorial election reform grew rapidly. William Randolph Hearst expanded his publishing empire with Cosmopolitan, which became a respected general-interest magazine at that time, and which championed the cause of direct election with muckraking articles and strong advocacy of reform. Hearst hired a veteran reporter, David Graham Phillips, who wrote scathing pieces on Senators, portraying them as corrupt pawns of industrialists and financiers. The pieces became a series titled "The Treason of the Senate," which appeared in several monthly issues of the magazine in 1906.^[2]

Increasingly, Senators were elected based on state referenda, similar to the means developed by Oregon. By 1912, as many as 29 states elected Senators either as nominees of party primaries, or in conjunction with a general election. As representatives of a direct election process, the new Senators supported measures that argued for new legislation, but in order to achieve total election reform, a constitutional amendment was required. In 1911, Senator Joseph L. Bristow from Kansas offered a resolution, proposing an amendment. The notion enjoyed strong support from Senator William Borah of Idaho, himself a product of direct election. Eight Southern Senators and all of the Republican Senators from New England, New York and Pennsylvania opposed Bristow's resolution. Nevertheless, the Senate approved the resolution largely because of the Senators who had been elected by state-initiated reforms, many of whom were serving their first terms, and therefore were more willing to support direct election. After the Senate passed the Amendment resolution, the measure moved to the House of Representatives.

The House initially had fared no better than the Senate in its early discussions of the proposed Amendment. During the summer of 1912, the House finally passed the amendment and sent it to the States for ratification. The campaign for public support was aided by Senators such as Senator Borah and the political scientist George H. Haynes, whose scholarly work on the Senate contributed to passage of the amendment.^[1]

On April 8, 1913, the Seventeenth Amendment was adopted, upon its ratification by Connecticut, a year and a half prior to the 1914 Senate election.

Effect

The Seventeenth Amendment restates the first paragraph of Article I, § 3 of the Constitution and provides for the election of Senators by replacing the phrase "chosen by the Legislature thereof" with "elected by the people thereof." It also allows each state's governor, if authorized by that state's legislature, to appoint a Senator in the event of an opening, until an election occurs.

The Seventeenth Amendment did not affect the restriction in Article I, § 4, cl. 1, which prohibits the Congress from exercising a power to "make or alter" state regulations of elections in order to determine where Senators must be chosen. When the State Legislatures chose the Senators, allowing the Congress to regulate the "places of choosing Senators" would have allowed the Congress to essentially stipulate where the state's legislature had to meet, at least for the purposes of choosing its Senators, which would have been inconsistent with state sovereignty.

Direct elections held in the states

From United States Congressional Elections, 1788-1997, The Official Results by Michael J. Dubin

The new States of Arizona, Alaska, and Hawaii are the only states never to have legislatively chosen U.S. Senators. Oklahoma (1907) and New Mexico (1912) apparently legislatively chose U.S. Senators only once.

Proposal and ratification

Congress proposed the Seventeenth Amendment on May 13, 1912 and the following states ratified the amendment:^[3]

1. Massachusetts (May 22, 1912)
2. Arizona (June 3, 1912)
3. Minnesota (June 10, 1912)
4. New York (January 15, 1913)
5. Kansas (January 17, 1913)
6. Oregon (January 23, 1913)
7. North Carolina (January 25, 1913)
8. California (January 28, 1913)
9. Michigan (January 28, 1913)
10. Iowa (January 30, 1913)
11. Montana (January 30, 1913)
12. Idaho (January 31, 1913)
13. West Virginia (February 4, 1913)
14. Colorado (February 5, 1913)
15. Nevada (February 6, 1913)
16. Texas (February 7, 1913)
17. Washington (February 7, 1913)
18. Wyoming (February 8, 1913)
19. Arkansas (February 11, 1913)
20. Maine (February 11, 1913)
21. Illinois (February 13, 1913)
22. North Dakota (February 14, 1913)
23. Wisconsin (February 18, 1913)
24. Indiana (February 19, 1913)
25. New Hampshire (February 19, 1913)
26. Vermont (February 19, 1913)
27. South Dakota (February 19, 1913)
28. Oklahoma (February 24, 1913)
29. Ohio (February 25, 1913)
30. Missouri (March 7, 1913)
31. New Mexico (March 13, 1913)
32. Nebraska (March 14, 1913)
33. New Jersey (March 17, 1913)
34. Tennessee (April 1, 1913)
35. Pennsylvania (April 2, 1913)
36. Connecticut (April 8, 1913)

Ratification was completed on April 8, 1913, having the required three-fourths majority.

