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1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
2. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointment until the people fill the vacancies by election as the legislature may direct.
3. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Landmark Legislation: The Seventeenth Amendment to the Constitution
Voters have selected U.S. senators in the privacy of the voting booth since 1913. This system of &ldquodirect election&rdquo was not what the framers of the U.S. Constitution had in mind, however, when they met at the Constitutional Convention in 1787. Article I, section 3 of the U.S. Constitution, as written by the framers, provided for election of senators by state legislatures.
As early as 1826, resolutions calling for direct popular election of senators appeared in the House of Representatives, but none succeeded. In 1866 Congress passed a law to regulate the time and procedure for electing senators, in response to disputed elections in Indiana and New Jersey, but left intact election by state legislatures.
Following the Civil War, disputes among state legislators over Senate elections resulted in numerous deadlocks, leaving some Senate seats vacant for long periods of time. The Delaware legislature reached a stalemate in 1895, taking 217 ballots over a period of 114 days. Delaware remained without representation in the U.S. Senate for two years. In light of such problems, reformers in many states began calling for a change to the system of electing senators. In Oregon, for example, a number of measures were enacted in the early 20th century allowing voters to express their choice for senator. Other states followed this &ldquoOregon Plan&rdquo and instituted their own version of election reform.
A turning point came in 1906, when publisher William Randolph Hearst, a proponent of direct election, hired novelist David Graham Phillips to write a number of articles on the subject. Published in Cosmopolitan magazine in 1906, Phillips&rsquo series, &ldquoThe Treason of the Senate,&rdquo offered an unsympathetic (and largely fictionalized) account of senators as pawns of industrialists and financiers. The articles further galvanized public support for reform.
In 1911 Senator Joseph Bristow of Kansas offered a Senate resolution to amend the Constitution, and soon other senators called for reform. Senator William Borah of Idaho, himself a product of a state-based system of direct election, strongly supported the measure. In fact, by 1912, as many as 29 states elected U.S. senators either as nominees of their party's primary or in a general election. These popularly elected senators became outspoken proponents for a direct election process.
Following Senate passage of the amendment on June 12, 1911, Bristow&rsquos resolution moved to the House of Representatives, which approved it, and then to the states for ratification. Connecticut's approval on April 8, 1913, gave the Seventeenth Amendment the required three-fourths majority needed for ratification. Augustus Bacon of Georgia was the first senator directly elected under the terms of the Seventeenth Amendment, on July 15, 1913. The following year marked the first time that all senatorial elections were held by popular vote.
The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase &ldquochosen by the Legislature thereof&rdquo with &ldquoelected by the people thereof.&rdquo In addition, it allows the governor or executive authority of each state, if authorized by that state&rsquos legislature, to appoint a senator in the event of a vacancy, until a general election occurs.
Robert C. Byrd, The Senate, 1789-1989 , Volume 1 (Washington, D.C.: GPO, 1988).
George H. Haynes, "Election of Senators by State Legislatures," chap. 3 in The Senate of the United States , Volume I (Boston: Houghton Mifflin Company, 1938).
C. H. Hoebeke, The Road to Mass Democracy: Original Intent and the Seventeenth Amendment (New Brunswick, NJ: Transaction Publishers, 1995).
Notification of the Ratification of the 17th Amendment to the Constitution, by Secretary of State William Jennings Bryan, May 31, 1913
Populist leader William Jennings Bryan had been a long time supporter of direct election. As Secretary of State in 1913, he announced via this notification that three-quarters of the states had ratified the proposed amendment for direct election of senators, and therefore it “had become valid to all intents and purposes as a part of the Constitution of the United States.”
Notification of the Ratification of the 17th Amendment to the Constitution, by Secretary of State William Jennings Bryan, May 31, 1913 various papers of the 63rd Congress (SEN 63-M4) Records of the United States Senate, Record Group 46 National Archives, Washington, DC.
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The States Force Congress to Act
When the Senate continued to resist the growing public demand for the direct election of senators, several states invoked a rarely-used constitutional strategy. Under Article V of the Constitution, Congress is required to call a constitutional convention for the purpose of amending the Constitution whenever two-thirds of the states demand it to do so. As the number of states applying to invoke Article V neared the two-thirds mark, Congress decided to act.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. 
