Skip to main content

Rossum – The Seventeenth Amendment and the Death of Federalism

The Seventeenth Amendment
and the Death of Federalism

Ralph A. Rossum
Salvatori Professor of American Constitutionalism
Claremont McKenna College
Claremont, California

Prepared for Delivery at the Panel on
“Republicanism, Federalism, and the Constitution”
of the 2003 Fall Regional Meeting of the Philadelphia Society

Williamsburg Woodlands
Williamsburg, Virginia
October 3-4, 2003


My comments today are based
largely on a book I recently completed for Lexington Books that explores the
Seventeenth Amendment and the death of federalism.[i]
Entitled Federalism, the Supreme Court and the Seventeenth Amendment: The
Irony of Constitutional Democracy,
it is also a critical commentary on the
spate of controversial federalism decisions recently handed down by an activist
U.S. Supreme Court. Thirteen times since 1976 (and, with much-greater frequency,
twelve times since 1992), the Court has invalidated federal laws—many of them
passing both houses of Congress by wide margins—in order to preserve what it
has described as “the original federal design.”[ii]
In the book, I challenge the Court’s fundamental jurisprudential assumptions
about federalism and argue that (1) the framers did not expect federalism to be
protected by an activist Court but rather by constitutional structure—in
particular, by the mode of electing the United States Senate;[iii]
(2) the political and social forces that culminated in the adoption and
ratification of the Seventeenth Amendment eliminated that crucial structural
protection and thereby altered the very meaning of federalism itself; and (3),
as a consequence, the original federal design has been amended out of existence
and is no longer controlling—in the post-Seventeenth Amendment era, it is no
more a part of the Constitution the Supreme Court is called upon to apply than,
for example, in the post-Thirteen Amendment era, the Constitution’s original
fugitive slave clause.

I argue in the book that the framers understood that federalism would be
protected by the manner of electing (and, perhaps most importantly, re-electing)
the Senate. However, the adoption and ratification of the Seventeenth Amendment,
providing for direct election of the Senate,[iv]
changed all that.

The Seventeenth Amendment was ultimately approved by the United States
Congress and ratified by the states to make the Constitution more democratic.
Progressives argued forcefully, persistently, and ultimately successfully that
the democratic principle required the Senate to be elected directly by the
people rather than indirectly through their state legislatures. The consequences
of the ratification of the Seventeenth Amendment on federalism, however, went
completely unexplored, and the people, in their desire to make the Constitution
more democratic, inattentively abandoned what the framers regarded as the
crucial constitutional means for protecting the federal/state balance and the
interests of the states as states.

Following ratification of the Seventeenth Amendment, there was a rapid
growth of the power of the national government, with the Congress enacting
measures that adversely affected the states as states[v]—measures that quite
simply the Senate previously would never have approved.[vi]
For the initial quarter of a century following the amendment’s ratification in
1913 and then again for the last quarter of a century, the United States Supreme
Court’s frequent reaction to this congressional expansion of national power at
the expense of the states was and has been to attempt to fill the gap created by
the ratification of the Seventeenth Amendment and to protect the original
federal design. It has done so by
invalidating these congressional measures on the grounds that they violate the
principles of dual federalism; go beyond the Court’s narrow construction of
the commerce clause; “commandeer” state officials to carry out certain
federal mandates; exceed Congress’s enforcement powers under Section 5 of the
Fourteenth Amendment, or, most recently, trench on the states’ sovereignty
immunity. In so doing, it has
repeatedly demonstrated its failure to appreciate that the Seventeenth Amendment
not only eliminated the primary structural support for federalism but, in so
doing, altered the very nature and meaning of federalism itself.

There is irony in all of this: An
amendment, intended to promote democracy, even at the expense of federalism, has
been undermined by an activist Court, intent on protecting federalism, even at
the expense of the democratic principle. The irony is heightened when it is
recalled that federalism was originally protected both structurally and
democratically— the Senate, after all, was elected by popularly-elected state
legislatures. Today, federalism is
protected neither structurally nor democratically—the ratification of the
Seventeenth Amendment means that the fate of traditional state prerogatives
depends entirely on either congressional sufferance (what the Court calls
“legislative grace”) or whether an occasional Supreme Court majority can be
mustered.[vii]

The book argues that federalism as it was understood by the
framers—i.e., the “original federal design”—effectively died as a result
of the social and political forces that resulted in the adoption and
ratification of the Seventeenth Amendment. The Court, however, has had trouble
learning this lesson—it took a quarter of a century
to learn it initially, and, during the most recent quarter century, it has
repeatedly forgotten it. It argues
that the Court—typically by the slimmest of majorities—has refused to
acknowledge that its efforts to revive federalism—by drawing lines between
federal and state power that the framers denied could be drawn and that they
never intended for the Court to try to draw—are merely futile attempts to
breathe life into a corpse.

My intention today is twofold: (1)
to explain why and how the framers understood that the mode of electing the
Senate (rather than reliance on the Supreme Court) would be the principal means
not only for protecting the interests of the states as states but also for
identifying the line demarcating federal from state powers; and (2) to explore
the political and social forces at work in the states that ultimately led to the
adoption and ratification of the Seventeenth Amendment and, thereby, to the
public’s inattentive alteration of the structural protection of federalism.

The framers understood that federalism would be protected
structurally—the mode of electing (and re-electing) the Senate making it in
the self-interest of senators to preserve the original federal design and to
protect the interests of states as states.[viii] The debates in the
Constitutional Convention make this abundantly clear.

On May 31, 1787, very early in the Constitutional Convention, the
delegates rejected Resolution 5 of the Virginia Plan that proposed that the
“second branch of the National Legislature ought to be elected by those of the
first,” doing so by a vote of seven states “no,” three states “yes.”
Instead on June 7, they unanimously accepted a motion by John Dickinson and
seconded by Roger Sherman providing for the appointment of the Senate by the
state legislatures.

The delegates were apparently persuaded by
Dickinson’s argument that the “sense of the States would be better collected
through their Governments than immediately from the people at large” and by
George Mason’s observation that election of the Senate by state legislatures
would provide the states with “some means of defending themselves against
encroachments of the National Government. In every other department, we have
studiously endeavored to provide for its self-defense. Shall we leave the States
alone unprovided with the means for this purpose? And what better means can we
provide than giving them some share in, or rather making them a constituent part
of, the Nat’l Establishment?”

