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State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional


Donald J. Kochan


Chapman University, The Dale E. Fowler School of Law


Albany Law Review, Vol. 66, No. 4, 2003
Chapman University Law Research Paper No. 08-12

Abstract:     
In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying positive political theory to examine the potential effects of the Seventeenth Amendment while remaining generally agnostic concerning whether the hypothesized decrease in state power represents a sound governing structure.

This Article's main focus is on examining the institutional weapons available to state legislatures in the pre-Seventeenth Amendment world resulting from state legislatures' influence in Congress. It posits that these weapons could be used to influence outcomes at the Supreme Court and other federal courts if those courts threatened the institutional interests of state legislatures, mainly the durability of state legislative acts. This Article hypothesizes that the Seventeenth Amendment left federal courts free to hold state laws unconstitutional without significant fear that the institutional interests of the federal court system and the interests of individual judges would face retaliation for such holdings.

This Article ends with empirical material that supports the theory that the federal courts have treated the constitutionality of state laws differently before and after the Seventeenth Amendment. Although evidence of causation must be explored further, there is substantial empirical evidence that suggests that the Seventeenth Amendment may have altered the relationship between state legislatures and federal courts.

[Among other citations, this Article is one of the primary law review articles listed under U.S. Constitution, XVII Amendment in the United States Code Annotated (USCA).]

Number of Pages in PDF File: 43

Keywords: Constitutional Law, Law and Economics, Statistics, Public Choice, Independent Judiciary, State Laws, Supreme Court, Seventeenth Amendment, Direct Election, Populism, Federalism, Landes, Posner, McNollgast

JEL Classification: B00, B40, C10, C50, C80, E00, H10, H11, H19, K00

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Date posted: June 14, 2006 ; Last revised: May 15, 2013

Suggested Citation

Kochan, Donald J., State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional. Albany Law Review, Vol. 66, No. 4, 2003; Chapman University Law Research Paper No. 08-12. Available at SSRN: http://ssrn.com/abstract=907518

Contact Information

Donald J. Kochan (Contact Author)
Chapman University, The Dale E. Fowler School of Law ( email )
One University Drive
Orange, CA 92866-1099
United States
714-628-2618 (Phone)
714-628-2576 (Fax)

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