Original composition Edit
Originally, under Article I, § 3, Clauses 1 and 2 of the Constitution, each state legislature elected its state's senators for a six-year term.  Each state, regardless of size, is entitled to two senators as part of the Connecticut Compromise between the small and large states.  This contrasted with the House of Representatives, a body elected by popular vote, and was described as an uncontroversial decision at the time, James Wilson was the sole advocate of popularly electing the Senate, but his proposal was defeated 10–1.  There were many advantages to the original method of electing senators. Prior to the Constitution, a federal body was one where states effectively formed nothing more than permanent treaties, with citizens retaining their loyalty to their original state. However, under the new Constitution, the federal government was granted substantially more power than before. Having the state legislatures elect the senators reassured anti-federalists that there would be some protection against the federal government's swallowing up states and their powers,  and providing a check on the power of the federal government. 
Additionally, the longer terms and avoidance of popular election turned the Senate into a body that could counter the populism of the House. While the representatives operated in a two-year direct election cycle, making them frequently accountable to their constituents, the senators could afford to "take a more detached view of issues coming before Congress".  State legislatures retained the theoretical right to "instruct" their senators to vote for or against proposals, thus giving the states both direct and indirect representation in the federal government.  The Senate was part of a formal bicameralism, with the members of the Senate and House responsible to completely distinct constituencies this helped defeat the problem of the federal government being subject to "special interests".  Members of the Constitutional Convention considered the Senate to be parallel to the British House of Lords as an "upper house", containing the "better men" of society, but improved upon as they would be conscientiously chosen by the upper houses of state legislatures for fixed terms, and not merely inherited for life as in the British system, subject to a monarch's arbitrary expansion. It was hoped they would provide abler deliberation and greater stability than the House of Representatives due to the senators' status. 
According to Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, those in favor of popular elections for senators believed two primary problems were caused by the original provisions: legislative corruption and electoral deadlocks.  There was a sense that senatorial elections were "bought and sold", changing hands for favors and sums of money rather than because of the competence of the candidate. Between 1857 and 1900, the Senate investigated three elections over corruption. In 1900, for example, William A. Clark had his election voided after the Senate concluded that he had bought votes in the Montana legislature. But analysts Bybee and Todd Zywicki believe this concern was largely unfounded there was a "dearth of hard information" on the subject.  In more than a century of legislative elections of U.S. senators, only ten cases were contested for allegations of impropriety. 
Electoral deadlocks were another issue. Because state legislatures were charged with deciding whom to appoint as senators, the system relied on their ability to agree. Some states could not, and thus delayed sending representatives to Congress in a few cases, the system broke down to the point where states completely lacked representation in the Senate.  Deadlocks started to become an issue in the 1850s, with a deadlocked Indiana legislature allowing a Senate seat to sit vacant for two years.  The tipping point came in 1865 with the election of John P. Stockton (D-NJ), which happened after the New Jersey legislature changed its rules regarding the definition of a quorum. 
In 1866, Congress acted to standardize a two-step process for Senate elections.  In the first step, each chamber of the state legislature would meet separately to vote. The following day, the chambers would meet in "joint assembly" to assess the results, and if a majority in both chambers had voted for the same person, he would be elected. If not, the joint assembly would vote for a senator, with each member receiving a vote. If no person received a majority, the joint assembly was required to keep convening every day to take at least one vote until a senator was elected.  Nevertheless, between 1891 and 1905, 46 elections were deadlocked across 20 states  in one extreme example, a Senate seat for Delaware went unfilled from 1899 until 1903.  The business of holding elections also caused great disruption in the state legislatures, with a full third of the Oregon House of Representatives choosing not to swear the oath of office in 1897 due to a dispute over an open Senate seat. The result was that Oregon's legislature was unable to pass legislation that year. 
Zywicki again argues that this was not a serious issue. Deadlocks were a problem, but they were the exception rather than the norm many legislatures did not deadlock over elections at all. Most of those that did in the 19th century were the newly admitted western states, which suffered from "inexperienced legislatures and weak party discipline . as western legislatures gained experience, deadlocks became less frequent." While Utah suffered from deadlocks in 1897 and 1899, they became what Zywicki refers to as "a good teaching experience", and Utah never again failed to elect senators.  Another concern was that when deadlocks occurred, state legislatures were unable to conduct their other normal business James Christian Ure, writing in the South Texas Law Review, notes that this did not in fact occur. In a deadlock situation, state legislatures would deal with the matter by holding "one vote at the beginning of the day—then the legislators would continue with their normal affairs". 