On June 20, James Wilson, a passionate
nationalist, warned his fellow delegates that a
jealousy would exist between the State Legislatures & the General
Legislature.” He observed “that the members of the former would have views
& feelings very distinct in this respect from their constituents. A private
Citizen of a State is indifferent whether power be exercised by the Genl. or
State Legislatures, provided it be exercised most for his happiness.” On the
other hand, “[h]is representative has an interest in its being exercised by
the body to which he belongs. He will therefore view the National Legisl. with
the eye of a jealous rival.”
Wilson’s attack, however, utterly failed, not because the delegates disputed
his analysis but because they approved the outcome. Since they were
committed to preserving the
states as political entities, they found persuasive Mason’s assertions that
the states would need the “power of self-defense”
[ix]
and that “the only mode left of giving it to them was by allowing them to
appoint the second branch of the National Legislature.” Accordingly, on June
25, the Convention reaffirmed its previous decision to elect the Senate by state
legislatures by a vote of nine states “yes,” two states “no.”[x]

The service rendered to federalism by the mode of electing the Senate was
also repeatedly acknowledged and proclaimed during the ratification debates.
For example, in “An Examination of the Constitution of the United
States,” Tench Coxe, writing under the pseudonym of “An American Citizen”
in Philadelphia’s Independent Gazetteer,
noted that the members of the Senate will “feel a considerable check from the
constitutional powers of the state legislatures, whose rights they will not be
disposed to infringe, since they are the bodies to which they owe their
existence.” In the Massachusetts
Ratifying Convention, Fisher Ames described senators elected by their state
legislatures as “ambassadors of the states,” and Rufus King declared that
“the senators will have a powerful check in those men [i.e., those state
legislators] who wish for their seats, who will watch their whole conduct in the
general government, and will give alarm in case of misbehavior.”

In Federalist No. 45, Madison
declared that, since “[t]he Senate will be elected absolutely and exclusively
by the State Legislatures,” it “will owe its existence more or less to the
favor of the State Governments, and must consequently feel a dependence, which
[he regretted] is much more likely to beget a disposition too obsequious, than
too overbearing towards them.” In
Federalist No. 46, he further noted
that, if the House of Representatives were to sponsor legislation that
encroached on the authority of the states, “a few representatives of the
people would be opposed to the people themselves; or rather one set of
representatives would be contending against thirteen sets of representatives,
with the whole body of their common constituents on the side of the latter.”
The Senate, he assured his readers, would be “disinclined to invade the rights
of the individual States, or the prerogatives of their governments.”
In Federalist No. 59, Alexander
Hamilton likewise emphasized that the appointment of senators by state
legislatures secured “a place in the organization of the National
Government” for the “States in their political capacities.” He continued:
“So far as [the mode of electing the Senate] . . . may
expose the Union to the possibility of injury from the State legislatures, it is
an evil; but it is an evil which could not have been avoided without excluding
the States, in their political capacities, wholly from a place in the
organization of the national government. If this had been done, it would
doubtless have been interpreted into an entire dereliction of the federal
principle; and would certainly have deprived the State governments of that
absolute safeguard which they will enjoy under this provision.” Finally, in Federalist No. 62,
Madison praised “the appointment of senators by state legislatures” as not
only “the most congenial with the public opinion” but also “giving to
state governments such an agency in the formation of the federal government, as
must secure the authority of the former.”

During the New York Ratifying Convention, Hamilton explicitly connected
the mode of electing the Senate with the protection of the interests of the
states as states. “When you take
a view of all the circumstances which have been recited, you will certainly see
that the senators will constantly look up to the state governments with an eye
of dependence and affection. If
they are ambitious to continue in office, they will make every prudent
arrangement for this purpose, and, whatever may be their private sentiments or
politics, they will be convinced that the surest means of obtaining reelection
will be a uniform attachment to the interests of their several states.”
Finally, in the North Carolina Ratifying Convention, James Iredell also
noted that “[t]he manner in which our Senate is to be chosen gives us an
additional security. . . . There is every probability that men elected in this
manner will, in general, do their duty faithfully.
It may be expected, therefore, that they will cooperate in
every laudable act, but strenuously resist those of a contrary nature.”

This same argument was also made repeatedly in the early days of the new
republic. For example, in a July
1789 letter to John Adams, Roger Sherman emphasized that “[t]he senators,
being eligible by the legislatures of the several states, and dependent on them
for reelection, will be vigilant in supporting their rights against infringement
by the legislative or executive of the United States.”
In his 1803 edition of Blackstone’s
Commentaries
, St. George Tucker declared that if a senator abuses the
confidence of “the individual state which he represents,” he “will be sure
to be displaced.” James Kent in
his Commentaries on American Law noted
that “[t]he election of the Senate by the state legislatures is also a
recognition of their separate and independent existence, and renders them
absolutely essential to the operation of the national government.” And Joseph
Story in his Commentaries on the
Constitution of the United States
observed that one of the “main
grounds” for the mode of appointing the Senate was that it “would introduce
a powerful check upon rash legislation” and “would increase public
confidence by securing the national government from undue encroachments on the
powers of the states.”

The framers favored election of the Senate by state legislatures not
simply because it was, as Madison put it in Federalist
No. 62, “the most congenial with the public opinion” and not simply because
it provided, in Hamilton’s words from Federalist
No 59, incentives for senators to remain vigilant in their protection of the
“States in their political capacities.” They also favored this mode of
election because it helped them sidestep what Madison described in
Federalist
No. 37 as the “arduous” task of “marking the proper
line of partition, between the authority of the general, and that of the State
Governments.”

An episode at the very outset of
the Convention is most telling on this point. On May 31, the Convention, meeting
as a committee of the whole, had just taken up Resolution 6 of the Virginia Plan
that proposed, inter alia, that “the
National Legislature ought to be empowered . . . to legislate in all cases to
which the separate States were incompetent.” Charles Pinckney and John
Rutledge “objected to the vagueness of the term
incompetent,
and said they could not well decide how to vote until
they should see an exact enumeration of the powers comprehended by this
definition.” Madison responded by expressing his “doubts concerning [the]
practicality” of “an enumeration and definition of the powers necessary to
be exercised by the national Legislature.” Despite coming into the Convention
with a “strong bias in favor of an enumeration,” he owned that, during the
weeks before a quorum gathered in Philadelphia (during which he and his fellow
Virginia delegates drafted the Virginia Plan, including the language in
Resolution 6), “his doubts had become stronger.” He declared that he would
“shrink from nothing,” including, he implied, abandoning any attempt to
enumerate the specific powers of the national government, “which should be
found essential to such a form of Government as would provide for the safety,
liberty, and happiness of the community. This being the end of all our
deliberations, all the necessary means for attaining it must, however
reluctantly, be submitted to.”

In
his speech, Madison merely foreshadowed the argument he would later develop more
fully in Federalist No. 51, viz., that
the power of the new federal government was to be controlled, not through an
exact enumeration, i.e., through the use of “parchment barriers,” but by
“so contriving the interior structure of the government, as that its several
constituent parts may, by their mutual relations, be the means of keeping each
other in their proper places.” Nonetheless, his words were obviously
reassuring, for the Convention voted at the conclusion of his speech to accept
that portion of Resolution 6 by a vote of 9 states “yes,” one state
“divided.”

The Convention apparently shared Madison’s
doubts about the “practicality” of partitioning power between the federal
government and the states through an enumeration of the powers of the former.
Spending almost no time debating what specific powers the federal government
should have, it focused instead and almost exclusively on the question of
constitutional structure. Thus, the only resolution pertaining to the powers of
the federal government forwarded by the delegates to the Committee of Detail
(charged with taking “the proceedings of the Convention for the establishment
of a Natl. Govt.” and “prepar[ing] and report[ing] a Constitution
conformable thereto”) stated only that “the Legislature of the United States
ought to possess the legislative Rights vested in Congress by the Articles of
Confederation; and moreover to legislate in all Cases for the general Interests
of the Union, and also in those Cases to which the States are separately
incompetent, or in which the Harmony of the United States may be interrupted by
the Exercise of individual Legislation.”