The amendment was subsequently ratified by the following state:

Louisiana (June 11, 1913)

The following state rejected the amendment:

Utah (February 26, 1913)

The following states have not ratified the amendment:

1. Alabama
2. Kentucky
3. Mississippi
4. Virginia
5. South Carolina
6. Georgia
7. Maryland
8. Delaware
9. Rhode Island
10. Florida

As Alaska and Hawaii were not yet states prior to the ratification of the amendment, their admission to the Union simply required their adherence to the Constitution in its already-amended form, at the time of their admissions in 1959.

Calls for complete repeal

Several advocates of federalism have called for the Seventeenth Amendment's repeal.^[4] For example, then-U.S. Senator Zell Miller of Georgia, shortly after announcing his intention to retire from the Senate, made this statement from the Senate floor:

Direct elections of Senators … allowed Washington’s special interests to call the shots, whether it is filling judicial vacancies, passing laws, or issuing regulations.^[5]

Libertarian author and economist Thomas DiLorenzo has characterized the Seventeenth Amendment as "one of the last nails to be pounded into the coffin of federalism in America."^[6]

The amendment has been blamed, together with the Sixteenth Amendment, for generally expanding the authority of the United States Congress in the 20th century.^[7] Organizations have been created to support the amendment's complete repeal.^[8]

In 2003, the Montana Judiciary Committee, by a vote of 6-3, passed a resolution calling for the repeal of the Seventeenth Amendment, but the resolution was defeated in the Montana Senate by a vote of 39-10.^[9][10]

Calls for repeal of gubernatorial appointment option

Recent analysis

With the commencement of the Obama administration in 2009, several sitting Democratic Party Senators left the Senate for executive branch positions. As a result of the controversies surrounding successor appointments made by Illinois Governor Rod Blagojevich and New York Governor David Paterson, interest in repealing the gubernatorial appointment option has been expressed.^[11][12]

Currently, 46 of the 50 states retain the option of full gubernatorial appointment—only Connecticut, Oklahoma, Oregon, and Wisconsin rely completely on special election, a critic of the appointment option reports.^[13] Eight other states call for quick special elections, but allow for temporary gubernatorial appointments until the resolution of said election. Finally, the report states that nearly one quarter (182) of all Senators seated since the Amendment's passage first arrived in the Senate via appointment.^[14][15]

Proposed amendment

Senator Russ Feingold (D-WI) and Representative David Dreier (R-CA) have proposed an amendment to the Constitution which would repeal the Seventeenth Amendment to the extent that it allows for gubernatorial appointment of Senators.^[16][17][18] Feingold has been joined in sponsoring the proposal by John McCain (R-AZ) and Dick Durbin (D-IL) in the Senate, and Representative John Conyers (D-MI) and chairman of the House Judiciary Committee, in the House of Representatives.^[11] On March 11, 2009, a joint hearing was held between the Senate and House subcommittees on the Constitution regarding S.J. Res. 7 and H.J. Res. 21.^[19] On August 6, 2009, the Senate Subcommittee on the Constitution held a separate hearing.^[20]

Notes

References

• U.S. Senate: Direct Election of Senators Note: Much of the text of this article appears to come from the above page, which is in the public domain as a work of the U.S. government.
• NARA - The National Archives Experience: Seventeenth Amendment

See also

• Bybee, Jay S. (1997). "Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment". Northwestern University Law Review (Chicago, IL: Northwestern University Law Review) 91: 505. 
• Hoebeke, Christopher Hyde (1995). The Road to Mass Democracy: Original Intent and the Seventeenth Amendment. New Brunswick: Transaction Publishers. http://books.google.com/books?id=ll16O9jdfUEC. 
• Kochan, Donald J. (2003). "State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional". Albany Law Review (Albany, NY: Albany Law Review) 66: 1023. 
• Rossum, Ralph A. (2001). Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy. Lanham, MD: Lexington Books. http://books.google.com/books?id=FmvtjKHpgYwC. 

External links

• National Archives: Seventeenth Amendment
• CRS Annotated Constitution: Seventeenth Amendment
• The State Legislatures Opposed to the Seventeenth Amendment
• The Campaign to Restore Federalism: A site dedicated to the Seventeenth Amendment's complete repeal