Seventeenth Amendment to the United States Constitution
Encyclopedia
The Seventeenth Amendment (Amendment XVII) to the United States Constitution
established direct election
of United States Senators
by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures. It also alters the procedure for filling vacancies in the Senate, allowing for state legislatures to permit their governors to make temporary appointments until a special election
can be held. Under the original provisions of the Constitution, senators were elected by state legislatures; this was intended to ensure that the Federal government contained representatives of the states, and also to provide a body not dependent on popular support that could afford to "take a more detached view of issues coming before Congress
." Over time, however, various perceived issues with these provisions, such as the risk of corruption and the potential for electoral deadlocks or a lack of representation should a seat become vacant, led to a campaign for reform.
Reformers tabled constitutional amendments in 1828, 1829 and 1855, with the issues finally reaching a head during the 1890s and 1900s. Progressives
, such as William Jennings Bryan
, called for reform to the way senators were chosen. Elihu Root
and George Frisbie Hoar
were prominent figures in the campaign to maintain the state legislative selection of senators. By 1910, 31 state legislatures had passed motions calling for reform. 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. With a campaign for a state-led constitutional amendment gaining strength, and a fear that this could result in a "runaway convention", the proposal to mandate direct elections for the Senate was finally introduced in the Congress; it was passed on May 13, 1912, ratified by the states within a year and formally declared an amendment to the Constitution on May 31, 1913 by Bryan, in his role as Secretary of State, becoming the Seventeenth Amendment.
Critics of the Seventeenth Amendment claim that by altering the way senators are elected, the states lost any representation they had in the Federal government and that this led to the gradual "slide into ignominy" of state legislatures, as well as an overextension of Federal power and the rise of special interest groups
to fill the power vacuum previously occupied by state legislatures. In addition, concerns have been raised about the power of governors to appoint temporary replacements to fill vacant senate seats, both in terms of how this provision should be interpreted and whether it should be permitted at all. Accordingly, noted public figures have expressed a desire to reform or even repeal the Seventeenth Amendment.
Originally under the Constitution
, each state legislature elected its state's senators for six-year terms. 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 to make; James Wilson
was the sole advocate of popularly electing the Senate and 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 Constitution the states were subordinated to a central government; the election of senators by the states reassured Antifederalists
that there would be some protection against the swallowing up of states and their powers by an ever-expanding Federal government, 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 to "temper" the populism of the House. While the Representatives existed in a two-year direct election cycle, the senators could afford to "...take a more detached view of issues coming before Congress." State legislatures also retained the theoretical right to "instruct" their senators to vote for or against proposals, giving them both direct and indirect representation in the Federal government. The Senate also provided 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 also saw it as an equivalent to the House of Lords
, containing the "better men" of society; it was hoped that they would provide more coolness and stability than the House of Representatives due to the senators' status.
, those in favor of popular elections for senators felt that there were primarily two issues caused by the original provisions: legislative corruption and electoral deadlocks. In terms of corruption, the general feeling was 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 eight of his fifteen votes in the Montana legislature. However, Bybee and Todd Zywicki
believe this concern was largely unfounded; there was a "dearth of hard information" on the subject, and in over a century of elections, only 10 were contested with allegations of impropriety.
Electoral deadlocks were another issue. Because state legislatures were charged with deciding who to appoint as senators, the system relied on them being able 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. Between 1891 and 1905, 46 elections were deadlocked, in 20 different 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 legislature choosing not to swear the oath of office in 1897
due to a dispute over an open Senate seat. The result was that the legislature was unable to convene for 53 days, and was forced to disband and call a new election.
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 "a good teaching experience," and Utah never again failed to elect senators. Another concern was that when deadlocks occurred, state legislatures found themselves unable to conduct their 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". There was also a feeling that state legislative elections themselves had become dominated by the business of picking senators, with legislators elected based on their intentions in senatorial elections rather than their opinions on local issues.
in 1826 proposing an amendment to provide for popular election. Similar amendments were tabled 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. The 1860s also saw the first major Congressional disputes 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 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 1907, the state of Oregon
passed the first law that based 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. On the second front, reformers worked towards a constitutional amendment, which was strongly supported in the House of Representatives but initially opposed by the Senate - Bybee notes that the state legislatures, who 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
amongst 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".