Not even when the Committee of Detail created
out of whole cloth what ultimately became Article I, Section 8, did the
Convention systematically scrutinize the powers enumerated therein.

The delegates did not even object to the
proposed Necessary and Proper Clause. The conclusion is clear: Rather than rely
on precisely-drawn lines demarcating the powers of the federal and state
governments, the framers preferred instead to rely on such structural
arrangements as the election of the Senate by the state legislatures to ensure
that the vast powers they provided to the national government would not be
abused and that the federal design would be preserved.

One point concerning how the framers
protected federalism needs to be underscored. They relied on constitutional
structure and the self-interest of senators, not on the Supreme Court. They
drafted a constitution that protected the interests of the states as states both
structurally and democratically. They clearly did not intend that an
undemocratic Supreme Court would protect the original federal design or that it
would interfere with Congress’s decision of where to draw the line between
federal and state powers.

Just how modest were the framers’ designs for the
federal judiciary on this matter (or on any other as well) can be appreciated by
simply noting the placement, brevity, and generality of the judicial article. To
begin with, Article III, establishing the federal judiciary, follows Article I,
establishing the legislative branch, and Article II, establishing the executive
branch. By so arranging the articles, the Framers addressed each branch, in the
words of James Wilson, a member of the Constitutional Convention and an original
justice on the Supreme Court, “as its greatness deserves to be considered.”
Further, Article III is only about a sixth as long as the legislative article,
and only about a third as long as the executive article. Moreover, Article I
specifies in great detail the qualifications of representatives and senators
(including age and citizenship requirements), the sizes of the two houses of
Congress, the procedures they must follow, and the powers they are authorized or
prohibited to exercise. Article II is likewise quite detailed in its discussion
of the President’s qualifications, mode of appointment, powers, and
responsibilities. By contrast, Article III merely vests the judicial power of
the United States in one Supreme Court of unspecified size and in “such
inferior Courts as the Congress may from time to time ordain and establish.”
Article III outlines no procedures the courts are obliged to follow, and it
imposes no qualifications on judges, not even the requirement of citizenship.

More specific evidence that the framers did not expect
the Court to protect federalism is also available. Thus, they understood that
drawing a line between federal and state powers involves prudential
considerations beyond the Court’s legal capacity to pass judgment. They
understood that, to the extent that the Constitution authorized the Court to
exercise the power of judicial review (and whether it did was itself a major
question), it was only in those cases in which the popular branches had acted,
in the words of Federalist No. 78,
“contrary to the manifest tenor of the Constitution.” The Court was not to
invalidate congressional measures in close cases. Rather, as Hamilton makes
clear in Federalist No. 78, it was to
invalidate measures only in cases in which Congress’s disregard for “certain
specified exceptions to the legislative authority” was akin to its passage of
a bill of attainder or an ex post facto
law. Decisions by Congress regarding where federal power ends and state power
begins were of a different character; they did not implicate “specified
exceptions” to Congress’s legislative authority but rather merely involved
prudential judgments, agreed to by a Senate elected by state legislatures,
concerning the outer reaches of delegated congressional powers. As a
consequence, these decisions could never be held unconstitutional by the Court,
because they never could be regarded as clearly contrary to the Constitution’s
“manifest tenor.”

Quite apart from these prudential considerations, the
framers did not expect the Court to protect federalism, because they recognized
that they could not make it in the Court’ self-interest to do so. As the
Anti-Federalist Brutus had shrewdly remarked, it would never be in the
self-interest of the Court to strike down federal laws trenching on the
“inviolable and residuary sovereignty” of the states, because “[e]very
extension of the power of the general legislature, as well as of the judicial
powers, will increase the powers of the courts. . . .” Brutus insisted that it
will be in the interest of the judges “to extend their power and to increase
their rights; this of itself will operate strongly upon the courts to give such
a meaning to the constitution in all cases where it can possibly be done as will
enlarge the sphere of their own authority.” The framers made no effort to
contradict Brutus’s assessment and thus concurred sub
silentio
.

In
fact, while Brutus emphasized that it was always in the Court’s self-interest
to uphold the growth of federal power at the expense of the states, the framers
focused on the other side of the coin of self-interest and drafted Article III,
Section 2 so as to make it decidedly contrary to the Court’s self-interest to
interfere with Congress’s decisions concerning where to draw the line between
federal and state power. Thus, in Federalist
No. 80, Hamilton observed that “[i]f some partial inconveniences
should appear to be connected with the incorporation of any of [the powers of
the judiciary] . . . into the plan,” e.g., if the Court were ever to interfere
with where Congress had drawn the line between federal and states powers, “it
ought to be recollected that the national legislature will have ample authority
to make such exceptions, and to prescribe such regulations as will be calculated
to obviate or remove these inconveniences.”
In
Federalist
No. 81, he discussed another “important constitutional
check” on the Court — the impeachment power. “This is alone,” he
continued, “a complete security.”

One
final point concerning the framers’ intentions for the Court: As they did not
see it in the self-interest of the Court to protect federalism, so also they did
not regard it as in the best interest of federalism for it to be protected by
the Court. The framers wanted the people to have maximum flexibility to draw the
line between federal and state powers where they wished. They recognized, as
Madison argued in
Federalist
No. 46, that the people might “in [the] future become
more partial to the federal than to the State governments, . . . and in that
case, the people ought not surely to be precluded from giving most of their
confidence where they may discover it to be most due.” They were confident
that such a “change [could] only result from such manifest and irresistible
proofs of a better administration [by the federal government], as will overcome
all [the people’s] antecedent propensities”; nevertheless, if such a change
of public attitude did come about, they wanted to accommodate the people’s
wishes to draw the line between federal and state power where their
representatives in the House and their states’ representatives in the Senate
wanted them, not where the Supreme Court might determine.

The
framers’ original understanding of how federalism would be protected succeeded
admirably for the first century. The measures that the Congress passed were
understood, even by the Senate, to be consistent with the original federal
design and as serving those interests that prompted the adoption and
ratification of the Constitution in the first place. With Dred
Scott
as the principal exception, they were similarly understood by the
Supreme Court as well.[xi]
Over time, however, the public became increasingly dissatisfied with the
indirect election of the Senate and unappreciative of the protection it rendered
to federalism. The
public embraced the Progressives’ belief that the solution to all the ills of
democracy was more democracy. Tocqueville offers an important insight as to why:
“Men living in democratic ages do not readily comprehend the utility of
forms”—Tocqueville’s word for constitutional structure; in fact, quite the
contrary, “they feel an instinctive contempt for them.”

