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.
David Graham Phillips, author of the series, charges that senators represent special interests rather than the public interest. An Oregon law permits voters to designate by referenda whom they want as senator and direct the legislature to support the popular choice. Several states call for a constitutional convention to amend the federal Constitution, if Congress does not act. Between and , thirty-one of the thirty-two required states submit applications for a convention to amend the Constitution and allow the popular election of senators.
Although the House has long been advocating a change in the election of senators, the Senate resisted until By then at least twenty-nine states were nominating senators either in party primaries or general elections.
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. It is not hard to see why. For instance, in deciding whom to vote for in state legislative races in , 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.
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. 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. Learn about the only amendment…. In this session, students learn about voting rights in America through a historical exploration of the right to vote in America. Finally, I focus on one of these four amendments, the Seventeenth, and consider the motivations driving its adoption as well as current critiques about its effectiveness.
I conclude by questioning whether repealing the Seventeenth Amendment would necessarily reinstate indirect senatorial elections as a matter of practice, whatever it would mean as a matter of formal law. As hard as it is today to formally amend the United States Constitution-and empirical studies confirm that it is one of the hardest, if not the hardest, to amend in the democratic world 1 1 See infra Section 2.
During the Progressive Era, a period of significant social activism and institutional reform from the s through the s, political actors in the United States adopted four constitutional amendments in a short span of roughly 10 years: the Sixteenth Amendment, authorizing a direct income tax 2 2 U.
XVI XVII XVIII XIX In this Essay prepared for a conference on corruption and institutional design in comparative perspective, I explore the impetus for the Seventeenth Amendment, which was in large measure driven by an effort to curb corruption in senatorial elections. The Amendment altered the way political candidates are selected for the United States Senate, moving from indirect to direct elections. Under the original terms of the Constitution, senatorial appointments were made by state legislative vote, 6 6 U.
The Amendment also establishes a procedure to fill Senate vacancies. See ibid. It took less than one year to ratify the Amendment, no small feat given that formally amending the United States Constitution requires the approval of two-thirds of the Congress to propose an amendment and three-quarters of the states to ratify it. V Article V also sketches a way for constitutional amendment by constitutional convention.
But this process has not yet been successfully used under the present Constitution. I begin, in Part 2, by exploring the difficulty of formal amendment in the United States. In Part 3, I discuss the Progressive Era, a period of time during which formal amendment seemed much easier than it is today.
In Part 4, I focus on one of these four amendments, the Seventeenth, and consider the motivations driving its adoption as well as current critiques about its effectiveness. Today, one hundred years since its entrenchment, the Seventeenth Amendment has attracted some dissidents proposing to repeal it, calling for a return to the pre-Amendment senatorial amendment rule of indirect election.
The challenge for these opponents, however, is that it is much harder today to amend the Constitution than it was when it was first adopted. This Essay is part of a larger scholarly project aimed at understanding the evolving perception and reality of formal amendment difficulty in the United States.
It is an exploratory set of reflections not intended to present definitive answers but rather to trace lines of future inquiry. The rigidity of the Constitution today derives both from the design of formal amendment rules entrenched in the constitutional text and from sources external to the text, including the geographic expansion of the Union since the adoption of the Constitution and the polarization of political parties.
Amending the United States Constitution today is so hard that it might well be impossible. There are two steps to formally amend the Constitution: proposal by a two-thirds supermajority and ratification by a three-quarters supermajority. Article V assigns each of these two tasks to different institutions-the Congress, the states, and state or national constitutional conventions-and pairs these two tasks in various ways to create four separate methods of formal amendment.
First, two-thirds of Congress may propose an amendment and three-quarters of the states may then ratify it by constitutional conventions. Second, two-thirds of Congress may propose an amendment and three-quarters of the states may ratify it by state legislative vote.
Third, two-thirds of the states may petition Congress to call a constitutional convention to propose an amendment and three-quarters of the states may then ratify it by constitutional conventions.
Fourth, two-thirds of the states may petition Congress to call a constitutional convention to propose an amendment and three-quarters of the states may ratify it by state legislative vote.
In all cases, Congress chooses the method of ratification, whether by state legislative vote or state convention. Congresspersons have introduced thousands of amendments but only thirty-three have satisfied the two-thirds congressional supermajority requirement to officially propose an amendment to the states.