Hoar replied that the people were both a less permanent and a less trusted body than state legislatures, and that 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. It was also seen as a threat to 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.
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. 27 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, while Alabama
and Wyoming
, already states, had passed resolutions in favor of a convention without formally calling for one. To avoid a "runaway convention", in which unexpected or damaging amendments could be considered, the proposal to mandate direct elections for the Senate was finally introduced in the Congress; on May 13, 1912 it passed in the Senate by a vote of 64 to 24, with 4 not voting, and passed in the House by a vote of 238 to 39, with 110 not voting. Within a year it had been ratified by three quarters of the states, and was declared part of the Constitution by Secretary of State William Jennings Bryan on May 31, 1913, becoming the Seventeenth Amendment.
Ralph A. Rossum, writing in the San Diego Law Review, notes that the debate over the amendment's adoption lacked "any serious or systematic considerations of its potential impact on federalism...The popular press, the party platforms, the state memorials, the House and Senate debates, and the state legislative debates during ratification focused almost exclusively on expanding democracy, eliminating political corruption, defeating elitism and freeing the states from what they had come to regard as an onerous and difficult responsibility. The only three exceptions were Root, Hoar and Representative Franklin Bartlett
."
The states listed in the following table ratified the Seventeenth Amendment on the date listed. Delaware's ratification occurred nearly a century after the passage of the amendment:
The following states did not ratify the Seventeenth Amendment
is provided to fill the seat. The power to call such an election can also be granted to the governor.
Bybee argues that the Amendment has led to the gradual "slide into ignominy" of state legislatures, with the lack of a state-based check on Congress allowing the Federal government to supersede states. This was partially fueled by the senators themselves; he writes in the Northwestern University Law Review
:
Rossum, concurring, gives the New Deal
legislation as an early example of the expansion of federal regulation. Ure agrees, saying that not only are senators now free to ignore the needs of their state, "they have incentive to use their advice-and-consent powers to install Supreme Court justices who are inclined to increase federal power at the expense of state sovereignty." Donald J. Kochan, for an article in the Albany Law Review, analyzed the effect of the Seventeenth Amendment on Supreme Court decisions over the constitutionality of state legislation. He found a "statistically significant difference" in the number of cases holding state legislation unconstitutional before and after the passage of the Seventeenth Amendment, with the number of holdings of unconstitutionality increasing sixfold.
As well as a decline in the influence of the states, Ure also argues that the Seventeenth Amendment led to the rise of special interest groups
to fill the void; with state legislators replaced as the Senate's electorate by citizens, who were individually less able to monitor the actions of their senators, the senate became more susceptible to pressure from interest groups, who in turn were more influential due to the centralization of power in the Federal government; an interest group no longer needed to lobby many state legislatures, and could instead focus their efforts on the Federal government. Zywicki agrees with this, but attributes the rise in the strength of interest groups partially to the development of the US economy. The 20th century shifted economic growth to an interstate level, and with the rise of the financial power of a national rather than state-based market, the gains available to those who could tap into the market through the political process increased.
A comparison of the likely electoral results for the Senate if the Seventeenth Amendment had not been passed showed that it had "an immediate and dramatic impact on the political composition of the U.S. Senate"; if the Seventeenth Amendment had not been passed, the 1916 Senate elections, which saw the Democrats retain control of the Senate, would have actually seen the Republicans gain political control with 53 seats. Similarly, the Republican Revolution
of 1994 would never have happened; instead, the Democrats would have controlled 70 seats in the Senate to the Republicans' 30.
, the United States Court of Appeals for the Third Circuit
was faced with a situation where, following the death of Senator H. John Heinz III
of Pennsylvania
, Governor Robert P. Casey
had provided for a replacement and for a special election that did not include a primary
. A voter and prospective candidate, John S. Trinsey Jr., argued that the lack of a primary violated the Seventeenth Amendment and his right to vote under the Fourteenth Amendment
. These arguments were rejected by the Third Circuit, which ruled that the Seventeenth Amendment does not require primaries.