Forms, Tocqueville argues, excite the contempt and hatred
of men living in democratic ages. Since they “commonly aspire to none but easy
and present gratifications” and since the “slightest delay exasperates
them,” they are “hostile to forms, which perpetually retard or arrest them
in some of their projects.” As Tocqueville goes on to argue, however, “this
objection which the men of democracies make to forms is the very thing which
renders forms so useful to freedom.” “Their chief merit is to serve as a
barrier between the strong and the weak”—in the case of federalism, between
the national government and the states. And the stronger the national government
becomes, the more important forms or structure — in this particular case, the
mode of electing the Senate—also become for protecting the interests of states
as states. As Tocqueville writes, “Forms become more necessary in proportion
as the government becomes more active and more powerful, while private persons
[and, one might add, the states] are becoming more indolent and more feeble.”
From this, Tocqueville draws the following conclusion: “[D]emocratic nations
naturally stand more in need of forms than other nations, and they naturally
respect them less. This deserves most serious attention.”

Over time, the public came to have less respect for
constitutional forms. Forms—separation of powers, checks and balances, and
federalism—were all associated by the Progressives with a mechanistic
“Newtonian Theory” of politics that, as Woodrow Wilson insisted, had been
superseded by a modern Darwinian Theory. “The Constitution,” Wilson argued,
“was founded on the law of gravitation. The government was to exist to move by
virtue of the efficacy of ‘checks and balances.'” However, according to
Wilson, “The trouble with th[at] theory is that government is not a machine,
but a living thing. It falls, not under the theory of the universe, but under
the theory of organic life. It is accountable to Darwin, not to Newton.”
Moreover, constitutional forms were regarded by the Progressives as evidence of
the framers’ lack of confidence in the people. As Wilson argued in a chapter
in his 1912 campaign book The New Freedom
entitled “The People Need No Guardians”: the framers were “willing to act
for the people, but . . . not willing to act through
the people. Now we propose to act for ourselves.” Alexander Hamilton came
under particularly heavy fire: Because he relied on constitutional forms and not
simply on the people, Wilson branded him a “great man, but, in my judgment,
not a great American.”

Under the Progressives’ tutelage, the people lost
respect for constitutional forms, and hence, for the structural protection
afforded federalism. They came to associate the election of the Senate by state
legislatures with an outmoded, plutocratic constitution. Senators were no longer
described in the grandiloquent terms of a Tocqueville: “[T]he Senate . . .
contains within a small space a large proportion of the celebrated men of
America. Scarcely an individual is to be seen in it who has not had an active
and illustrious career: the Senate is composed of eloquent advocates,
distinguished generals, wise magistrates, and statesmen of note, whose arguments
would do honor to the most remarkable parliamentary debates of Europe.” Rather
they were subjected to Beardian obloquy: “Some of them were political leaders
of genuine talents but a majority possessed no conspicuous merits except the
ownership of strong boxes well filled with securities.”[xii]
By contrast, the people came to identify direct election of the Senate with
reform, faith in the people, and progress. The people demanded change, and they
eventually prevailed. On May 12, 1912, the Seventeenth Amendment, providing for
direct election of the Senate, was approved by the Congress;
it was ratified by the requisite three-fourths of the state legislatures
in less than eleven months and declared to be a part of the Constitution in a
proclamation by the Secretary of State on May 31, 1913.

While
state ratification of the Seventeenth Amendment came quickly and easily,
adoption by the Congress did not. The first resolution calling for direct
election of the Senate was introduced in the House of Representatives on
February 14, 1826. From then until the adoption of the Seventeenth Amendment 86
years later, 187 subsequent joint resolutions of a similar nature were also
introduced before Congress, 167 of them after 1880. The House approved six of
these proposals before the Senate reluctantly gave its consent.[xiii]
The factors that led to the Seventeenth Amendment’s adoption and ratification
need explanation.

Legislative Deadlock

One factor was legislative deadlock over the
election of senators brought about when one party controlled the state assembly
or house and another the state senate.[xiv]
While the opportunity for deadlock was always present, it was unleashed
by an 1866 act
(passed by Congress under its Article I, Section 4 power to prescribe
the time and manner of electing senators) The act mandated that each member of
the state legislature disclose his preference for senator by a voice vote and
the difference between the two houses be recorded, thereby revealing at the
outset of each session what a small minority would need to know to prevent, if
it could not control, the election
of any senatorial candidate. It also required state legislatures to meet in
joint session at noon on each legislative day and vote for a senator until a
candidate was elected.

Let me rehearse some of these deadlocks. In
1885, the Oregon legislature failed, after 68 ballots, to elect a senator and
eventually did so only in a special session. Two years later, West Virginia
failed to elect anyone. In 1892, Louisiana failed to elect a senator. In 1893,
the legislatures in Montana, Washington, and Wyoming deadlocked and failed to
elect senators, whereupon the governors of these states filled the vacancies by
appointment, only to have the Senate deny them their seats on the grounds that
only the state legislatures could elect senators. Kentucky failed to elect a
senator in 1896; Oregon in 1997; California, Utah, and Pennsylvania in 1899;
Rhode Island in 1907; and Colorado in 1911. Deadlock was perhaps most evident
and embarrassing in Delaware; it was represented by only one senator in three
Congresses and was without any representation at all from 1901 to 1903.[xv]
From 1885 to 1912, there 71 such legislative deadlocks, resulting in 17 senate
seats going unfilled for an entire legislative session or more. These
protracted deadlocks often led to the election of “the darkest of the dark
horse” candidates, occasionally deprived the affected states of representation
in the Senate, always consumed a great deal of state legislative time that was
therefore not spent on other important state matters, and powerfully served to
rally the proponents of direct election.[xvi]

Bribery and Corruption

A second factor undermining support for the
election of senators by state legislatures often followed on the heels of the
first: Scandal resulted when deadlocks were occasionally loosened by the
lubricant of bribe money. Prior to the passage of the 1866 act, the Senate had
investigated only one case of alleged bribery in the election of a senator.
However, between 1866 and 1900, the Senate was called on nine times to
investigate alleged bribery in Senate election cases; by 1912, that number had
increased by another five. In the 59th Congress alone, ten percent of
the Senate’s entire membership was put on trial or subjected to legislative
investigation. Two of the most infamous cases involved the elections of Montana
Senator William A. Clark in 1899 and Illinois Senator William Lorimer a decade
later. Clark confessed to a “personal disbursement” of over $140,000 to the
legislators of Montana and resigned his seat during floor deliberations of a
unanimous Senate committee report recommending his expulsion on the grounds that
he was not “legally elected” since over half of his majority in the state
Senate (8 of 15) had been obtained through bribery.[xvii]
Lorimer, a dark-horse candidate acceptable to both parties, was elected in 1909
by a bipartisan coalition in the Illinois legislature, thereby breaking a
protracted stalemate; however, a year later, the
Chicago Tribune
broke the story of how four state legislators were
bribed to change their vote on his behalf, and in 1912, nearly half-way through
the completion of his term, Lorimer was expelled by the Senate. Instances of
bribery and corruption were, in truth, few in number. “Of the 1,180 senators
elected from 1789 to 1909, only fifteen were contested due to allegations of
corruption, and only seven were actually denied their seats. Corruption was
proved to be present in approximately one-half of one percent of the elections
during that period.”[xviii]
Nonetheless, these instances were much publicized and proved crucial in
undermining support for the original mode of electing senators.