Eventually, legislative elections held in a state's Senate election years were perceived to have become so dominated by the business of picking senators that the state's choice for senator distracted the electorate from all other pertinent issues.  Senator John H. Mitchell noted that the Senate became the "vital issue" in all legislative campaigns, with the policy stances and qualifications of state legislative candidates ignored by voters who were more interested in the indirect Senate election.  To remedy this, some state legislatures created "advisory elections" that served as de facto general elections, allowing legislative campaigns to focus on local issues. 
Calls for reform Edit
Calls for a constitutional amendment regarding Senate elections started in the early 19th century, with Henry R. Storrs in 1826 proposing an amendment to provide for popular election.  Similar amendments were introduced in 1829 and 1855, with the "most prominent" proponent being Andrew Johnson, who raised the issue in 1868 and considered the idea's merits "so palpable" that no additional explanation was necessary.  As noted above, in the 1860s, there was a major congressional dispute over the issue, with the House and Senate voting to veto the appointment of John P. Stockton to the Senate due to his approval by a plurality of the New Jersey Legislature rather than a majority. In reaction, the Congress passed a bill in July 1866 that required state legislatures to elect senators by an absolute majority. 
By the 1890s, support for the introduction of direct election for the Senate had substantially increased, and reformers worked on two fronts. On the first front, the Populist Party incorporated the direct election of senators into its Omaha Platform, adopted in 1892.  In 1908, Oregon passed the first law basing the selection of U.S. senators on a popular vote. Oregon was soon followed by Nebraska.  Proponents for popular election noted that ten states already had non-binding primaries for Senate candidates,  in which the candidates would be voted on by the public, effectively serving as advisory referenda instructing state legislatures how to vote  reformers campaigned for more states to introduce a similar method.
William Randolph Hearst opened a nationwide popular readership for direct election of U.S. senators in a 1906 series of articles using flamboyant language attacking "The Treason of the Senate" in his Cosmopolitan magazine. David Graham Philips, one of the "yellow journalists" whom President Teddy Roosevelt called "muckrakers", described Nelson Aldrich of Rhode Island as the principal "traitor" among the "scurvy lot" in control of the Senate by theft, perjury, and bribes corrupting the state legislatures to gain election to the Senate. A few state legislatures began to petition the Congress for direct election of senators. By 1893, the House had the two-thirds vote for just such an amendment. However, when the joint resolution reached the Senate, it failed from neglect, as it did again in 1900, 1904 and 1908 each time the House approved the appropriate resolution, and each time it died in the Senate. 
On the second national legislative front, reformers worked toward a constitutional amendment, which was strongly supported in the House of Representatives but initially opposed by the Senate. Bybee notes that the state legislatures, which would lose power if the reforms went through, were supportive of the campaign. By 1910, 31 state legislatures had passed resolutions calling for a constitutional amendment allowing direct election, and in the same year ten Republican senators who were opposed to reform were forced out of their seats, acting as a "wake-up call to the Senate". 
Reformers included William Jennings Bryan, while opponents counted respected figures such as Elihu Root and George Frisbie Hoar among their number Root cared so strongly about the issue that after the passage of the Seventeenth Amendment he refused to stand for re‑election to the Senate.  Bryan and the reformers argued for popular election through highlighting perceived flaws with the existing system, specifically corruption and electoral deadlocks, and through arousing populist sentiment. Most important was the populist argument that there was a need to "Awaken, in the senators . a more acute sense of responsibility to the people", which it was felt they lacked election through state legislatures was seen as an anachronism that was out of step with the wishes of the American people, and one that had led to the Senate becoming "a sort of aristocratic body—too far removed from the people, beyond their reach, and with no special interest in their welfare".  The settlement of the West and continuing absorption of hundreds of thousands of immigrants expanded the sense of "the people".
Hoar replied that "the people" were both a less permanent and a less trusted body than state legislatures, and moving the responsibility for the election of senators to them would see it passing into the hands of a body that "[lasted] but a day" before changing. Other counterarguments were that renowned senators could not have been elected directly and that, since a large number of senators had experience in the House (which was already directly elected), a constitutional amendment would be pointless.  The reform was considered by opponents to threaten the rights and independence of the states, who were "sovereign, entitled . to have a separate branch of Congress . to which they could send their ambassadors." This was countered by the argument that a change in the mode in which senators were elected would not change their responsibilities. 
