Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides for the first time a comprehensive interpretation of the Seventeenth Amendment based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional provision. Among other things, we demonstrate that the Amendment requires states to fill Senate vacancies by holding elections, whether or not they first fill those vacancies by making temporary appointments. In so doing, the Seventeenth Amendment guarantees that the people’s right to vote for Senators is protected in all circumstances.
We also identify a pronounced pattern of state defiance of the Seventeenth Amendment. To measure state compliance with this constitutional provision, we gathered and examined data on each of the 244 vacancies that has occurred in the Senate since the Amendment’s adoption. In one-sixth of these cases, the states have directly violated the Seventeenth Amendment’s core requirement that Senators be elected by popular vote by failing to hold any election; and in many more than that they have unnecessarily (and, we argue, unconstitutionally) delayed holding the required elections. These practices have cost the people 200 years worth of elected representation since the Constitution was amended to provide for direct election of Senators. There are few areas in which states so routinely disregard the federal Constitution without any action to stop them.
- Constitutional Law,
- Voting Rights,
- Seventeenth Amendment,
Available at: http://works.bepress.com/steven_art/3/