Populism and
Progressivism

A third factor, closely related to the
second, was the growing strength of the Populist movement and its deep-seated
suspicion of wealth and influence. It presented the Senate as “an
unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but
low in integrity.” In the House, proponents of direct election proclaimed a
need to “awaken . . . in the Senators . . . a more acute sense of
responsibility to the people.” And in the Senate, they proclaimed the Senate
to be “a sort of aristocratic body—too far removed from the people, beyond
their reach, and with no especial interest in their welfare.”

While Populism waned, Progressivism
waxed in its place, providing still a fourth factor: Progressivism’s belief in
“the redemptive powers of direct democracy,” i.e., its conviction that the
solution to all the problems of democracy was more democracy. The people could
be trusted to act for themselves; government was to be not only “of, by, and
for” the people, but “through the people.”[xix]
Thus, Senator William Jennings Bryan argued on the floor that “if the people
of the United States have enough intelligence to choose their representatives in
the State legislature . . . , they have enough intelligence to choose the men
who shall represent them in the United States Senate.” Senator David Turpee
agreed: however valid the reasons might have been for the framers’ original
mode of electing senators, the people at the end of the Nineteenth Century were
“a new people living and acting under an old system.”

Political Forces at Work at the State Level

Over time, election of senators by state
legislatures came to be associated with stalemate, corruption, plutocracy, and
reaction; by contract, direct election of senators was associated with reform,
integrity, democracy, and progress. The public demanded change and repeatedly
carried this message to the Congress itself through direct petitions. Beginning
with a petition from the citizens of Kendall and LaSalle, Illinois, dated
January 18, 1886, and continuing through the day the Seventeenth Amendment
received congressional approval, the Congress received a total of 238 petitions
from farmers’ associations, labor groups, and other citizens’ groups calling
for direct election of the Senate.

The politicians also demanded change. Beginning
with the Nebraska Republican Party in 1872 and continuing until the ratification
of the Seventeenth Amendment, a total of 239 party platforms called for direct
election of the Senate, including 220 state party platforms and 19 national
party platforms.

Even the states themselves demanded change. Beginning
with a memorial from the California State Legislature on February 18, 1874, and
continuing through congressional adoption of the Seventeenth Amendment in 1912,
the Congress received a total of 175 memorials from state legislatures urging
adoption of direct election of the Senate. State legislatures did more, however,
than merely demand change by sending memorials to the Congress; they took other
steps as well to bring it about. Thus, by 1912, thirty-three states had
introduced the use of direct primaries, and twelve states had adopted some form
of what was known as the “Oregon system.”

South
Carolina was the first state to introduce the direct primary in 1888. The direct
primary democratized the election of senators in the same way that the election
of the president had been democratized. As Alan Grimes explains, “[I]n the
same fashion in which state members of the Electoral College cast their votes
for the presidential candidate who had received the greatest popular vote in the
state, so the state legislatures were asked to elect that candidate for senate
who had received the greatest popular vote in a preferential primary.”[xx]

The
direct primary, however, shared the same problem as the democratized Electoral
College: the faithless elector. State legislators were not legally bound to
abide by the results of the primary and could ignore the wishes of the voters.
In an attempt to solve this problem, the State of Oregon passed by initiative in
1904 the “Oregon system.” Under this system, a general election runoff was
held between the primary nominees for the Senate of the major parties, and
candidates for the state legislature were “permitted” to include in their
platform one of two statements regarding their views on the election of
senators. “Statement No. 1” pledged the candidate to abide by the results of
the general election and, regardless of party affiliation, to vote “for that
candidate for United States Senator in Congress who has received the highest
number of the people’s vote for that position at the general election.”
“Statement No. 2” declared that the candidate would treat the results of the
general election “as nothing more than a recommendation” and would vote
according to his personal discretion.

Eleven other states (Idaho,
Nebraska, Nevada, Colorado, California, Kansas, Minnesota, New Jersey, Ohio,
Montana, and Arizona) quickly
imitated the “Oregon system,” with many going even further. Nebraska, for
example, required that, after each candidate’s name on the primary ballot for
the state legislature the following words would appear: “Promises to vote for
people’s choice for United States Senator” or “Will not promise to vote
for people’s choice for United States Senator.”[xxi]

The states took another decisive step as well
to bring about direct election of the Senate; they exercised their power under
Section V of the Constitution and called for a convention to consider amending
the Constitution to provide for direct election of the Senate. Calling for a
constitutional convention was a high-risk strategy. Article V of the
Constitution makes no provision for the manner of selecting and apportioning the
delegates to such a constitutional convention, for the place of holding such a
convention, for the rules of its proceedings, or for the scope of its authority.
As a consequence, many argue that once a convention is called, there is no way
to confine its deliberations; such a convention might consider itself authorized
to propose other amendments to the Constitution as well — or even to propose an
entirely new Constitution organized on completely different principles.[xxii] Nevertheless, the states
seemed willing “to risk opening Pandora’s Box for the sake of securing the
popular election of senators.” In 1893, California became the first state to
apply to Congress for such a convention; it was followed six years later by
Texas. In 1900, the Pennsylvania
legislature took the decisive step of suggesting to the states a coordinated
effort to demand a convention; believing that the Senate would not act until
two-thirds of the states forced it to do so, it sent to all the states a copy of
its convention petition and encouraged them likewise to submit one. Momentum was
gained, as, in addition to Pennsylvania, Michigan, Colorado, Oregon, and
Tennessee all made application to Congress for a convention in 1901. Kentucky
applied in 1902, and Arkansas, Washington, and Illinois followed suit in 1903.
Nebraska applied in 1907, as did Indiana, Iowa, Kansas, Louisiana, Missouri,
Montana, Nevada, New Jersey, North Carolina, Idaho, Oklahoma, South Dakota,
Utah, and Wisconsin in 1908. By 1910, when Maryland applied to Congress for a
convention, twenty-seven of the thirty-one state legislatures then required to
call a convention had formally petitioned the Congress. Because of its call in
1908 for a convention for another reason (to abolish polygamy), Delaware was
widely regarded by the proponents of direct election as constituting a
twenty-eighth state; as they pointed out, all that it took to determine that a
state’s application for a convention was legitimate was a simple majority in
both houses of Congress. Arizona and New Mexico were about to become states and
were expected to increase the ranks of those supporting such a amendment to
thirty. While their admission to the Union would also increase the necessary
two-thirds of the states to thirty-two, proponents of direct election noted that
Alabama and Wyoming had already submitted resolutions supporting the idea of a
convention although without formally calling for one, and that the language of
their resolutions could be easily rectified. The fear of a “runaway”
constitutional convention, along with the fact that most senators represented
states whose legislatures were on record as favoring direct election of the
Senate, proved decisive.[xxiii]
Thus, on May 12, 1912, the 62nd Congress finally approved the
Seventeenth Amendment by a vote in the Senate of 64 to 24 and by a vote in the
House of 238 to 39.