The Senate freshman class of 1910 brought new hope to the reformers. Fourteen of the thirty newly elected senators had been elected through party primaries, which amounted to popular choice in their states. More than half of the states had some form of primary selection for the Senate. The Senate finally joined the House to submit the Seventeenth Amendment to the states for ratification, nearly ninety years after it first was presented to the Senate in 1826. 
By 1912, 239 political parties at both the state and national level had pledged some form of direct election, and 33 states had introduced the use of direct primaries.  Twenty-seven states had called for a constitutional convention on the subject, with 31 states needed to reach the threshold Arizona and New Mexico each achieved statehood that year (bringing the total number of states to 48), and were expected to support the motion. Alabama and Wyoming, already states, had passed resolutions in favor of a convention without formally calling for one. 
Proposal in Congress Edit
In 1911, the House of Representatives passed House Joint Resolution 39 proposing a constitutional amendment for direct election of senators. The original resolution passed by the House contained the following clause: 
The times, places, and manner of holding elections for Senators shall be as prescribed in each State by the legislature thereof.
This so-called "race rider" clause would have strengthened the powers of states over senatorial elections and weakened those of Congress by overriding Congress's power to override state laws affecting the manner of senatorial elections. 
Since the turn of the century, most blacks in the South, and many poor whites, had been disenfranchised by state legislatures passing constitutions with provisions that were discriminatory in practice. This meant that their millions of population had no political representation. Most of the South had one-party states. When the resolution came before the Senate, a substitute resolution, one without the rider, was proposed by Joseph L. Bristow of Kansas. It was adopted by a vote of 64 to 24, with four not voting.  Nearly a year later, the House accepted the change. The conference report that would become the Seventeenth Amendment was approved by the Senate 42 to 36 on April 12, 1912, and by the House 238 to 39, with 110 not voting on May 13, 1912.
The History of A Mistake
When the Constitutional Convention first considered how Congress would be constructed, James Wilson proposed that the people should directly elect their senators, rather than state legislatures. His idea was soundly defeated by a 10-1 vote. Indeed, scholars have since noted that legislative election of senators “was one of the few non-controversial decisions reached by the Constitutional Convention.” None of the state ratification conventions objected to the proposal either.
Yet in the late 1800s, the Progressive movement turned its ire on this constitutional provision. With their unshakeable belief in the moral rightness of democracy, progressives argued that legislative election of senators led inevitably to state-level political corruption. Their revisionist historians painted a picture of a vast political conspiracy, in which state elections were regularly bought and sold by local party machines to elect senators who would serve the interests of the elites above those of the people. (For all you film buffs, they argued that the conflict portrayed in the excellent movie “Mr. Smith Goes To Washington” was the rule, rather than the exception.)
But as many historians have recognized, the data simply wasn’t on progressives’ side. Only three senatorial elections were investigated for corruption between 1857 and 1900. And over more than a century of legislative election of senators, only ten total elections were contested for impropriety of any sort. State electoral deadlocks over selection of federal senators were also rarer than progressives claimed, and most state legislatures dealt with such disagreements while continuing to govern.
The progressives dealt with this roadblock to their agenda by spreading “fake news.” Media mogul William Randolph Hearst and his “yellow journalists” spread the idea of widespread senatorial corruption using flamboyant headlines like “The Treason of the Senate.”
Over time, people began to believe the lie. In a grassroots rebellion, they elected state representatives who supported direct election of senators. When 31 states passed resolutions calling for an amendment, Congress finally capitulated.
Thus, out of manufactured hysteria over nonexistent corruption, the Seventeenth Amendment was born, robbing states of their most notable constitutional check on federal lawmaking in the name of “democracy.” Ever since, states have been reduced to hiring lobbyists to influence federal policy. In 2009, state and local governments spent more than $83.5 million on such efforts.
Fifth Amendment (ratified 1791)
In addition to the famous right to refuse to testify against oneself (or “plead the Fifth”), the Fifth Amendment establishes other key rights for defendants in criminal proceedings, including the need for formal accusation by a grand jury and the protection against double jeopardy, or being tried for the same crime twice. It also requires the federal government to pay just compensation for any private property it takes for public use. Most importantly, the Fifth Amendment guarantees that no one can face criminal punishment without receiving 𠇍ue process of law,” a protection that the Supreme Court later extended under the due process clause of the 14th Amendment.
Seventeenth Amendment TIMELINE
1866 – Congress regulates “time and procedure for electing senators
Responding to many deadlocks in state legislatures that result in U.S. 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.
