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.
However, starting in roughly the s 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.
The most famous instance of this was the race for Senate in Illinois in , in which Abraham Lincoln faced off with Stephen Douglass despite neither being on the ballot.
In s, many states started holding direct primaries for Senate, reducing the degree of influence state legislatures had over selection. By , 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 and , 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 and 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 and was ratified by the States in 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. Many big special interests supported it as well.
The popular perception that Senate seats could be bought in backrooms of state legislatures fueled support for direct elections. 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. 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 election of U. Senators by state legislatures was essential to the original constitutional structure, and the adoption of the Seventeenth Amendment in 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. Instead of depriving citizens of the right to vote in Senate elections, the tea party should focus on how we hold such popular elections.
For instance, in a state the size of California, with as much demographic and political variation as it has, why do we hold at-large elections for the Senate? Instead, why not apportion the state into Senate districts, as we do with the House? Whether partisan, racial or otherwise, the diversity of those interests is difficult to capture in statewide contests in which hegemonic coalitions can consistently outvote smaller groups.
Nothing in the text of the 17th Amendment or its legislative history prevents a state from attempting to make its senators more responsive through districting.
Instead of advocating a long-shot repeal, the tea party should strive for more attainable reforms. Terry Smith, who has been published extensively on the history of the 17th Amendment, is a distinguished research professor at the DePaul University College of Law. Blowback is an online forum for full-length responses to our articles, editorials and Op-Eds. All Sections. In , as his term in the Senate was ending, Georgia senator Zell Miller called for repeal of the Seventeenth Amendment.
Progressive reformers believed that the solution to this problem was to allow the voters themselves to select their senators directly. Some members of the House of Representatives have also suggested that the Seventeenth Amendment altered the original federalist system, in which the House would represent the people and the Senate would represent the states.
They complain that the amendment severed an important link between the state legislatures and the national legislature. Regardless of such grumbling, it seems unlikely that having achieved the right to elect their own senators, the voting public would ever voluntarily give it up. Initially, the legislatures of each state elected their U. In a number of instances, disagreements between the two houses of a state legislature left Senate seats vacant for protracted periods.
In addition, reformers accused special interests of corrupting the process of electing senators. The Seventeenth Amendment sought to solve these problems by having senators directly elected by the voters.
As a result, the U. Senate retained equal authority over legislation with the House of Representatives. The truth is, the Senate is just what the mode of its election and the conditions of public life in this country make it.
Responding to many deadlocks in state legislatures that result in U. Senate seats going vacant for an entire legislative session, Congress passes a federal law that sets requirements on the methods by which state legislatures elect senators. This first change in the original process for selecting senators fails to remedy the deadlocks, which only increase in frequency. In the Presidential election of , the Populist Party puts into its party platform a call for the direct election of senators.
This marks the first time that a political party endorses direct election, although neither the Democrats nor the Republicans pay much notice to it. Muckraking magazine writers investigating corruption in government and business call for progressive reforms.
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