The Seventeenth Amendment was quickly
ratified by the states in less than eleven months (at the time, the only
amendment to have been ratified more quickly was the Twelfth Amendment).[xxiv]
Connecticut was the requisite 36th state to ratify on April 8, 1913.
Not only was the Seventeenth Amendment ratified quickly but it was ratified by
overwhelming numbers. Two statistics show how overwhelming: In 52 of the 72
state legislative chambers that voted to ratify the Seventeenth Amendment, the
vote was unanimous, and in all 36 of the ratifying states, the total number of
votes cast in opposition to ratification was only 191, with 152 of these votes
coming from just two legislative chambers: 77 came from the Connecticut House
and 75 from the Vermont House.

What is particularly noteworthy of the lengthy debate over the adoption
and ratification of the Seventeenth Amendment was the absence of any serious or
systematic consideration of its potential impact on federalism. The consequences
of the Seventeenth Amendment on federalism went almost completely unexplored.
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. Almost no one (not even among the
opposition) paused to weigh the consequences of the amendment on federalism.

Only three exceptions are apparent in the
voluminous record. One was Representative Franklin Bartlett, the Democrat from
New York, who argued powerfully and eloquently during the 53rd
Congress that the interests of the states as states could only be preserved by
keeping the senators as representatives of state governments. He fully
appreciated that “the Framers of the Constitution, were they present in this
House to-day, would inevitably regard this resolution as a most direct blow at
the doctrine of State’s rights and at the integrity of the State
sovereignties; for if you once deprive a State as a collective organism of all
share in the General Government, you annihilate its federative importance.”

The other two exceptions were in the Senate:
George F. Hoar, a Republican from Massachusetts, and Elihu Root, a Republican
from New York. On the Senate floor during the 53rd Congress, Senator
Hoar defended indirect election of the Senate, declaring that the “state
legislatures are the bodies of men most interested of all others to preserve
State jurisdiction . . . . It is well that the members of one branch of the
Legislature should look to them for their re-election, and it a great security
for the rights of the States.” After quoting approvingly from Story’s Commentaries
that election of the Senate by the state legislatures “would increase the
public confidence by securing the national government from any encroachments on
the powers of the states,” Hoar continued: “The State legislature will be
made up of men whose duty will be the administration of the State authority of
their several State interests and the framing of laws for the government of the
State which they represent. The popular conventions, gathered for the political
purpose of nominating Senators, may be quite otherwise composed and guided.
Here, in the State legislature, is to be found the great security against the
encroachment upon the rights of the States.” In the 61st Congress,
Senator Root argued against direct election of the Senate on the very same
grounds—if the sovereignty of the states was to be preserved, the original
mode of electing the Senate had to be preserved.

Most political leaders during this lengthy
campaign to secure the adoption and ratification of the Seventeenth Amendment
clearly did not appreciate the framer’s understanding that the principal means
of protecting federalism and preventing the transfer of the “residuary and
inviolable sovereignty of the states”[xxv]
to the national government was the mode of electing the Senate. They did not
worry about altering constitutional structure, because they embraced the
Progressive notion that the Constitution is a living organism that must
constantly adapt to an ever-changing environment. They did not worry that their
alterations would break a Newtonian, clock-like mechanism; rather, they believed
in and celebrated the Darwinian adaptability of the Constitution and the
evolution of its principles.

Abraham
Lincoln’s 1838 speech to the Young Men’s Lyceum suggests why they were
oblivious to the impact that direct election would have on federalism and, in so
doing, offers a cautionary note to those who would trust in constitutional
structure for their political salvation. In
that speech, Lincoln described how the founding principles of the republic were
“fading” from view. He did not fear that they would ever be entirely
forgotten, only “that like every thing else, they must fade upon the memory of
the world and grow more and more dim by the lapse of time.”
Nevertheless, Lincoln warned, the consequences were profound. Those
founding principles “were a fortress of strength; but what invading foeman
could never do, the silent artillery of time has done; the leveling of its
walls.”

To invoke Lincoln’s imagery from that
Lyceum Address, in the glare of the Progressives’ white-hot confidence in the
justice and superiority of simple majoritarian democracy, the framers’
arguments for relying instead on a more complex, mitigated democracy “faded”
from the public’s view. Over an 86-year campaign to make the Senate more
democratic, the people’s memories of the framers’ understanding that
federalism could only be rendered secure by the mode of electing the Senate gr[e]w
more and more dim by the lapse of time.” They no longer appreciated the
importance of constitutional walls for directing and channeling self-interest
toward the public good, and so, aided in their assault by the “silent
artillery of time,”[xxvi]
they leveled the walls of federalism and thereby killed it.
We continue to live with the consequences of this successful assault.

Notes




[i].
Ralph A. Rossum, Federalism,
the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional
Democracy
(Lanham, Md.: Lexington Books, 2001).


[ii]
In 1976, the Supreme Court invalidated Congress’s 1974 amendments to the
Fair Labor Standards Act, extending minimum wage/maximum hours requirements
to employees of states and their political subdivisions.
National League of Cities v.
Usery,
426 U.S. 833 (1976). For the next sixteen years, the Court held its hand
and, in fact, in 1985, reversed its 1976 decision in
Garcia
v. San
Antonio Metropolitan Transit Authority
, 469 U.S. 528 (1985). However,
starting again in 1992, the Court has become very active, striking down
twelve laws in eleven years. It declared unconstitutional:

—in
1992, the Low-Level Radioactive Waste Policy Amendments Act of 1985,
mandating that the states themselves must take title to radioactive waste
within their borders if they fail otherwise to provide for its disposition, New
York

v.
United States, 505 U.S.
144 (1992) (on the grounds that the act “commandeered” state officials);

—in
1995, the Gun-Free School Zone Act of 1990, banning firearms within “a
distance of 1,000 feet from the grounds of a public, parochial or private
school,” Lopez
v.
United States, 514 U.S.
549 (1995) (because it exceeded Congress’s power under the Commerce
Clause);

—in
1996, the provision of the Indian Gaming Regulatory Act of 1988 mandating
the states to negotiate in good faith with Indian tribes to form compacts
governing certain gaming activities and authorizing them to be sued by the
tribes in federal court if they fail to do so, Seminole
Tribe of Florida v.
Florida,
517 U.S. 44 (1996) (because it violated the “presupposition” of the
Eleventh Amendment that the states enjoy state sovereign immunity and cannot
be sued without their consent);

—in
1997, both the Religious Freedom Restoration Act of 1993, barring all
governments (federal, state, and local) from burdening the free exercise of
religion without a compelling state interest,
City of Boerne v.
Flores,
521 U.S. 507 (1997) (on the grounds that the act was not remedial and
therefore that Congress could not enact it based on Section 5 of the
Fourteenth Amendment), and a key provision of the Brady Handgun Violence
Prevention Act of 1993, mandating state law-enforcement officers to conduct
background checks for all individuals wishing to buy handguns, Printz
v
. United States, 521 U.S. 898
(1997) (because it “commandeered these state officials to carry out this
federal mandate);