1896 – Populist Party calls for direct Senate elections
In the Presidential election of 1896, 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.
1906 – Muckrakers push for reform
Muckraking magazine writers investigating corruption in government and business call for progressive reforms. Among the most notable of these is a series of articles under the title “The Treason of the Senate” that appear in William Randolph Hearst’s Cosmopolitan magazine for several months in 1906. David Graham Phillips, author of the series, charges that senators represent special interests rather than the public interest.
1907 – Oregon permits voters to designate whom they want as senator
An Oregon law permits voters to designate by referenda whom they want as senator and direct the legislature to support the popular choice. Nebraska soon follows Oregon’s lead and other states adopt reforms that permit voters to participate in the choice of U.S. senators. Several states call for a constitutional convention to amend the federal Constitution, if Congress does not act. Between 1893 and 1911, thirty-one of the thirty-two required states submit applications for a convention to amend the Constitution and allow the popular election of senators.
1911 – The Senate agrees to support a constitutional change
Although the House has long been advocating a change in the election of senators, the Senate resisted until 1911. By then at least twenty-nine states were nominating senators either in party primaries or general elections. Bowing to public demand, two-thirds of the Senate votes for an amendment sponsored by Senator Joseph Bristow of Kansas for direct election.
1914 – The first direct elections of senators are held
Following ratification of the Seventeenth Amendment, the first election of senators is held, with one-third of the Senate seats up for election. To the surprise of reformers, every incumbent running wins reelection.
1921 – Congress can regulate primary elections for Senate
A Senate candidate in Michigan’s primary election challenges the constitutionality of the Federal Corrupt Practices Act after he is convicted of violating federal limits on the amount of money that can be used in primary and general elections. In Newberry v. United States , the Supreme Court rules that although the Seventeenth Amendment changed who elects senators (from state legislators to voters in each state), it did not modify Article I, section 4 of the Constitution. That provision gives Congress the power to determine the time, place, and manner of holding Senate elections.
1928 – A Senate committee can investigate Senate elections
In Reed v. County Commissioners of Delaware County , the U.S. Supreme Court holds that a special committee of the Senate has the power to investigate a Pennsylvania Senate election. As the Seventeenth Amendment acknowledges a federal right to elect senators, the Senate is authorized to protect these rights.
1964 – The Supreme Court requires one person, one vote
The U.S. Supreme Court, in Gray v. Sanders , strikes down Georgia’s “county unit” voting system as unconstitutional. Relying in part on the language of the Seventeenth Amendment, that senators are to be chosen “by the people,” a voter in the primary Senate election had challenged the state system in which small rural districts are treated relatively the same as larger urban districts. In this system, rural voters have a much larger impact on the outcome of the election than urban voters. The Supreme Court rules that this violates the equal protection clause of the Fourteenth Amendment.
1965 – Residency requirements for voting are unconstitutional
A district court holds that a residency requirement established by the Virginia legislature as an alternative to payment of a poll tax in federal elections is an additional qualification to voting, which violates the Seventeenth Amendment and Article I, section 2 of the Constitution. In Harman v. Forssenius , the Supreme Court agrees but bases its ruling of unconstitutionality on the Twenty-fourth Amendment (which outlawed poll taxes) rather than the Seventeenth Amendment.
1986 – Independents can be barred from voting in a party primary
The Connecticut Republican Party adopts a rule that permits independent voters (those not affiliated with any party) to vote in Republican primaries for federal and statewide offices. The party then challenges a Connecticut law that requires voters to register with a party before voting in its primary. In Tashjian v. Republican Party , the Supreme Court finds that the law denies the party and its members the right to freedom of association by limiting the number of registered voters whom the party may invite to participate in the “basic function” of selecting the party’s candidates. But the Court finds that the state law does not violate the Seventeenth Amendment, as the rule establishes qualifications for voting in congressional elections that differ from the qualifications for voting in primary elections for the state legislature.
17th Amendment Mudslinging
The vigorous and timely advocacy of the enforcement of the 10th Amendment has been well chronicled in the pages of The New American and elsewhere. There are, in fact, organizations devoted exclusively to that task. While no constitutionalist worthy of the distinction can doubt the vital nature of that mission, there is another amendment whose prominence in recent headlines must concern those dedicated to the advancing of constitutional principles of freedom and good government: the 17th Amendment. That amendment required the direct election of U.S. senators by the people, thereby eliminating the election of U.S. senators by state legislatures.
