17th Amendment

The first forgotten check on the federal government can be found in the Constitution of 1787’s Article I, Section 3 and it states:  “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.”   In other words, Article I, Section 3 required each state’s legislative body, rather than its citizens, to choose its two U.S. Senators.[1]  This Senate provision was the original instrument that ensured “State Rights” in the legislative, executive and judicial branches of the federal government because all presidential nominations for executive and judicial posts take effect only when confirmed by the Senate, and international treaties become law only when approved by a two-thirds vote of the Senate.[2]

From 1789 until 1913, United States Senators served, essentially, as ambassadors of the individual states to the Federal Government.  Senators unequivocally represented their States’ interest and took instructions directly from the legislative branch of their respective state governments. The first significant example of state power in this regard was in 1788, when Patrick Henry, as a powerful member of the Virginia House of Delegates, used his voting block to thwart James Madison's aspirations for a seat in the United States Senate.   Henry then used his influence to draw-up a Virginia Congressional District that gave James Monroe the voter advantage over Madison in the House race between two future U.S. Presidents. In order to placate Patrick Henry’s anti-federalist supporters, James Madison was forced to promise that, if elected, he would introduce constitutional amendments.  Winning his home county of Orange 216 to 9, Madison won the election by 1,308 to 972 over James Monroe. 

Madison questioned the necessity of a federal bill of rights but was forced to face the issue early in the first House session.  On June 8th, 1789, he introduced in the House proposed amendments that were primarily related to civil liberties rather than the structure of the government. Henry and the antifederalists believed Madison's proposals were a far cry from the Amendments that they had proposed at the ratification convention and, on August 13th, antifederalists introduced amendments changing the structure of the federal government and protecting the rights of the states from encroachment. The debate was vibrant and Representative Madison, due to Patrick Henry’s blocking of his election to the Senate, found himself the pivotal Congressman in framing what we now call the Bill of Rights.

Under the Constitution of 1787 Article I, Section 3, U.S. Senators were also actively engaged in the election of local State legislators. When Abraham Lincoln and Stephen Douglas traveled around Illinois in 1858 debating each other as they vied for a seat in the U.S. Senate, they weren't looking for votes from the citizens.  Douglas, the incumbent senator and Lincoln, who had served one term in the House, were seeking votes from the State Delegates and Senators in the Illinois legislature. For 124 years, State legislators, not lobbyists,[3] worked closely with U.S. Senators in drafting bills to be introduced in Congress. U.S. Senators spent the majority of their time in the Senate actually conducting the nation’s business, as opposed to today’s members whose schedules are consumed with fund raising-related duties.[4]  The 17th Amendment’s provision for direct popular vote elections, while purportedly giving “power to the people,” in fact stripped the States’ constitutional check over the Senate.[5]

17th Amendment

17th Amendment

US Constitution Amendment
Proposal Date
Enacted Date
Establishes the direct election of United States Senators by popular vote - Signers: Speaker of the House Champ Clark (D-MS) & Vice President James S. Sherman (R-NY)
May 12, 1912
April 8, 1913

The Seventeenth Amendment (Amendment XVII) to the United States Constitution was passed by the Senate on June 12, 1911, the House of Representatives on May 13, 1912, and ratified by the states on April 8, 1913. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, transferring Senator selection from each state's legislature to popular election by the people of each state. It also provides a contingency provision enabling a state's governor, if so authorized by the state legislature, to appoint a Senator in the event of a Senate vacancy until either a special or regular election to elect a new Senator is held.

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

The Republicans that introduced and pushed through the 17th Amendment argued that the cure for the republic’s shortcomings was more democracy. The opposition argued that the fundamental purpose of the U.S. Senate was to protect the sovereignty of the states which checked the federal government through legislative appointments of U.S. Senators.  Exhibited are two Pamphlets:

Speech of Hon. Wm. E. Chandler, of New Hampshire, against Senate joint resolution no. 37, proposing an amendment of the Constitution relating to the election of senators by the people: delivered in the Senate of the United States, April 12, 1892, Publication of Congress, Washington 1911         

 Election of senators by the people: If United States Senators are elected by the people instead of by the legislators the people should be permitted to vote. The constitutional method of electing senators has worked well for one hundred and twenty-two years. Why experiment? Speech of Hon. Chauncey M. Depew of New York in the Senate of the United States Tuesday, January 24, 1911, Publication of Congress, Washington 1911         

[1] This important check of the States over the U.S. Senate was overturned by the Progressive Republicans when they voted to send the Constitution’s Seventeenth Amendment to the States for ratification on May 13, 1912. 
[2] Constitution of 1787, Article II, Section 2, Clause 2
[3] See discussion, below.
[4] Ryan Grim and Sabrina Siddiqui, Call Time For Congress Shows How Fundraising Dominates Bleak Work Life, Huffington Post, 01/08/2013 - "The amount of time that members of Congress in both parties spend fundraising is widely known to take up an obscene portion of a typical day -- whether it's "call time" spent on the phone with potential donors, or in person at fundraisers in Washington or back home. Seeing it spelled out in black and white, however, can be a jarring experience for a new member, as related by some who attended the November orientation.” 

[5] The Editorial Board, Dark Money Helped Win the Senate, Sunday Review Editorial, New York Times, 11/8/2014 - "The next Senate was just elected on the greatest wave of secret, special-interest money ever raised in a congressional election. What are the chances that it will take action to reduce the influence of money in politics? Nil, of course." 

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