—on
a single day at the end of the Court’s 1998-99 term, the Trademark Remedy
Clarification Act of 1992 subjecting states to suit under the Trademark Act
of 1946, Florida Prepaid Postsecondary
Education Expense Board
v. College
Savings Bank
, 527 U.S. 627 (1999); the 1992 amendments to the Patent
Remedy Act expressly abrogating state sovereign immunity in patent cases, College
Savings Bank
v. Florida
Prepaid Postsecondary Education Expense Board
, 527 U.S. 666 (1999); and
those 1974 amendments to the Fair Labor Standards Act authorizing private
actions against the states in their own courts without their consent, Alden
v. Maine, 527 U.S. 706 (1999) (all
three cases concluded that Congress lacked the power to abrogate state
sovereign immunity);

—in
2000, the provisions of the Age Discrimination in Employment Act of 1967
subjecting states to suits filed by state employees for age discrimination, Kimel

v.
Florida Board of Regents,
528 U.S. 62 (2000) (on the grounds that it violated the principle of state
sovereign immunity), and the provisions of the Violence against Women Act of
1994, allowing victims of gender-motivated violence to bring suit in federal
court to recover compensatory and punitive damages for the injuries
sustained, United States v.
Morrison
, 529 U.S. 598 (2000) (because the act exceeded Congress’s
enforcement powers under Section 5 of the Fourteenth Amendment);

—in
2001, the provisions of the Americans with Disabilities Act of 1990 allowing
suits in federal court by state employees seeking to recover money damages
by reason of a state’s failure to comply with the Act’s provisions, Trustees
of the University of Alabama
v.
Garrett, 531 U.S. 356 (2001) (again, because it impermissibly
trenched on state sovereign immunity); and

—in
2002, the provisions of the Shipping Act of 1984 allowing the Federal
Maritime Commission to adjudicate complaints filed by private parties
against state port authorities, Federal Maritime Commission v. South Carolina State Ports
Authority,
535 U.S. 743 (2002) (likewise on the grounds of the Eleventh
Amendment’s guarantee of state sovereign immunity).

[iii].
There are, of course, other structural protections of federalism in the
Constitution—the states’ involvement in the election of the president by
the electoral college (Article II, Section 1) and in the amendment process
(Article V) are two of them. Federalism, the Supreme Court and the
Seventeenth Amendment: The Irony of Constitutional Democracy
focuses on
the mode of electing the senate for it was the structural provision on which
the framers placed most emphasis and it is the only structural provision
formally removed by constitutional amendment.

[iv].
The text of the Seventeenth Amendment is as follows:

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.

[v].
Not only have these post-Seventeenth Amendment congressional measures
increased in number and intrusiveness, they have also become, in Theodore J.
Lowi’s terms, more abstract, general, novel, discretionary, and
prescriptive (in contrast to earlier pre-Seventeenth Amendment legislation
that was more concrete, specific, traditional, rule-bound, and prospective).
Lowi,
The End of Liberalism: Ideology, Policy, and the Crisis of Public
Authority
(New York: W. W. Norton & Company, 1969), 134-35. This
development has led to what Lowi calls “policy without law” (Lowi, End
of Liberalism,
126) and has weakened not only the states but the
Congress itself—after all, with the Senate no longer answerable to state
legislatures, it has felt increasingly free to join the House in legislating
on every social, economic, or political problem which it perceives as
confronting the nation, even if the resulting measures are little more than
blank checks of authority to the executive branch and the federal
bureaucracy. See Vikram David Amar, “Indirect Effects of Direct Election:
A Structural Examination of the Seventeenth Amendment,” Vanderbilt
Law Review
49 (1996): 1360-89.

[vi].
It must be stressed that this is not a “cause and effect” argument;
clearly, many factors account for the rapid expansion of the national
government, with two world wars and the Cold War, continued industrial
growth, and breakthroughs in transportation and electronic communications
being chief among them. Moreover, as Jay S. Bybee acknowledges, it is “a
maddeningly difficult proposition to prove” the exact effects of direct
election of senators. Bybee, “Ulysses at the Mast: Democracy, Federalism,
and the Sirens’ Song of the Seventeenth Amendment.” Northwestern
University Law Review
91 (1997): 500, 547. Nevertheless, it is clear
that the ratification of the Seventeenth Amendment removed a
previously-existing constitutional brake on these centralizing tendencies,
and that federalism, as Todd J. Zywicki has pointed out, has been reduced to
“a pale imitation of its pre-Seventeenth Amendment vigor.” Zywicki,
“Beyond the Shell and Husk of History: The History of the Seventeenth
Amendment and Its Implications for Current Reform Proposals,” Cleveland
State Law Review
45 (1997): 165, 212. See also 174-75: “Conventional
wisdom states that the New Deal commenced a radical shift in the scope of
the federal government. In fact, the growth in the federal government began
almost immediately after the passage of the Progressive Era amendments. . .
. The New Deal simply confirmed the constitutional revolution which had
already transpired.”

[vii].
There is another irony as well that this book does not systematically
explore: A majority of the Supreme Court is perfectly willing to deny the
democratic principle and to protect federalism by invalidating what the
popular branches have enacted, but it is unwilling to protect federalism and
return vast areas of policy making to the states by repudiating its own
earlier decisions that have held that the Fourteenth Amendment incorporates
most of the provisions of the Bill of Rights and makes them applicable to
the states. As Lino A. Graglia points out in “United
States

v.
Lopez: Judicial Review
under the Commerce Clause,” Texas
Law Review
74 (March 1996): 726, this loss of state autonomy by the
Court is simply impossible to justify, because it means “the loss not only
of federalism but also of the rights of representative self-government, the
removal of power not only from the states but from the ordinary political
process.”

The framers also relied on the composition of the Senate. By
composition, I mean, in the words of Oliver Ellsworth, “that in the second
branch each state have an equal vote,” resulting thereby in a “general
government partly federal and partly
national.”
Max Farrand (ed.), The
Records of the Federal Convention of 1787, Rev. ed.,
4 vols. (New Haven:
Yale University Press, 1937), 1: 474. Emphasis in the original. (Hereafter
cited as Farrand, Records.) This,
of course, is the description James Madison will apply to the new federal
structure created by the Constitutional Convention in Federalist
No. 39. James Madison, Alexander Hamilton, and John Jay,
The Federalist,
ed. Jacob E. Cooke (New York: World Publishing
Company, 1961), 257. Had all states not been equally represented in the
Senate, the ability of the smaller states to protect their interests as such
would have been seriously impaired. See also Zywicki, “Beyond the Shell
and Husk of History,” 176-79, for an excellent discussion of how
bicameralism also served to preserve the interests of the states as states.
The focus of this chapter is not on the composition of the Senate (or on how
equal representation of the states and bicameralism advance the interests of
federalism) but only on the manner by which the Senate is elected.

Farrand, Records, 1:. 407.
Roger Sherman had already made much the same argument on June 6: “If it
were in view to abolish the State Govts. the elections ought to be by the
people. If the State Govts. are to be continued, it is necessary in order to
preserve harmony between the National & State Govts. that the elections
to the former shd. be made by the latter.” Farrand,
Records,
1: 133.