&ldquoU.S. Senate candidate Joe Miller&rsquos support for repealing 17th Amendment draws criticism&rdquo is the title of an article published Wednesday in the Fairbanks (Alaska) Daily News-Miner. Joseph Wayne &ldquoJoe&rdquo Miller is an attorney and is seeking election to the seat in the Senate occupied for over seven years by the woman he defeated in this year&rsquos Republican primary, Lisa Murkowski. (Two days after the November 2 election, it was still unclear who won.)
Miller, a native of Kansas, moved to the &ldquoLast Frontier&rdquo after graduating from Yale Law School to accept an associate attorney position in Anchorage. He has since practiced in Alaska and served in various local and state judicial appointments.
Responding to a question posed by an attendee at a town hall meeting in Fairbanks, Miller denounced Washington, D.C., as a place where members of Congress are &ldquotreated like royalty.&rdquo He recommended the imposition of term limits and the repeal of the 17th Amendment as treatments for the aristocratic fever that has afflicted so many in our nation&rsquos capital.
Predictably, Miller&rsquos comments have siphoned ounces of ink from the pens of pundits and pontificators. The usual coterie of soi-disant defenders of the people has begun its vilification of Miller via the broadcast mockery of his beliefs. For example:
From the Seattle Post-Intelligencer: &ldquoTea Party candidate boils over.&rdquo
From CNN: &ldquoPolitical Theater: Telling Tales about the 17th Amendment.&rdquo
The mainstream media is not alone in its renouncement of Joe Miller&rsquos (apparently) controversial statement. Miller&rsquos opponent in the campaign for senator from Alaska is Democrat Scott McAdams. McAdams is quoted in the Daily News-Miner as accusing Miller of trying to &ldquodeny Alaskans their constitutional rights.&rdquo He told the paper, &ldquoThis is just one more example of how Joe [Miller] wants to repeal the 20th Century and hurt Alaska. Alaskans embrace their power to elect their candidates &mdash Joe should know that &mdash that&rsquos the American &mdash and the Alaskan way.&rdquo
While such a reaction from one&rsquos political foe is perfunctory, the vituperative response from Senator Lisa Murkowsi smacks of sour grapes and is ill-suited to one of her station. &ldquoWe have [seen] Joe Miller take some extraordinary positions in this campaign,&rdquo Murkowski told the Fairbanks paper, &ldquobut I never imagined he would support disenfranchising himself and every other Alaskan. Joe is no longer content with simply taking away federal support for Alaskan families, now he wants to take away their right to select our United States senators.&rdquo
It is noteworthy to remind readers that despite her electoral defeat in the primary, Murkowski refused to go gently into that good night of private life, and initiated a write-in campaign to retain her seat.
This effort and the tenor of her remarks regarding Miller&rsquos alleged zeal for the disenfranchisement of every Alaskan is ironical in light of the fact that Murkowski&rsquos career in the Senate did not begin after a popular election, the method she so fervently defends. In fact, Murkowski became a senator after her father, Frank Murkowski, then governor of Alaska, appointed her to the office in 2002.
There are other, more prominent elected representatives who have proposed the repeal of the 17th Amendment and a re-enfranchisement of the state legislatures.
On April 28, 2004, Georgia Senator Zell Miller stood in the well of the Senate and introduced Senate Joint Resolution 35, a bill to repeal the 17th Amendment to the Constitution. Senator Miller&rsquos remarks accompanying the introduction of the bill are worthy of restatement:
The 17th amendment was the death of the careful balance between State and Federal Government. As designed by that brilliant and very practical group of Founding Fathers, the two governments would be in competition with each other and neither could abuse or threaten the other. The election of Senators by the State legislatures was the linchpin that guaranteed the interests of the States would be protected.
Today state governments have to stand in line because they are just another one of the many special interests that try to sget enators to listen to them, and they are at an extreme disadvantage because they have no PAC.
You know what the great historian Edward Gibbons said of the decline of the Roman Empire. I quote: &lsquo&lsquoThe fine theory of a republic insensibly vanished.&rsquo&rsquo
That is exactly what happened in 1913 when the state legislatures, except for Utah and Delaware, rushed pell-mell to ratify the popular 17th Amendment and, by doing so, slashed their own throats and destroyed federalism forever. It was a victory for special-interest tyranny and a blow to the power of state governments that would cripple them forever.