Another subject of analysis is whether statutes restricting the authority of governors to appoint temporary replacements are constitutional. Vikram Amar
, writing in the Hastings Constitutional Law Quarterly, claims that Wyoming's requirement that its governor fill a senatorial vacancy by nominating a person of the same party as the person who vacated that Senate seat violates the Seventeenth Amendment. This is based on the text of the Seventeenth Amendment, which states that "the legislature of any state may empower the executive thereof to make temporary appointments". The amendment only empowers the legislature to delegate the authority to the governor and, once that authority has been delegated, does not permit the legislature to intervene. The authority is to decide whether or not the governor shall have the power to appoint temporary senators, not in what fashion he should do so. Sanford Levinson
, in his rebuttal to Amar, disagrees. Levinson argues that rather than engaging in a textual
interpretation, those examining the meaning of constitutional provisions should interpret them in the fashion that provides the most benefit, and that legislatures being able to restrict gubernatorial appointment authority provides a substantial benefit to the states.
in 2009, four sitting Democratic senators left the Senate for executive branch positions: Barack Obama
(President), Joe Biden
(Vice President), Hillary Rodham Clinton
(Secretary of State), and Ken Salazar
(Secretary of the Interior). Controversies developed about the successor appointments made by Illinois Governor
Rod Blagojevich
and New York Governor David Paterson
. This created interest in abolishing Senate appointment by the governor. Accordingly, Senator Russ Feingold
of Wisconsin and Representative David Dreier
of California proposed an amendment to remove this power; Senators John McCain
and Dick Durbin became co-sponsors, as did Representative John Conyers
. The Tea Party movement
has been at the forefront of the campaign to repeal the Seventeenth Amendment entirely, arguing that it would protect states' rights
and reduce the power of the Federal government.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
established direct election
Direct election
Direct election is a term describing a system of choosing political officeholders in which the voters directly cast ballots for the person, persons or political party that they desire to see elected. The method by which the winner or winners of a direct election are chosen depends upon the...
of United States Senators
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures. It also alters the procedure for filling vacancies in the Senate, allowing for state legislatures to permit their governors to make temporary appointments until a special election
By-election
A by-election is an election held to fill a political office that has become vacant between regularly scheduled elections....
can be held. Under the original provisions of the Constitution, senators were elected by state legislatures; this was intended to ensure that the Federal government contained representatives of the states, and also to provide a body not dependent on popular support that could afford to "take a more detached view of issues coming before Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
." Over time, however, various perceived issues with these provisions, such as the risk of corruption and the potential for electoral deadlocks or a lack of representation should a seat become vacant, led to a campaign for reform.
Reformers tabled constitutional amendments in 1828, 1829 and 1855, with the issues finally reaching a head during the 1890s and 1900s. Progressives
Progressivism
Progressivism is an umbrella term for a political ideology advocating or favoring social, political, and economic reform or changes. Progressivism is often viewed by some conservatives, constitutionalists, and libertarians to be in opposition to conservative or reactionary ideologies.The...
, such as William Jennings Bryan
William Jennings Bryan
William Jennings Bryan was an American politician in the late-19th and early-20th centuries. He was a dominant force in the liberal wing of the Democratic Party, standing three times as its candidate for President of the United States...
, called for reform to the way senators were chosen. Elihu Root
Elihu Root
Elihu Root was an American lawyer and statesman and the 1912 recipient of the Nobel Peace Prize. He was the prototype of the 20th century "wise man", who shuttled between high-level government positions in Washington, D.C...
and George Frisbie Hoar
George Frisbie Hoar
George Frisbie Hoar was a prominent United States politician and United States Senator from Massachusetts. Hoar was born in Concord, Massachusetts...
were prominent figures in the campaign to maintain the state legislative selection of senators. By 1910, 31 state legislatures had passed motions calling for reform. 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. With a campaign for a state-led constitutional amendment gaining strength, and a fear that this could result in a "runaway convention", the proposal to mandate direct elections for the Senate was finally introduced in the Congress; it was passed on May 13, 1912, ratified by the states within a year and formally declared an amendment to the Constitution on May 31, 1913 by Bryan, in his role as Secretary of State, becoming the Seventeenth Amendment.
