Interpretation & Debate

The Seventeenth Amendment

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Common Interpretation

by David N. Schleicher

Professor of Law at Yale Law School

by Todd J. Zywicki

George Mason University Foundation Professor of Law at George Mason University Antonin Scalia School of Law

While many constitutional amendments have added to the rights held by Americans, changed the balance of power between the federal government and states, or altered elections for the President, the structure of Congress in the written Constitution has barely been touched since 1791. The only constitutional amendment to do so in a substantial way is the Seventeenth Amendment, which removed from state legislatures the power to choose U.S. Senators and gave that power directly to voters in each state.

According to James Madison, giving state legislatures the power to choose Senators provided a “double advantage,” both “favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former.” The Federalist No. 62. George Mason argued that state legislative selection gave states the power of self-defense against the federal government. Wendell Pierce argued that the contrast between a state legislatively-appointed Senate and a popularly-elected House would increase the types of interests represented in the federal government. By requiring the consent of two different constituencies to any legislation—the people’s representatives in the House and the state legislatures in the Senate—the composition of the Senate was seen as essential to the system of bicameralism, which would require “the concurrence of two distinct bodies in schemes of usurpation or perfidy.”

Whether state legislative appointment was included in the Constitution to protect state governments, though, is a matter of some dispute. Contemporary legal scholar Terry Smith argues that it was merely the result of the intersection of two other goals, the Great Compromise giving states equally-weighted votes in the Senate and a desire to limit popular representation.

Either way, state legislatures were not given other powers that might have allowed them to more directly control Senators, like the power to recall Senators or to instruct them on how to vote. As a result, scholars like William Riker and Larry Kramer have argued that state legislatures exerted little control over Senators at any point, although more recent work by Todd Zywicki has argued that this is overblown and state legislative control did have a substantial effect on the way the Senate operated. (See Todd Zywicki’s individual explainer on the Seventeenth Amendment.) 

However, starting in roughly the 1830s and then more dramatically after the Civil War, the vision the Founders had—in which state legislatures would deliberate over the selection of Senators—began to fray. First, politicians seeking Senate seats began campaigning for state legislative candidates in a process known as the “public canvass.” The result was that state legislative races became secondary to Senate races. The most famous instance of this was the race for Senate in Illinois in 1858, in which Abraham Lincoln faced off with Stephen Douglass despite neither being on the ballot. In 1890s, many states started holding direct primaries for Senate, reducing the degree of influence state legislatures had over selection. Some states went further and began using something known as the “Oregon System,” under which state legislative candidates were required to state on the ballot whether they would abide by the results of a formally non-binding direct election for U.S. Senator. By 1908, twenty-eight of the forty-five states used the Oregon System or some other form of direct elections. 

The push for the Seventeenth Amendment occurred both in state legislatures and the House of Representatives. Between 1890 and 1905, thirty-one state legislatures passed resolutions either calling on Congress to pass an amendment providing for the direct election of senators, to hold a conference with other states to work on such an amendment, or to have a constitutional convention such that the direct elections for Senator could be included in a newly drawn Constitution. Amendments to the Constitution providing for direct elections passed the House in each session between 1893 and 1912. 

But several influential Senators managed to hold off the Amendment for more than two decades. Their effort was aided by a decision to link the Amendment to a controversial effort to remove from Congress the power to pass rules governing federal elections under the Elections Clause of Article I. Eventually, though, the issues were split and it passed both Houses in 1912 and was ratified by the States in 1913. 

The arguments for the Seventeenth Amendment sounded in the case for direct democracy, the problem of hung state legislatures, and in freeing the Senate from the influence of corrupt state legislatures. The Progressive movement that pushed the Seventeenth Amendment supported other constitutional changes at federal, state, and local levels like the initiative and referendum, non-partisan elections, and unicameral legislatures (although there has never been a major effort to provide for democratic election of federal judges).

The Seventeenth Amendment was seen as part of a broader effort to make an end-run around the control that parties, machines, and special interests had over state legislatures. (Ironically, however, big city party machines supported the Seventeenth Amendment, largely because state legislative apportionment gave greater representation to rural areas due to districting decisions in the absence of “one person, one vote” and because machine-controlled cities could more easily mobilize voters. Many big special interests supported it as well.) William Randolph Hearst famously hired muckraking journalist David Graham Phillips to write an expose, “The Treason of the Senate,” which played a major role in debates around the Seventeenth Amendment. The popular perception that Senate seats could be bought in backrooms of state legislatures fueled support for direct elections. Further, several Senate seats remained open for years when state legislatures couldn’t agree on a choice, although the importance of this is somewhat questionable and was attributable to a federal statute that required that Senators be elected by a majority of state legislators, not a plurality, in state legislatures, a requirement that notably was not included for popular elections in the Seventeenth Amendment.