Instead of senators who thoughtfully make up their own minds as they did during the Senate&rsquos greatest era of Clay, Webster, and Calhoun, we now have too many senators who are mere cat&rsquos-paws for the special interests. It is the Senate&rsquos sorriest of times in its long, checkered, and once glorious history.
Having now jumped off the Golden Gate Bridge of political reality, before I hit the water and go splat, I have introduced a bill that would repeal the 17th amendment. I use the word &lsquo&lsquowould,&rsquo&rsquo not &lsquo&lsquowill,&rsquo&rsquo because I know it doesn&rsquot stand a chance of getting even a single cosponsor, much less a single vote beyond my own.
Abraham Lincoln, as a young man, made a speech in Springfield, IL, in which he called our founding principles &lsquo&lsquoa fortress of strength.&rsquo&rsquo Then he went on to warn, and again I quote, that they &lsquo&lsquowould grow more and more dim by the silent artillery of time.&rsquo&rsquo
The guns in the battle for the salvation of our Republic may have been silenced by the enemies of freedom and constitutional good government, but it wasn&rsquot always so. We may read in the pages of the early years of our nation of the vigorous defense of America&rsquos first principles.
Edmund Randolph, governor of Virginia and representative of that state at the Constitutional Convention, said that the object of the particular mode of electing senators was to &ldquocontrol the democratic branch.&rdquo Recognizing the terrors historically accompanying any government with even a slight tincture of democracy, Randolph admonished that &ldquoa firmness and independence may be the more necessary in this branch, as it ought to guard the Constitution against encroachments of the Executive who will be apt to form combinations with the demagogues of the popular branch.&rdquo
James Madison, known appropriately as the Father of the Constitution, said that &ldquothe use of the Senate is to consist in its proceeding with more coolness, with more system, and more wisdom than the popular branch&rdquo and to &ldquoprotect the people against the transient impressions in which they themselves might be led.&rdquo
During the debates on the matter in the Convention, Luther Martin of Maryland said it plainly: &ldquoThe Senate is to represent the states.&rdquo
Finally, Roger Sherman, an influential delegate to the Constitutional Convention of 1787, wrote in a letter to John Adams: &ldquoThe senators, being &hellip dependent on [state legislatures] for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States.&rdquo
With Sherman&rsquos assessment in mind, is it reasonable to regard the abolition of this check on the legislative and executive branches of the central government as a purposeful tactic of the enemies of our Constitution? That is to say, with the &ldquoartillery&rdquo of state legislatures silenced by the 17th Amendment, the ability of the legislative and executive branches to collude in the usurpation of power would be significantly increased. Indeed, the &ldquocombination&rdquo of demagogues in the executive and legislative branches has formed and has thrived in the post-17th Amendment electoral environment.
Not all the opposition to repeal of the 17th Amendment can be ascribed to the machinations of plutocrats and their allies. In fact, if polled, it is likely that most Americans would declare a preference to preserve the post-17th Amendment representative scheme.
There must be provisional accommodation for the innocent ignorance of most Americans of the fundamental principles of federalism violated by the enactment of the 17th Amendment. After all, the prevention of the dissemination of such vital information has irrefutably been a primary aim of executive branch bureaucrats unlawfully afforded superintendence over the education of the nation&rsquos children.
The words of the Founders rehearsed above are a solid foundation upon which to build our understanding of the miracle that is our Constitution and its structure. Onto that foundation we should inculcate our children with an awe and appreciation for the remarkable and inimitable plans drawn by our Founders. We must teach them that these men spent countless hours in the laboratory of self-government working out the most stable composition of a republican and federal system of government.
The specific ingredients in the American Experiment were very carefully chosen and precisely measured by the political scientists that took the lead in founding our Republic. The concoction they produced proved both stable and potent. Students of this grand endeavor must be warned that fiddling with that formula, especially by those not as well versed in the history of the disastrous outcomes of other similar experiments by statesmen of the past, will have predictable and pernicious results.
So, what of this charge of wanting to disenfranchise the voters of Alaska? Would a return to the original, pre-17th Amendment construction of the Constitution deny citizens of a state the right to elect their representatives? Yes and no.
