An Excursion into the Uncharted Waters of the Seventeenth Amendment

30 Pages Posted: 6 Mar 2009

See all articles by Laura E. Little

Laura E. Little

Temple University - James E. Beasley School of Law

Date Written: 1991


The Seventeenth Amendment mandates that Senators shall be "elected by the people." In the event that a Senate vacancy occurs, the Seventeenth Amendment allows a state's legislature to "empower the executive [of the State] to make temporary appointments until the people fill the vacancies by election as the legislature may direct." In this Article, Professor Laura Little analyzes the Third Circuit's opinion in Trinsey v. Pennsylvania, a case that arose in the aftermath of Senator John Heinz's 1991 death, and addressed the constitutionality of Pennsylvania's temporary appointment statute.

The issue in Trinsey was whether the Seventeenth Amendment allows a state to forego a primary election in choosing candidates to fill the Senate vacancy, instead empowering political party committees to select the candidates, which is what title 25, section 2776 of the Pennsylvania Statutes provides for. Reversing the trial court's determination that section 2776 was unconstitutional, the Third Circuit held that the Seventeenth Amendment did not require a state to hold primary elections when filling Senate vacancies. Professor Little criticizes the Trinsey opinion for its failure to address arguments and concerns on both sides of the issue, thereby passing up an opportunity to provide much-needed guidance on the Amendment's meaning. In her own analysis, Professor Little notes that the Trinsey opinion fails to take into consideration many factors such as the importance of primary elections in Pennsylvania's political process, the specific evils that the Seventeenth Amendment as a whole was meant to cure through requiring more democratic procedures for electing state senators, and the resemblance of section 2776's procedures with the same procedures that Congress rejected through the Seventeenth Amendment. Although Professor Little concedes that exigency may have required the one-sided approach to the issue, she expresses particular concern that given the dearth of judicial precedent dealing with the Seventeenth Amendment, the Trinsey opinion will end up creating substantial uncertainty and confusion for lower courts and future litigants who are unable to discern the limits of the decision. Professor Little thus ends the article with a general jurisprudential discussion of the importance of candor in judicial decisions.

Keywords: constitutional law, Seventeenth Amendment, Pennsylvania law, right to vote, democratic elections, franchise, United States Senate, direct election of Senators, major-party nominations, state election procedures, judicial candor, John Heinz, constitutional rights, Trinsey, United States v. Classic

JEL Classification: K10, K19, K30, K39, K49

Suggested Citation

Little, Laura E., An Excursion into the Uncharted Waters of the Seventeenth Amendment (1991). Temple Law Review, Vol. 64, No. 629, 1991. Available at SSRN:

Laura E. Little (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-8955 (Phone)
215-204-1185 (Fax)

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics