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. 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. 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. 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. 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. 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. Proponents of the Amendment argued that removing from state legislatures the power to choose U.
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. 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.
Notably, support for the Seventeenth Amendment did not originate from national politicians. Although the method had never previously been used, many states began sending Congress applications for conventions. As the number of applications neared the two-thirds bar, Congress finally acted. In , the House of Representatives passed House Joint Resolution 39 proposing a constitutional amendment for direct election of senators. A substitute amendment by Senator Joseph L.
Over a year later, the House accepted the change, and the amendment was sent to the states for ratification. On April 8, , three-quarters of the states had ratified the proposed amendment, and it was officially included as the 17th Amendment. House Resolution to amend the Constitution, February 14, Petition of the State Grange of Illinois, December 29, Supreme Court finds that the Hatch Act, a federal law that prohibits federal employees from participating in many electoral activities does not violate the First Amendment.
In a strong dissent, Justice Hugo Black argues that the law muzzles several million citizens and threatens popular government, because it deprives citizens of the right to participate in the political process.
Moreover, Black finds that the Hatch Act would violate, or come dangerously close to violating, Article I and the 17th Amendment, which protect the right of the people to vote for their representatives in the House and Senate and to have their votes counted.
In MacDougall v. Green , the U. Supreme Court upholds an Illinois statute that requires political parties to obtain at least 25, signatures to put its candidate on the ballot for U. The statute also requires at least signatures from each of at least 50 counties in the state.
Its claim is based on the fact that the law treated counties as if they all had the same population, but in reality most of the voters lived in a small number of counties in the Chicago area. The Court rules, however, that the law does not violate either amendment.
A Georgia law establishes a primary voting system in which the popular vote of each county determines which candidate wins that county. Each county is then assigned a certain number of unit votes and the winner of the most unit votes wins the election.
Because urban counties have many more voters than rural counties, some saw equating the votes of the two counties as unfair. Because each rural voter would have the same impact as several urban voters, the rural voters had a much larger impact on the outcome of the election.
In South v. The U. Supreme Court allows the law, saying that the problem is a political one that should be left to the state government. In Lassiter v. Northampton County Board of Elections , the U.
Finding that the rule is consistent with the 14th, 15th and 17th Amendments, the Court rules that the states have long been held to have broad powers to determine the conditions under which voting rights may be exercised.
Although the Court notes that state standards cannot be discriminatory or go against any restriction that Congress has imposed, it finds that states may reasonably impose requirements based on residence, age, and criminal record. Similarly, the Court holds, a state may consider the ability to read and write in determining the qualifications of voters. At issue in Baker v. By maintaining old district boundaries, the state allotted rural citizens, who were mostly white, greater proportional representation than their counterparts in the growing cities, where ethnic minorities and blacks primarily lived.
Reversing its earlier ruling in Colegrove v. Green , the Supreme Court agrees that the issue could be resolved by the courts rather than leaving the matter solely in the hands of state legislatures.
After Baker , a number of lawsuits contest legislative redistricting. Building on its earlier decision in Baker v. Carr and reversing South v. Peters , the U. Supreme Court in Gray v. Because each rural voter would have the same impact as several urban voters, the rural voters had a much larger impact on the outcome of the election than urban voters.
Writing for the majority of the Court, Justice William O. Douglas finds that this policy violates the equal protection clause of the 14th Amendment.
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