The Liberty Amendments: Restoring the American Republic
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This amendment shall not be construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
The Seventeenth Amendment altered fundamentally the way most senators had been chosen for 124 years. Prior to its ratification, United States senators were usually selected by the legislatures of the various states, two from each state. They served for six years, with a third of the Senate up for state legislative reelection every two years. If vacancies in Senate seats arose between elections, the state legislatures typically chose a replacement to serve the remainder of the unexpired term. If a vacancy occurred at a time when a state legislature was out of session, the governor of the state was empowered to name a temporary officeholder who would serve until the legislature reconvened and could choose a new senator.1
Considered by itself, the Seventeenth Amendment seemed reasonable enough—which is why it was ratified in near-record time. If democracy in limited doses is good, so went the Progressive cant at the time, more democracy could only be proportionally better. If choosing congressmen and congresswomen in the House of Representatives by popular vote works so well, then why not choose senators by direct popular elections? The fact that the Framers established a different method for choosing senators, and considered that method critical to the proper functioning of the federal government, was of no consequence.
However, the Framers did, in fact, value democratic expression. For most of them, popular democracy was a vital aspect of consensual government. But they also understood that along with its benefits there were shortcomings, and the will of the people—subject to majoritarian and factional swings and lurches—should be balanced with dispassionate, considered judgment through a stable and diffused governing construct.
The simple, logical elegance of the organization of the Senate belied the extent and passion of the discussions over its creation, both at the Constitutional Convention in Philadelphia in 1787 and in the state ratification conventions. Like nearly every clause in the Constitution, the Framers intended that the nature and operation of the Senate serve several functions simultaneously. Providing the state governments with direct input in the national government was not only an essential check on the new federal government’s power, but also a means by which the states could influence congressional lawmaking, without stripping the federal government of its enumerated primacy over certain matters of governance. Moreover, the equal representation in the Senate provided the less populated states with a critical limit on the possibility that the more populated states would hold powerful sway over the affairs of the nation. In addition, the small size and relative stability of the Senate created an institutional means for tempering fleeting majoritarian or factional passions. There was also strong sentiment among the convention delegates that the Senate, by virtue of its limited size and exclusive membership, could serve as a de facto privy council for the president.
At the outset of the Constitutional Convention, Virginia governor Edmund Randolph rose to offer what would become known as the Virginia Plan for the organization of the new national government, as a point from which to begin deliberations. The plan, authored primarily by James Madison, included a bicameral national legislature, a unitary executive, and a national judiciary. The first and largest body of Congress, which would become the House of Representatives, was to be elected directly by the people. The second body, which would become the Senate, would be much smaller and chosen by the first group of candidates put forth by the state legislatures. While no specific terms of office were proposed in the Virginia Plan, it was largely understood that the members of the smaller “upper” house (Senate) would serve longer than their counterparts in the lower house (House of Representatives).2
The initial discussions on the Virginia Plan presented an interesting dichotomy of perspectives on the roles of the two houses of the national legislature. Madison argued strenuously for the election of the House by the people: “Mr. Madison considered the popular election of one branch of the National Legislature as essential to every plan of free Government”3 and for “refining the popular appoints by successive filtrations . . . to be resorted to only in the appointment of the second branch of the Legislature, and in the Executive & Judiciary branches of the Government.”4
Elbridge Gerry, a delegate from Massachusetts and future vice president of the United States, “did not like the election by the people. . . . Experience had shown that the State legislatures drawn immediately from the people did not always possess their confidence. He had no objection however to an election by the people if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments. He seemed to think the people might nominate a certain number out of which the State legislatures should be bound to choose.”5 In the convention’s first vote on the election of the larger house of Congress by the people, the vote was six states voting yes, two voting no, with two divided.6
The convention then addressed the resolution in the Virginia Plan, calling for the election by the second house of the national legislature (the Senate) by the first (the House). Richard Spaight, a delegate from North Carolina, moved to amend the resolution to say that the second branch be chosen by the state legislatures.7 South Carolina delegate Pierce Butler “apprehended that the taking so many powers out of the hands of the States as was proposed, tended to destroy all that balance and security of interests among the States which is necessary to preserve; and called on Mr. Randolph the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to the second branch.”8
