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

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