Critics of the Seventeenth Amendment claim that by altering the way senators are elected, the states lost any representation they had in the Federal government and that this led to the gradual "slide into ignominy" of state legislatures, as well as an overextension of Federal power and the rise of special interest groups
Special Interest Group
A Special Interest Group is a community with an interest in advancing a specific area of knowledge, learning or technology where members cooperate to effect or to produce solutions within their particular field, and may communicate, meet, and organize conferences...
to fill the power vacuum previously occupied by state legislatures. In addition, concerns have been raised about the power of governors to appoint temporary replacements to fill vacant senate seats, both in terms of how this provision should be interpreted and whether it should be permitted at all. Accordingly, noted public figures have expressed a desire to reform or even repeal the Seventeenth Amendment.
Text
Original composition
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, each state legislature elected its state's senators for six-year terms. Each state, regardless of size, is entitled to two senators as part of the Connecticut Compromise
Connecticut Compromise
The Connecticut Compromise was an agreement that large and small states reached during the Constitutional Convention of 1787 that in part defined the legislative structure and representation that each state would have under the United States Constitution...
between the small and large states. This contrasted with the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, a body elected by popular vote, and was described as an uncontroversial decision to make; James Wilson
James Wilson
James Wilson was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was elected twice to the Continental Congress, and was a major force in drafting the United States Constitution...
was the sole advocate of popularly electing the Senate and 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 Constitution the states were subordinated to a central government; the election of senators by the states reassured Antifederalists
Anti-Federalism
Anti-Federalism refers to a movement that opposed the creation of a stronger U.S. federal government and which later opposed the ratification of the Constitution of 1787. The previous constitution, called the Articles of Confederation, gave state governments more authority...
that there would be some protection against the swallowing up of states and their powers by an ever-expanding Federal government, providing a check
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
on the power of the Federal government.
Additionally, the longer terms and avoidance of popular election turned the Senate into a body to "temper" the populism of the House. While the Representatives existed in a two-year direct election cycle, the senators could afford to "...take a more detached view of issues coming before Congress." State legislatures also retained the theoretical right to "instruct" their senators to vote for or against proposals, giving them both direct and indirect representation in the Federal government. The Senate also provided 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 also saw it as an equivalent to the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, containing the "better men" of society; it was hoped that they would provide more coolness and stability than the House of Representatives due to the senators' status.
Issues
According to Jay BybeeJay Bybee
Jay Scott Bybee is a federal judge on the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and taught law school; his primary interests are in constitutional and administrative law....
, those in favor of popular elections for senators felt that there were primarily two issues caused by the original provisions: legislative corruption and electoral deadlocks. In terms of corruption, the general feeling was 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 eight of his fifteen votes in the Montana legislature. However, Bybee and Todd Zywicki
Todd Zywicki
Todd J. Zywicki is George Mason University Foundation Professor of Law at George Mason University School of Law, teaching in the areas of bankruptcy and contracts, where he has taught since 1998. He taught previously at the Mississippi College School of Law, where he held a faculty position from...
believe this concern was largely unfounded; there was a "dearth of hard information" on the subject, and in over a century of elections, only 10 were contested with allegations of impropriety.
Electoral deadlocks were another issue. Because state legislatures were charged with deciding who to appoint as senators, the system relied on them being able 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. Between 1891 and 1905, 46 elections were deadlocked, in 20 different 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 legislature choosing not to swear the oath of office in 1897
19th Oregon Legislative Assembly
The 19th Oregon Legislative Assembly was scheduled to convene January 11, 1897. The Senate organized, but the House failed to do so. In the House, two factions formed, neither of which had enough members to constitute a quorum....
due to a dispute over an open Senate seat. The result was that the legislature was unable to convene for 53 days, and was forced to disband and call a new election.
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 "a good teaching experience," and Utah never again failed to elect senators. Another concern was that when deadlocks occurred, state legislatures found themselves unable to conduct their normal business; James Christian Ure, writing in the South Texas Law Review
South Texas Law Review
The South Texas Law Review is a student-edited legal journal published at the South Texas College of Law. It was established in 1954.- Scope :The review publishes four issues annually, containing scholarly works as well as comments and case notes...