Farrand, Records, 1: 408. The
delegates were clearly aware of other “modes” they also could have
incorporated into the Constitution that would have helped to defend the
interests of the states as states. To mention the four most obvious, they
could have (1) specified that the Senate delegation from a state vote as a
block, (2) made explicit provision for the instruction of senators by state
legislatures, (3) allowed the states to recall their senators, and (4)
required rotation in office.

[xi].
During the entire period prior to the ratification of the Seventeenth
Amendment, the Supreme Court’s invalidations of congressional measures on
federalism grounds were few in number and, with the exception of Dred
Scott
, of little consequence. It invalidated only seven congressional
measures in the following cases: Dred
Scott
v. Sandford,
60 U.S. 393 (1957); United States v.
Dewitt, 76 U.S. 41 (1870); United
States
v. Fox,
95 U.S. 670 (1878); the Trademark
Cases
, 100 U.S. 82 (1879); the Employers’
Liability Cases,
207 U.S. 463 (1908); Keller
v.
United States
, 213 U.S. 138 (1909), and
Coyle v.
Smith, 221 U.S.
559 (1911). An eighth statute considered in Matter
of Heff
, 197 U.S. 488 (1905), could possible be added here. However, the
Court explicitly overturned Matter of
Heff
in United States v.
Nice, 241 U.S. 591 (1916), and,
consequently, it is not included in these totals.

[xii].
Charles A. Beard and Mary R. Beard, The
Rise of American Civilization.
2 vols. (New York: Macmillan Company,
1933), 2: 559.

[xiii].
The House approved these proposals by a two-thirds voice vote on January 16,
1893; by a vote of 141 to 50 on July 21, 1894; by a vote of 185 to 11 on May
11, 1898; by a vote of 242 to 15 on April 12, 1900; by a two-thirds voice
vote on February 13, 1902; and by a vote of 296 to 16 on April 13, 1911. See
David E. Kyvig, Explicit and Authentic
Acts: Amending the U.S. Constitution, 1776-1995
(Lawrence, Kansas:
University Press of Kansas, 1996), 209, and Hall, “The History and Effect
of the Seventeenth Amendment,” 163-64.

[xiv].
Although, see California, where this was not the case. The two legislative
deadlocks that each time left the state with only one senator for an entire
Congress were caused by other factors. In 1855, the deadlock resulted from a
split between the northern (or “Tammany”) and southern (or
“Chivalry”) factions of the Democratic Party. The two terms come from
Zoeth Skinner Eldredge, History of California, 5 vols. (New York:
Century History Company, 1915), 4: 136. In 1899, the deadlock came about
when the Republicans divided in “a contest between Los Angeles and San
Francisco.” See A. A. Gray, History of California: From 1542 (New
York: D. C. Heath and Company, 1934), 526. When the term of Senator Stephan
M. White, a Democrat from Los Angeles, expired in 1899, a falling-out
between Governor Henry T. Gage, a Republican from Los Angeles, and Michael
H. de Young, Republican publisher of the San Francisco Chronicle, led
to deadlock in the Republican-controlled legislature. After 104 ballots, and
with the depletion of the legislators’ expense allowance for the session,
the legislature adjourned on March 19 without electing a senator. The seat
remained vacant unlike Thomas R. Bard, a Republican from Ventura, filled it
in 1901. See Ralph J. Roske, Everyman’s Eden: A History of California
(New York: Macmillan, 1968), 447-48; Rockwell D. Hunt, California and
Californians.
5 vols. (Chicago: Lewis Publishing Company, 1926), 2: 414;
and Royce D. Delmatier, Clarence F. McIntosh, and Earl G. Waters, The
Rumble of California Politics: 1848-1970
(New York: John Wiley &
Sons, 1970), 133-37.

[xv].
Kyvig, Explicit and Authentic Acts, 209. See also George H. Haynes, The
Senate of the United States: Its History and Practice
, 2 vols. (New
York: Houghton Mifflin Company, 1938), 2: 92, and Hall, “The History and
Effect of the Seventeenth Amendment,” 287-301. As Zywicki, “Beyond the
Shell and Husk of History,” 199, points out, however, despite these
problems, Delaware affirmatively voted to reject the Seventeenth Amendment.

[xvi].
“Each ballot took a considerable amount of time, and when sessions were
limited to forty or sixty days, incessant balloting could not fail to
curtail very materially the time available for the legislator’s normal
work in the service of the state . . . [I]t must [also] be recognized that,
as the session wore on, the animosities engendered in the deadlock projected
themselves into the ordinary work of the legislature, giving a party color
to the most non-partisan measures, and distorting the legislator’s views
upon many state issues.” Haynes, The
Senate of the United States
, 1:
93.

[xvii].
Interestingly, however, Montana returned Senator Clark the following year.
Christopher H. Hoebeke,
The Road to Mass Democracy: Original Intent and the Seventeenth
Amendment
(New Brunswick, N.J.: Transaction Publishers, 1995), 92.

[xviii].
Zywicki, “Beyond the Shell and Husk of History,”197.

[xix]
Woodrow Wilson, The New Freedom: A Call for the Emancipation of the
Generous Energies of a People
(New York: Doubleday, Page, 1913), 55.


[xx].
Alan P. Grimes, Democracy and
Amendments to the Constitution
(Lexington, Mass.: Lexington Books,
1978).

[xxi].
As a consequence, when George Norris, the Republican Party primary nominee
for the Senate, defeated his Democratic Party opponent in the 1912 general
election, the Democratically-controlled Nebraska Legislature duly elected
Norris and sent him to the Senate. Sara Brandes Crook, “The Consequences
of the Seventeenth Amendment: The Twentieth Century Senate.” Ph.D.
dissertation, Department of Political Science, University of Nebraska,
Lincoln (1992), 30.

[xxii].
There are substantial arguments to the contrary. See Grover Rees III, “The
Amendment Process & Limited Constitutional Conventions,” Benchmark
2 (March-April 1986): 66-108. See also American Bar Association, Special
Constitutional Convention Study Committee, Amendment of the Constitution:
By the Convention Method Under Article V
(Chicago: American Bar
Association, 1974).

[xxiii].
“The wake-up call to the Senate was apparently the defeat in 1910 of ten
Republican senators who had opposed the proposed amendment.” Bybee,
“Ulysses at the Mast,” 537-38.

[xxiv].
The 26th Amendment holds the record today for quickest ratification. It was
approved by the Congress on March 10, 1971, and ratified by the requisite
38th state on July 1 of the same year.

[xxv].
Alexander Hamilton, James Madison, and John Jay, The
Federalist
, ed. Jacob E. Cooke (New York: World Publishing Company,
1961), No. 39, 256.

[xxvi].
Abraham Lincoln, “The Perpetuation of our Political Institutions,”
Address before the Springfield Young Men’s Lyceum in 1838. In Richard N.
Current (ed.), The Political Thought
of Abraham Lincoln
(New York: Bobbs-Merrill Company, Inc., 1967), 20.

© The Philadelphia Society 2019 | Webmaster Contact

The material on this website is for general education and information only. The views presented here are the responsibility of their authors and do not reflect endorsement or opposition by The Philadelphia Society. Please read our general disclaimer.