The 17th Amendment to the U.S. Constitution was ratified in 1913 and reads in relevant part: &ldquoThe Senate of the United States shall be composed of two Senators from each State, elected by the people thereof.&rdquo As set forth in the original text of Article I, senators were to be &ldquochosen by the Legislature&rdquo of each state. Inarguably, then, the 17th Amendment stripped the state legislatures of the responsibility of electing senators to the national government and placed it in the hands of the people. It should be recalled that the American legislative branch was not designed as a parliament of representatives of the people, rather as a congress &mdash a bicameral assembly of representatives of the people and representatives of the sovereign states. This amalgamation of the two authorities whose measured cession of sovereignty created the national government meant that the national government could not impose any new law on the people or the states without the consent of both the people&rsquos and the states&rsquo representatives in the bicameral legislature.
That &ldquothe people&rdquo are the ultimate sovereign in the United States is not to be seriously debated. The people of all lands are &ldquoendowed by their Creator&rdquo with the right of self-government, a right alienable only according to the constitutional expression of their will and pleasure to do so. Furthermore, as governments are the creation of men, governments are endowed only with those specific and very limited powers ceded to them by those whose sovereign will gave them life &mdash the people.
In the case of the Senate, however, it was not &ldquothe people&rsquos&rdquo interests that were meant to be advocated. That role, the role of representing the manifest will of the people, was given to the House of Representatives. It is aphoristic to say that the Framers of the Constitution of the United States created a national government of separated powers and checks and balances. While at once establishing a dynamic and robust central authority, the Founding Fathers in their wisdom tempered the natural tendency of such a government to accumulate authority by relying upon the equally sovereign states and the retardant effect they would have upon this tendency of consolidated governments to grow unwieldy and tyrannical.
To that end, on Thursday, June 7, 1787, the delegates to the Constitutional Convention in Philadelphia voted unanimously to place the election of the members of the national Senate in the seasoned and popularly elected representatives in the various state legislatures. The river of representation of the people was to be distilled through several layers of elected representation (the definition of federalism). The people were to be represented in the new Senate as citizens of the states. Thus, removed as it was by degrees from the heat and mercurial temperament of the momentary passions of the people, said Edmund Randolph, the Senate would act as a check against the &ldquoturbulence and follies of democracy.&rdquo
Alas, as of April 8, 1913, that check has been abolished and the nation was pushed closer toward falling into one of the innumerable chasms of democracy. The Senate no longer reflects the political philosophy of our Founding Fathers that the states were best suited to respond to the legitimate needs of their citizens. The interests of the &ldquoUnited States&rdquo have been sacrificed on the altar of popular democracy. Sadly, our Founders knew that all the republics of history died on that altar and they, through the mechanism of federalism and states&rsquo rights, sought to obviate this end for the republic they were forming.
While news of a high-profile senatorial candidate speaking out publicly in favor of the repeal of the 17th Amendment is attention grabbing, the prosaic defense of the Constitution falls to those with pens consecrated to the abolition of tyranny and the restoration of the full panoply of republican institutions as set forth by the Constitution.
For now, we see how the repeal of one amendment (the 17th) and the re-establishing of another (the 10th), our Republic can be put back on the path that leads to smaller government and constitutional order.
To that end, constitutionalists welcome the aid of Joe Miller and others to the cause of freedom. Those already committed to this endeavor have formed a two-flanked attack against the monster of democracy and its predictable progeny &mdash mob rule: from one side, the restoration of the rights of states to govern themselves as expressed by the 10th Amendment, and from the other, the repeal of the 17th Amendment that robbed the states of the rightful representation of their particular interests in the halls of Congress. The 17th Amendment has deprived our Republic of a crucial counterbalance to the aggressive accumulation of power that comes from the destructive devices that are the means and ends of the combination of demagogues that for decades has populated the executive and legislative branches.
The Seventeenth Amendment
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 &ldquodouble advantage,&rdquo both &ldquofavoring 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.&rdquo 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&mdashthe people&rsquos representatives in the House and the state legislatures in the Senate&mdashthe composition of the Senate was seen as essential to the system of bicameralism, which would require &ldquothe concurrence of two distinct bodies in schemes of usurpation or perfidy.&rdquo
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&rsquos 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&mdashin which state legislatures would deliberate over the selection of Senators&mdashbegan to fray. First, politicians seeking Senate seats began campaigning for state legislative candidates in a process known as the &ldquopublic canvass.&rdquo 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 &ldquoOregon System,&rdquo 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 &ldquoone person, one vote&rdquo 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, &ldquoThe Treason of the Senate,&rdquo 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&rsquot 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&rsquos 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&mdashparticularly its effect on appointments following vacancies&mdashhave 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.