Further, supporters of the Amendment argued that races for Senate swamped interest in state issues in state legislative races, reducing the accountability of state legislatures on any issue other than the identity of Senators. (See David Schleicher’s individual explainer on the Seventeenth Amendment.)

By the time the Seventeenth Amendment finally passed, it was wildly popular. In recent years, however, the Seventeenth Amendment has come under some criticism from conservatives like Justice Antonin Scalia, columnist George Will, and a host of Republicans in Congress for removing an important power from state legislatures.   Further, the implications of the Amendment—particularly its effect on appointments following vacancies—have become the subject of some dispute. 

But despite this, the change wrought by the Seventeenth Amendment seems quite secure and remains the only major change to the structure of Congress. 

The Original Senate and the Seventeenth Amendment By Todd J. Zywicki

by Todd J. Zywicki

George Mason University Foundation Professor of Law at George Mason University Antonin Scalia School of Law

The election of U.S. Senators by state legislatures was essential to the original constitutional structure, and the adoption of the Seventeenth Amendment in 1913 dramatically changed the constitutional structure in a fashion that is little appreciated.

As an institutional matter, election of Senators by state legislatures was intended to further two of the essential functions of the original constitutional design, federalism and bicameralism. The most prominent function of the election of Senators by state legislatures was to promote federalism, both by providing the states with the ability to avoid being “swallowed up” by the federal government but also to serve as a “convenient link” between the two systems. The Framers’ logic is compelling: By giving the state legislatures in their corporate identities the ability to block federal laws that overreach, the Senate theoretically could preserve the power of the states against the national government.

The most effective way to do this would be for Senators to be elected by state legislatures, thereby aligning their self-interest with the protection of the state legislature’s powers. Moreover, because of the role played by the Senate in confirmation of federal judges and Executive branch officials, Senators elected by state legislatures might be expected to be more cognizant of the positions of these appointees on matters of federal-state relations. In light of the subsequent controversies regarding the Senate that eventually culminated in the adoption of the Seventeenth Amendment, it is interesting to note that the proposal gained almost universal support at the Constitutional Convention and was little-debated at the Convention.

The election of Senators by state legislatures was also essential to the design of bicameralism, i.e., dividing the legislature into two distinct bodies. The goal of bicameralism, along with the other elements of the separation of powers (such as the tripartite constitutional structure) was to preserve individual liberty and frustrate the ability of interest groups (or “factions”) to divert the power of the federal government to promote their private interests. This concern about liberty-encroaching and special interest-responding legislation was especially acute among the Framers of the Constitution, who believed that state legislatures under the Articles of Confederation were overly-prone to these vices. By requiring the “concurrence first of a majority of the people, and then of a majority of the States,” James Madison thought that bicameralism would provide greater protection against “improper acts of legislation” than a unicameral legislature or two houses drawn from similar constituencies.

In addition to these institutional roles, the Senate was also expected to play an anti-democratic function under the Constitution, serving as a sort of American House of Lords composed of men of substantial accomplishment, judgment, and independence, who would be above the rough-and-tumble of democratic politics. This assumption accounts for many of the unique functions of the Senate that are not shared with the House, such as the power to advise and consent on appointments, to ratify treaties, and to try impeachments. Historian C.H. Hoebeke has argued, however, that this project was doomed for failure from the outset, as state legislatures—notorious hotbeds of populism—provide an unlikely source for sober elections.

The Senate’s effectiveness in fulfilling these functions may have been less robust in practice than the Framers anticipated, especially in light of the unanticipated evolution of national political parties. (See David Schleicher, The Liberal Case for the Seventeenth Amendment.) Still, the constitutional and political history of post-Seventeenth Amendment America, especially in terms of federalism, is dramatically different from what came before, and it is difficult to believe that the election of Senators by state legislatures (however attenuated) didn’t play some role in that. To be sure, any effects of the Seventeenth Amendment must also be considered in combination with the Sixteenth Amendment, which permitted a federal income tax. Although it is difficult to isolate the effects of the Seventeenth Amendment, intuition suggests that the different pattern of the growth of the federal government in the twentieth century versus the pattern of the prior century, is attributable, at least in part, to the passage of the Seventeenth Amendment.

