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, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is 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 show that the Amendment requires states to fill Senate vacancies by holding elections, whether or not they first fill the vacancy with a temporary appointment. 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 startling pattern of state defiance of the Seventeenth Amendment. To measure state compliance, we gathered and examined data on all 244 vacancies in the Senate since the Amendment’s adoption. In one-six of cases, states violate the Seventeenth Amendment by failing to hold any election; and in many more they unnecessarily delay holding those 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 and nothing is done to stop them.
Available at: http://works.bepress.com/zachary_clopton/1/