The Constitutional Life of Legislative Instructions in America
New York University School of Law
May 12, 2009
New York University Law Review, Vol. 84, p. 1331, 2009
In America's early history, state legislatures often formally instructed their federal representatives on particular votes. This practice flourished for a century, but then died out - a change that many scholars attribute to the Seventeenth Amendment. This Note argues that previous scholars have ignored other, more important reasons for the demise of instructions.
The six-year term length for United States senators, combined with the increasingly rapid turnover in state legislatures, prevented binding instructions from becoming entrenched. Instructions were held in place only by constitutional culture, but even this did not last. After Southern Democrats vigorously used the practice to purge Whigs from the Senate, instructions were indelibly linked to the South. Not surprisingly, the doctrine of instructions was one of the casualties of the Civil War. The roles had been reversed: Now the states - especially the Southern states - were taking instructions from the federal government. Today, instructions still exist, but as nonbinding "requests" for action. This new conception of instructions returns us full circle, to James Madison's conception of the proper role of instructions: A right of "the people . . . to express and communicate their wishes" to their representatives.
Number of Pages in PDF File: 44
Keywords: constitution, history, representation, Senate, instructions, Seventeenth Amendment, political safeguards of federalismAccepted Paper Series
Date posted: May 18, 2009 ; Last revised: November 16, 2009
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