The Meaning of the Seventeenth Amendment and a Century of State Defiance

62 Pages Posted: 25 Aug 2011 Last revised: 10 Jul 2014

Date Written: February 1, 2012

Abstract

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 a comprehensive interpretation of the Seventeenth Amendment based on the text of the Amendment 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, this analysis reveals 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.

Using this interpretation as a baseline, this Article reviews state practice with respect to the filling of vacancies under the Seventeenth Amendment. Since the Amendment was adopted in 1913, there have been 244 vacancies in the U.S. Senate. 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. In addition, in many more cases the states have delayed significantly the required elections. These practices have cost the people 200 years of elected representation since the Constitution was amended to provide for direct election of senators, and there has been little resistance to this pattern of state defiance of the Constitution.

The appendices for this paper are available at the following URL: http://ssrn.com/abstract=2280361.

Keywords: Constitutional Law, Civil Rights, Seventeenth Amendment, Voting Rights

Suggested Citation

Clopton, Zachary D. and Art, Steven E., The Meaning of the Seventeenth Amendment and a Century of State Defiance (February 1, 2012). 107 Northwestern University Law Review 1181 (2013), Available at SSRN: https://ssrn.com/abstract=1915673

Zachary D. Clopton

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

Steven E. Art (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

University of Chicago

1101 East 58th Street
Chicago, IL 60637
United States

Loevy & Loevy

312 N May St
Chicago, IL 60607
United States

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