, 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". There was also a feeling that state legislative elections themselves had become dominated by the business of picking senators, with legislators elected based on their intentions in senatorial elections rather than their opinions on local issues.
Calls for reform
Calls for a constitutional amendment regarding Senate elections started in the early 19th century, with Henry R. StorrsHenry R. Storrs
Henry Randolph Storrs was a U.S. Representative from New York, brother of William Lucius Storrs.Born in Middletown, Connecticut, Storrs was graduated from Yale College in 1804.He studied law....
in 1826 proposing an amendment to provide for popular election. Similar amendments were tabled in 1829 and 1855, with the "most prominent" proponent being Andrew Johnson
Andrew Johnson
Andrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...
, who raised the issue in 1868 and considered the idea's merits "so palpable" that no additional explanation was necessary. The 1860s also saw the first major Congressional disputes over the issue, with the House and Senate voting to veto the appointment of John P. Stockton
John P. Stockton
John Potter Stockton was a New Jersey politician who served in the United States Senate as a Democrat.Born in Princeton, New Jersey, Stockton was the son of Robert F. Stockton, grandson of Richard Stockton and the great-grandson of Richard Stockton , both prominent New Jersey politicians...
to the Senate due to his approval by a plurality 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
Omaha Platform
The Omaha Platform was the party program adopted at the formative convention of the Populist Party held in Omaha, Nebraska on July 4 1892.-Significance of the Omaha Platform:The platform preamble was written by Ignatius L. Donnelly...
, adopted in 1892. In 1907, the state of Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
passed the first law that based the selection of U.S. senators on a popular vote. Oregon was soon followed by Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
. 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. On the second front, reformers worked towards a constitutional amendment, which was strongly supported in the House of Representatives but initially opposed by the Senate - Bybee notes that the state legislatures, who 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
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
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
William Jennings Bryan
William Jennings Bryan was an American politician in the late-19th and early-20th centuries. He was a dominant force in the liberal wing of the Democratic Party, standing three times as its candidate for President of the United States...
, while opponents counted respected figures such as Elihu Root
Elihu Root
Elihu Root was an American lawyer and statesman and the 1912 recipient of the Nobel Peace Prize. He was the prototype of the 20th century "wise man", who shuttled between high-level government positions in Washington, D.C...
and George Frisbie Hoar
George Frisbie Hoar
George Frisbie Hoar was a prominent United States politician and United States Senator from Massachusetts. Hoar was born in Concord, Massachusetts...
amongst 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".
Hoar replied that the people were both a less permanent and a less trusted body than state legislatures, and that 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. It was also seen as a threat to 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.
Adoption
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
and New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
each achieved statehood that year (bringing the total number of states to 48), and were expected to support the motion, while Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
and Wyoming
Wyoming
Wyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...
, already states, had passed resolutions in favor of a convention without formally calling for one. To avoid a "runaway convention", in which unexpected or damaging amendments could be considered, the proposal to mandate direct elections for the Senate was finally introduced in the Congress; on May 13, 1912 it passed in the Senate by a vote of 64 to 24, with 4 not voting, and passed in the House by a vote of 238 to 39, with 110 not voting. Within a year it had been ratified by three quarters of the states, and was declared part of the Constitution by Secretary of State William Jennings Bryan on May 31, 1913, becoming the Seventeenth Amendment.
Ralph A. Rossum, writing in the San Diego Law Review, notes that the debate over the amendment's adoption lacked "any serious or systematic considerations of its potential impact on federalism...The popular press, the party platforms, the state memorials, the House and Senate debates, and the state legislative debates during ratification focused almost exclusively on expanding democracy, eliminating political corruption, defeating elitism and freeing the states from what they had come to regard as an onerous and difficult responsibility. The only three exceptions were Root, Hoar and Representative Franklin Bartlett
Franklin Bartlett
Franklin Bartlett was a U.S. Representative from New York.-Biography:Bartlett was born in Worcester County, Massachusetts, and graduated from the Brooklyn Polytechnic Institute in 1865 and from Harvard University in 1869. He attended Columbia College Law School in 1869. He was admitted to the bar...
."
The states listed in the following table ratified the Seventeenth Amendment on the date listed. Delaware's ratification occurred nearly a century after the passage of the amendment:
| State | Date of ratification |
|---|---|
| Massachusetts Massachusetts The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010... |
May 22, 1912 |
| Arizona Arizona Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix... |
June 3, 1912 |
| Minnesota Minnesota Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state... |
June 10, 1912 |
| New York New York New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east... |
January 15, 1913 |
| Kansas Kansas Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south... |
January 17, 1913 |
| Oregon Oregon Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern... |
January 23, 1913 |
| North Carolina North Carolina North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte... |
January 25, 1913 |
| California California California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area... |
January 28, 1913 |
| Michigan Michigan Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake".... |
January 28, 1913 |
| Iowa Iowa Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New... |
January 30, 1913 |
| Montana Montana Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,... |
January 30, 1913 |
| Idaho Idaho Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state.... |
January 31, 1913 |
| West Virginia West Virginia West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east... |
February 4, 1913 |
| Colorado Colorado Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains... |
February 5, 1913 |
| Nevada Nevada Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its... |
February 6, 1913 |
| Texas Texas Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in... |
February 7, 1913 |
| Washington | February 7, 1913 |
| Wyoming Wyoming Wyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High... |
February 8, 1913 |
| Arkansas Arkansas Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River... |
February 11, 1913 |
| Maine Maine Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost... |
February 11, 1913 |
| Illinois Illinois Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,... |
February 13, 1913 |
| North Dakota North Dakota North Dakota is a state located in the Midwestern region of the United States of America, along the Canadian border. The state is bordered by Canada to the north, Minnesota to the east, South Dakota to the south and Montana to the west. North Dakota is the 19th-largest state by area in the U.S.... |
February 14, 1913 |
| Wisconsin Wisconsin Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is... |
February 18, 1913 |
| Indiana Indiana Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is... |
February 19, 1913 |
| New Hampshire New Hampshire New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian... |
February 19, 1913 |
| Vermont Vermont Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England... |
February 19, 1913 |
| South Dakota South Dakota South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over... |
February 19, 1913 |
| Oklahoma Oklahoma Oklahoma is a state located in the South Central region of the United States of America. With an estimated 3,751,351 residents as of the 2010 census and a land area of 68,667 square miles , Oklahoma is the 28th most populous and 20th-largest state... |
February 24, 1913 |
| Ohio Ohio Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus... |
February 25, 1913 |
| Missouri Missouri Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It... |
March 7, 1913 |
| New Mexico New Mexico New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S... |
March 13, 1913 |
| Nebraska Nebraska Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River.... |
March 14, 1913 |
| New Jersey New Jersey New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware... |
March 17, 1913 |
| Tennessee Tennessee Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area... |
April 1, 1913 |
| Pennsylvania Pennsylvania The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to... |
April 2, 1913 |
| Connecticut Connecticut Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately... |
April 8, 1913 |
| Louisiana Louisiana Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties... |
June 11, 1913 |
| Delaware Delaware Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania... |
June 25, 2010 |
The following states did not ratify the Seventeenth Amendment
- UtahUtahUtah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
(explicitly rejected amendment) - AlabamaAlabamaAlabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
- FloridaFloridaFlorida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
- GeorgiaGeorgia (U.S. state)Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
- KentuckyKentuckyThe Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
- MarylandMarylandMaryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
- MississippiMississippiMississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
- Rhode IslandRhode IslandThe state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
- South CarolinaSouth CarolinaSouth Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
- VirginiaVirginiaThe Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
Effect
With the passage of the Seventeenth Amendment, the Senate ceased being elected by state legislatures, replacing it with a system of popular election; the number of senators remained set at two per state. The Amendment also altered the process for filling vacancies: under the original constitutional provisions, state legislatures filled vacancies when a senator left office unexpectedly; the Seventeenth Amendment provides that state legislatures can grant governors the right to make temporary appointments, which last until a special electionBy-election
A by-election is an election held to fill a political office that has become vacant between regularly scheduled elections....
is provided to fill the seat. The power to call such an election can also be granted to the governor.
Impact
Northwestern University Law Review
The Northwestern University Law Review is a scholarly legal publication and student organization at Northwestern University School of Law. The Law Review's primary purpose is to publish a journal of broad legal scholarship. The Law Review publishes four issues each year...