Randolph stated that, while he had not had in mind a specific number, “it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. He observed that the general object was to provide a cure for the evils under which the U.S. labored; that in tracing these evils to their origin every man had found in the turbulence and follies of democracy: that some check therefore was to be sought for against this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose.”9
Similar expressions arose throughout the convention whenever discussion of the provenance of the Senate took place. On June 7, Delaware’s John Dickinson made a motion that the second house of the national legislature (the Senate) be chosen by the state legislatures. He did so because “this mode will more intimately connect the State governments with the national legislature—it will also draw forth the first characters either as to family or talent, and that it ought to consist of a considerable number.”10
Dickinson related the upper house (Senate) to the British houses of commons and lords, “whose powers flow from different sources, are mutual checks on each other, and will thus promote the real happiness and security of the country—a government thus established would harmonize the whole.”11
Elbridge Gerry, a skeptic throughout the convention (and, incidentally, one of only three delegates who stayed to the end and refused to sign the final Constitution), added that “the great mercantile interest and of stockholders, is not provided for in any mode of election—they will however be better represented if the State legislatures choose the second branch.”12
George Mason of Virginia, an inveterate populist, changed his thinking and supported the motion. “Mr. Mason then spoke to the general question—observing on the propriety, that the second branch of the national legislature should flow from the legislature of each State, to prevent encroachments on each other and to harmonize the whole.”13
Rufus King of Massachusetts made his own notes of the early debate about the means by which senators should be chosen. On the motion that there should be a large number of senators to ensure representation in the body of as many of the leading families and interests in the country as possible, King quoted Madison as saying, “The Senate should come from, and represent, the wealth of the Nation, and this being the Princ
iple, the proposed amendment cannot be adopted.—besides the numbers will be too large—History proves this proposition, that delegated power has most weight and consequence in the hands of a few. The Roman tribunes when few, checked the Senate—when numerous, they divided, became weak and ceased to be the Guardians of the People, which was the object of their institution.”14
Pennsylvania’s James Wilson also proffered his views on a national legislative body elected by the more numerous, popularly elected House or by the state legislatures. “I well know that all confederations have been destroyed by the growth and ambition of some of their Members, and if the State Legislatures appoint the Senators, the Principle will be received by which the ancient Confederacies were ruined. I therefore propose that the Senators be elected by the People, and for this purpose, that the territory be formed into convenient divisions or Districts.”15
Opposition to Wilson’s motion was nearly unanimous. Only his own state, Pennsylvania, approved of his plan. The other states voted no. Mason, again, aptly crystallized the emphatic attitude of the convention in its consideration of the provenance of the Senate. “It is true that the old Confederacies were ruined by great overgrown power and the ambition of some of their Members—but their circumstances differed from ours—we have agreed that the national Government shall have a negative on the acts of the State Legislatures.—the danger now is that the national Legislature will swallow up the Legislatures of the States. The Protection from the Occurrence will be the securing to the State Legislatures, the choice of the Senators of the U.S. So adopted unanimously.”16
After the convention’s draft constitution was dispatched to the states for ratification, the character of the Senate was an imperative selling point about the federal nature of the proposed national government. In Federalist 39, Madison went to great pains to delineate the ways in which the Constitution established a federal, republican form of government. “The first question that offers itself is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.”17
After noting that the people of the country are, directly, the source of authority for the new federal government—hence, the “We the People” start to the preamble to the Constitution—and that the states, as independent sovereigns of governance with their own writs from the people, had to ratify the Constitution before it could take effect, Madison then dissected the proposed government to identify the national and federal aspects of its composition. While the House, elected directly by the people in proportion to the populations of the various states, was a national body, “[t]he Senate, on the other hand, will derive its powers from the States as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress.” This circumstance, he contended, was distinctive to a federal government rather than a unitary national entity.18
The disposition at the state conventions was largely in favor of the Senate serving as an indispensable venue for the representation of state interests at the national level. However, other questions about the operation of the Senate arose. The Massachusetts Ratification Convention saw prolonged and passionate discussions about both the two-year term for members of the House and the six-year term for senators.19