The Seventeenth Amendment also radically changed the structure of bicameralism, by increasing the degree of similarity between the constituencies of the House and Senate. Although Senators are still elected in statewide elections with larger constituencies, both bodies represent the people directly, thus eliminating the check of requiring different constituencies to consent to any laws. This change would be expected to increase the power of special-interest influence over the federal government. It can be difficult to test this particular hypothesis; still, reasonable minds could conclude that the federal government in the twentieth and twenty-first centuries has been more engaged in redistribution schemes designed to reward particular special interests than in prior eras.

Despite its essential role in the original constitutional structure, as a historical matter the overall record of the original Senate in executing its constitutional functions is somewhat mixed. The Framers believed that the original Senate would be both a necessary and sufficient protection for the states against the federal government and an important check against interest groups. In this sense, the lasting testament of the original Senate is to identify the challenge of designing constitutional structures that can be sustained over the long run, especially in response to unanticipated events such as the rise of political parties and democratic forces.

The Liberal Case for the Seventeenth Amendment

by David N. Schleicher

Professor of Law at Yale Law School

While most discussions of the causes of the Seventeenth Amendment focus on issues like the effects of corruption in state legislatures and the Progressives’ embrace of mass democracy and the like, they underplay the importance of federalism. Proponents of the Amendment argued that removing from state legislatures the power to choose U.S. Senators would make state democracy work better, allowing voters to focus on state issues when choosing state officials.  

When the Seventeenth Amendment is discussed today, however, this issue is largely ignored. This historical forgetting has led modern conservative critics to misunderstand the effect of senatorial elections/appointment on state governments and the operation of our federal system. 

Figures like Justice Antonin Scalia and Senator Mike Lee have criticized the Seventeenth Amendment because it removed a power through which state governments could control the federal government. That is to say, they criticize the Seventeenth Amendment for harming states and state governments. 

As my work has shown, this is almost completely backwards. Requiring state legislatures to choose Senators made state legislative elections simply into proxies for choosing Senators. Unless one takes a purely formal view, a rule that renders state elections useless as a means of creating representation and accountability for state officials should be seen as bad for the values of federalism. Rather than harming “our federalism,” the Seventeenth Amendment should be seen as an essential piece of the protections the Constitution provides for states as political entities, alongside the Guarantee Clause of Article IV and the Tenth and the Eleventh Amendments.

Notably, support for the Seventeenth Amendment did not originate from national politicians. Instead, state legislatures and state voters in referenda forced consideration of the Amendment against opposition in Congress, both through reforms like the “Oregon System” and direct calls for an amendment or for a constitutional convention. It is not hard to see why. For instance, in deciding whom to vote for in state legislative races in 1858, voters in Illinois had to consider the weighty subjects of union and slavery because they were really choosing between Stephen Douglas and Abraham Lincoln. Rather than allowing them to make that choice separately from trying to hold state senators responsible for the performance of state government, the pre-Seventeenth Amendment Constitution forced them to weigh these decisions together. As a result, state issues became barely a passing interest in elections for state legislature.

The effect of senatorial appointment on state legislative elections was a major issue in debates over the Seventeenth Amendment. For instance, Senator John Hipple Mitchell of Oregon (of Pennoyer v. Neff (1878) fame) argued, “Another vital objection to the choosing of Senators by the legislatures . . . is found in the fact that in the selection of candidates for the legislature whose business it is to choose a Senator, every consideration is lost sight of except as to how the candidates, if elected, will vote on the question of senatorship.” Senator John Palmer of Illinois echoed this: “Now, whatever may be the wants or the necessities of the people of the States with respect to local legislation, the legislators are elected with reference to the vote they will cast for Senator, and thus these duties are made to conflict, and the national interests, the party interests, are so overwhelming in comparison with those of the people of the States, of the local interests.”  George Hayes, the leading scholar of the time on the issue, made clear that the effect of senatorial appointment on state legislative races was a central issue in the case for the Amendment.

Despite the Seventeenth Amendment, state legislative races still turn largely on national issues, particularly the popularity of the President. Most voters do not know much about their state legislators or state legislatures, and use national party endorsement—is the candidate a Democrat or Republican—as a heuristic when voting in state races, even if they do not know much about the stances of parties on state issues or even which party is in power. In the parlance of political scientists, state legislative elections are largely “second order,” or turn on the performance of co-partisans at other levels of government, specifically the federal government. 

This does not suggest that we need to repeal the Seventeenth Amendment, but rather that we need new tools to further its ambition to make state elections provide accountability and representation for state voters on state issues and government performance. The Seventeenth Amendment turned out to be a necessary but not sufficient condition for making state democracy work well. Repealing it, however, would be a disaster for state democracy. 

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