:
Rossum, concurring, gives the New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
legislation as an early example of the expansion of federal regulation. Ure agrees, saying that not only are senators now free to ignore the needs of their state, "they have incentive to use their advice-and-consent powers to install Supreme Court justices who are inclined to increase federal power at the expense of state sovereignty." Donald J. Kochan, for an article in the Albany Law Review, analyzed the effect of the Seventeenth Amendment on Supreme Court decisions over the constitutionality of state legislation. He found a "statistically significant difference" in the number of cases holding state legislation unconstitutional before and after the passage of the Seventeenth Amendment, with the number of holdings of unconstitutionality increasing sixfold.
As well as a decline in the influence of the states, Ure also argues that the Seventeenth Amendment led to the rise of special interest groups
Special Interest Group
A Special Interest Group is a community with an interest in advancing a specific area of knowledge, learning or technology where members cooperate to effect or to produce solutions within their particular field, and may communicate, meet, and organize conferences...
to fill the void; with state legislators replaced as the Senate's electorate by citizens, who were individually less able to monitor the actions of their senators, the senate became more susceptible to pressure from interest groups, who in turn were more influential due to the centralization of power in the Federal government; an interest group no longer needed to lobby many state legislatures, and could instead focus their efforts on the Federal government. Zywicki agrees with this, but attributes the rise in the strength of interest groups partially to the development of the US economy. The 20th century shifted economic growth to an interstate level, and with the rise of the financial power of a national rather than state-based market, the gains available to those who could tap into the market through the political process increased.
A comparison of the likely electoral results for the Senate if the Seventeenth Amendment had not been passed showed that it had "an immediate and dramatic impact on the political composition of the U.S. Senate"; if the Seventeenth Amendment had not been passed, the 1916 Senate elections, which saw the Democrats retain control of the Senate, would have actually seen the Republicans gain political control with 53 seats. Similarly, the Republican Revolution
Republican Revolution
The Republican Revolution or Revolution of '94 is what the media dubbed Republican Party success in the 1994 U.S. midterm elections, which resulted in a net gain of 54 seats in the House of Representatives, and a pickup of eight seats in the Senate...
of 1994 would never have happened; instead, the Democrats would have controlled 70 seats in the Senate to the Republicans' 30.
Interpretation
In Trinsey v. PennsylvaniaTrinsey v. Pennsylvania
Trinsey v. Pennsylvania 941 F.2d 224 was a case decided by the United States Court of Appeals for the Third Circuit that confirmed the validity of special elections held without a primary under the Fourteenth and Seventeenth Amendments to the United States Constitution. The case came about due to...
, the United States Court of Appeals for the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
was faced with a situation where, following the death of Senator H. John Heinz III
H. John Heinz III
Henry John Heinz III was an American politician from Pennsylvania, a Republican member of the United States House of Representatives and the United States Senate .-Early life:...
of Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, Governor Robert P. Casey
Robert P. Casey
Robert Patrick "Bob" Casey, Sr. was an American politician from Pennsylvania. A member of the Democratic Party, he served as the 42nd Governor of Pennsylvania from 1987 to 1995...
had provided for a replacement and for a special election that did not include a primary
Primary election
A primary election is an election in which party members or voters select candidates for a subsequent election. Primary elections are one means by which a political party nominates candidates for the next general election....
. A voter and prospective candidate, John S. Trinsey Jr., argued that the lack of a primary violated the Seventeenth Amendment and his right to vote under the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. These arguments were rejected by the Third Circuit, which ruled that the Seventeenth Amendment does not require primaries.
Another subject of analysis is whether statutes restricting the authority of governors to appoint temporary replacements are constitutional. Vikram Amar
Vikram Amar
Vikram David Amar is professor and the Associate Dean for Academic Affairs at the UC Davis School of Law . Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the...
, writing in the Hastings Constitutional Law Quarterly, claims that Wyoming's requirement that its governor fill a senatorial vacancy by nominating a person of the same party as the person who vacated that Senate seat violates the Seventeenth Amendment. This is based on the text of the Seventeenth Amendment, which states that "the legislature of any state may empower the executive thereof to make temporary appointments". The amendment only empowers the legislature to delegate the authority to the governor and, once that authority has been delegated, does not permit the legislature to intervene. The authority is to decide whether or not the governor shall have the power to appoint temporary senators, not in what fashion he should do so. Sanford Levinson
Sanford Levinson
Sanford Victor Levinson is a prominent American liberal law professor and acknowledged expert on Constitutional law and legal scholar and professor of government at the University of Texas Law School...