Cardozo Law Review. New York, v. Of those, only twenty-seven have met the three-quarters ratification threshold to entrench the proposed amendment into the text of Constitution. The most recent formal amendment was ratified in , having been first proposed by Congress and transmitted to the states two hundred years earlier in The Twenty-Seventh Amendment prohibits Congress from giving itself a salary raise until an intervening election has been held.
XXVII Given this long delay between the proposal and ratification, some scholars have raised doubts as to the validity of the amendment, 13 13 See, e. Marshall Law Review. Chicago, v. Constitutional Commentary. Saint Paul, v. Atlanta, v. Williamsburg, v. Fordham Law Review. Legal Counsel 87 Nov. See Boehner v. Anderson, F. XXVI Prior to , formal amendment appears to have been more frequent: the first fifteen amendments were ratified from to ; from to , there were six; and from to , there were four.
The extraordinarily onerous formal amendment rules and the infrequency of modern formal amendment have prompted scholars to suggest that Article V is virtually impossible to use. Transformative Appointments. Havard Law Review. Cambridge, vol. How I Lost my Constitutional Faith. Maryland Law Review. Prince George's, v. When Should Original Meanings Matter?
Michigan Law Review. Ann Arbor, vol. Democracy and Revolution: An Enduring Relationship? Denver University Law Review. Denver, v. Constitutional Cultures, Democracy, and Unwritten Principles. University of Illinois Law Review. Champaign, v. What makes Article V so difficult to successfully use is more than just its design requiring supermajorities at both the proposal and ratification stages. It is also that the geographic expansion of the Union has exacerbated amendment difficulty by increasing the denominator for Article V amendments from thirteen in to fifty since Partial Constitutional Amendments.
University of Pennsylvania Journal of Constitutional Law. Philadelphia, v. In addition, the deepening political polarization in American society in general and specifically between the two dominant political parties has raised barriers to political agreement on fundamental changes. Explicit and Authentic Acts: Amending the U. Constitution, Lawrence: University Press of Kansas, California Law Review. Berkeley, v. Separation of Parties, Not Powers.
Harvard Law Review. Cambridge, v. This political polarization has increased amendment difficulty, making it harder to gather the supermajorities required both to propose and ratify an amendment. As hard as it is to formally amend the United States Constitution, it is not as rigid as it could be. The Structure of Constitutional Amendment Rules.
Wake Forest Law Review. The United States Constitution entrenches two provisions that once were temporarily unamendable, until the year , but this unamendability has since expired and no longer constrains constitutional amendment. Boston University Law Review, Boston, vol.
Constructive Unamendability in Canada and the United States. Supreme Court Law Review, v. It is unlikely that a state would ever agree to diminish its representation in the United States Senate. It is important to stress, however, that constructive unamendability is not permanent; a constitutional provision may flow into and out of constructive unamendability over time in light of the prevailing political climate.
Scholars have undertaken empirical studies to measure the difficulty of formal amendment. The leading study at the moment, by Donald Lutz, measures amendment difficulty in thirty-two democratic constitutions.
Principles of Constitutional Design. New York: Cambridge University Press, Elsewhere, I have argued that the Constitution of Canada is more difficult to amend than the United States Constitution, and that Canada would have ranked above the United States had Lutz included Canada in his study sample.
The Difficulty of Constitutional Amendment in Canada. Alberta Law Review. Edmonton, v. There are other empirical studies, albeit less prominent ones, of amendment difficulty. Astrid Lorenz has a published a study measuring amendment difficulty in 39 constitutional democracies, concluding that the United States Constitution ranks second behind Belgium.
How to Measure Constitutional Rigidity. Journal of Theoretical Politics. Arend Lijphart has published his own classification of amendment difficulty, a four-category ranking of 36 democratic constitutions according to the kinds of majorities required to formally amend the constitution. Patterns of Democracy. New Haven: Yale University Press, Measuring amendment difficulty is itself difficult, however. As Tom Ginsburg and James Melton have argued, convincingly I believe, amendment culture may be more important in quantifying how difficult it is to formally amend a constitution than assigning a value to various steps involved in the amendment process.
Chicago Working Papers on Law and Economics. Chicago, n. Constitutional Self-Government.
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