The organization of the Senate was the subject of Federalist Fisher Ames’s speech to the Massachusetts Ratification Convention. Ames, a highly regarded figure, said that the Senate, by its unique nature, exemplified the “sovereignty of the states,” while the House of Representatives was the dominion of the “individuals.” This meant that the Senate served as a “federal feature” and a guard against the national government eventually subsuming the states—a recurring complaint among delegates to the commonwealth’s ratification convention. Ames even warned that if members of the Senate were elected directly by the people it would make it much easier for the federal government to “consolidate” the state governments under its control. State governments, Ames said, spoke for “the wishes and feelings and local interests of the people.” They were “the safe guard and ornament of the constitution, a shelter against the abuse of power and the natural avengers of our violated rights.” He characterized senators as “the ambassadors of the states.”20
At the Virginia Ratification Convention, in response to Patrick Henry’s concerns about an omnipotent federal government, Madison argued, in part, that “[t]he members to the national House of Representatives are to be chosen by the people at large, in proportion to the numbers in the respective districts. When we come to the Senate, its members are elected by the states in their equal and political capacity. But had the government been completely consolidated, the Senate would have been chosen by the people in their individual capacity, in the same manner as the members of the other house. Thus it is of a complicated nature; and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction. . . . ”21
The only real question raised during the state ratification conventions was unrelated to the structure of the Senate. Discussions emerged over whether state legislatures could instruct senators how to vote on any given issue. The idea was even raised later in the First Congress, when the House was debating the proposal that would become the First Amendment. A congressman from South Carolina asked why the amendment did not include language providing for the right of citizens to make binding instructions to their representatives in Congress. Madison, a representative from Virginia and the lead author of the proposed amendments, said that it was redundant to do so; citizens inherently had the right to influence their representatives and state legislatures had the right to instruct their senators. It would also be impossible, as supporters of the right to instruct had wanted, to institute a penalty for senators who failed to follow explicit instructions, or for states not to be bound by federal legislation for which their edicts were ignored by their senators. This idea died when it was pointed out it would amount to a de facto veto by states of federal laws.22
Although there were various points of trepidation in every state ratification convention about some aspect of the Constitution’s design, which were aired fully and passionately, none of the amendments to the Constitution suggested by any of the state ratification conventions included the direct popular election of senators. There were unquestionably many people from all stations in life, from every corner of the new country, represented at the state ratification conventions. Many were fearful that the new federal government would seize state authority and centralize power. The state legislatures’ role in selecting senators was considered one of the most significant firewalls. There was never serious consideration of the direct popular election of both houses of Congress.
The first proposed constitutional amendment to change the way senators were chosen was introduced by Representative Henry R. Storrs, from New York, in 1826. It went nowhere. Similar amendments were introduced in 1829 and 1855, neither of which was any more successful than the first attempt. In 1868, President Andrew Johnson sent to the Senate a proposed constitutional amendment that included a provision for the popular election of senators as well as language to change the presidency to a single six-year term. That proposal died quickly.23
The proposal that eventually became the Seventeenth Amendment, providing for the direct popular election of senators, probably would
not have become part of the Constitution had it been brought forward in other times. In fact, it failed when it was introduced several times over the decades before it was finally ratified. The idea benefited from the unique political and cultural atmosphere that consumed the nation during the late nineteenth and early twentieth centuries—a Progressive populism promoting simultaneously radical egalitarianism and centralized authoritarianism. Public sentiment grew amenable to changing the method of selecting senators. State legislatures responded to these pressures by letting the public vote, in some fashion, on who they wanted as their senators. For example, in some states the legislature would nominate candidates from each party. The state legislature would then take under advisement the public’s preference in choosing the senator—effectively letting the public “vote” in a “primary” election to select the finalists from whom the legislature would pick the senator. Thirty-one states offered some manner of popular voting on senators at one time or another before the Seventeenth Amendment was ratified.
Among the most persuasive arguments offered for changing the way senators were chosen was that state legislatures were occasionally in disarray over the selection of senators, unable or unwilling to find enough votes to elect a senator, which occurred during the nineteenth century. Thus, states were denied full representation in the Senate from time to time. For example, one of Delaware’s Senate seats was unoccupied from March 1899 to March 1903. Moreover, the Delaware legislature failed to select any senators from 1901 to 1903. In 1897, in Oregon, one-third of the members of the legislature refused to take their oaths of office in order to prevent their opponents from electing the next senator. The legislature was “in session” for fifty-three days without conducting a single official act, including electing a senator.24 All told, from 1895 to 1905, state legislatures in California, Delaware, Montana, Oregon, Pennsylvania, Utah, and Washington State failed to elect senators for periods ranging from ten months to four years.25 Even so, vacancies for lengthy periods were rare.