, in his rebuttal to Amar, disagrees. Levinson argues that rather than engaging in a textual
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
interpretation, those examining the meaning of constitutional provisions should interpret them in the fashion that provides the most benefit, and that legislatures being able to restrict gubernatorial appointment authority provides a substantial benefit to the states.
Advocacy for reform
Due to the controversy over the impact of the Seventeenth Amendment, there has been advocacy for both reform and repeal of the Seventeenth Amendment. With the commencement of the Obama AdministrationPresidency of Barack Obama
The Presidency of Barack Obama began at noon EST on January 20, 2009 when he became the 44th President of the United States. Obama was a United States Senator from Illinois at the time of his victory over Arizona Senator John McCain in the 2008 presidential election...
in 2009, four sitting Democratic senators left the Senate for executive branch positions: Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
(President), Joe Biden
Joe Biden
Joseph Robinette "Joe" Biden, Jr. is the 47th and current Vice President of the United States, serving under President Barack Obama...
(Vice President), Hillary Rodham Clinton
Hillary Rodham Clinton
Hillary Diane Rodham Clinton is the 67th United States Secretary of State, serving in the administration of President Barack Obama. She was a United States Senator for New York from 2001 to 2009. As the wife of the 42nd President of the United States, Bill Clinton, she was the First Lady of the...
(Secretary of State), and Ken Salazar
Ken Salazar
Kenneth Lee "Ken" Salazar is the current United States Secretary of the Interior, in the administration of President Barack Obama. A member of the Democratic Party, he previously served as a United States Senator from Colorado from 2005 to 2009. He and Mel Martinez were the first Hispanic U.S...
(Secretary of the Interior). Controversies developed about the successor appointments made by Illinois Governor
Governor of Illinois
The Governor of Illinois is the chief executive of the State of Illinois and the various agencies and departments over which the officer has jurisdiction, as prescribed in the state constitution. It is a directly elected position, votes being cast by popular suffrage of residents of the state....
Rod Blagojevich
Rod Blagojevich
Rod R. Blagojevich is an American politician who served as the 40th Governor of Illinois from 2003 to 2009. A Democrat, Blagojevich was a State Representative before being elected to the United States House of Representatives representing parts of Chicago...
and New York Governor David Paterson
David Paterson
David Alexander Paterson is an American politician who served as the 55th Governor of New York, from 2008 to 2010. During his tenure he was the first governor of New York of African American heritage and also the second legally blind governor of any U.S. state after Bob C. Riley, who was Acting...
. This created interest in abolishing Senate appointment by the governor. Accordingly, Senator Russ Feingold
Russ Feingold
Russell Dana "Russ" Feingold is an American politician from the U.S. state of Wisconsin. He served as a Democratic party member of the U.S. Senate from 1993 to 2011. From 1983 to 1993, Feingold was a Wisconsin State Senator representing the 27th District.He is a recipient of the John F...
of Wisconsin and Representative David Dreier
David Dreier
David Timothy Dreier is the U.S. Representative for , serving in Congress since 1981. He is a member of the Republican Party.-Early life, education, and business career:...
of California proposed an amendment to remove this power; Senators John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
and Dick Durbin became co-sponsors, as did Representative John Conyers
John Conyers
John Conyers, Jr. is the U.S. Representative for , serving since 1965 . He is a member of the Democratic Party...
. The Tea Party movement
Tea Party movement
The Tea Party movement is an American populist political movement that is generally recognized as conservative and libertarian, and has sponsored protests and supported political candidates since 2009...
has been at the forefront of the campaign to repeal the Seventeenth Amendment entirely, arguing that it would protect states' rights
States' rights
States' rights in U.S. politics refers to political powers reserved for the U.S. state governments rather than the federal government. It is often considered a loaded term because of its use in opposition to federally mandated racial desegregation...
and reduce the power of the Federal government.