Constitution
The Seventeenth Amendment: Direct Election of Senators
The Seventeenth Amendment moved the election of U.S. senators from state legislatures to the voters of each state and set rules for filling vacancies.
The text
Passed by Congress May 13, 1912. Ratified April 8, 1913.
Note: Article I, section 3, of the Constitution was modified by the 17th amendment.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Note: Article I, section 3, of the Constitution was modified by the 17th amendment.
In plain English
Direct election. Senators are "elected by the people" of each state, for six-year terms, with one vote each. Voters qualified to vote for the state's larger legislative house may vote for senators.
Vacancies. When a seat becomes vacant, the governor issues writs of election. A state legislature may authorize the governor to make a temporary appointment until the voters fill the seat by election. Most states permit this.
Existing senators. The Amendment does not affect the term of any senator chosen before it took effect.
What it replaced. Article I, Section 3 provided for senators "chosen by the Legislature" of each state. That made the Senate the branch where state governments had a voice in national lawmaking.
The Amendment left everything else in Section 3 intact, including equal representation of the states and the six-year term.
What the Founders said
The Framers chose election by state legislatures after considerable debate. Madison, in Federalist No. 62, defended the Senate's equal representation of the states, and its selection by state legislatures reflected the same idea: the state governments would have a direct part in the national government.
Several features of the Senate, including its longer terms, smaller size and election by legislatures, were meant to make it a steadying counterweight to the House.
By the late 19th century, deadlocks in legislatures, accusations of bribery in the choice of senators, and the Progressive movement's push for direct democracy built pressure for change. Many states had adopted advisory primaries, and Oregon's system effectively committed legislators to the popular choice. Congress proposed the Amendment in 1912, and it was ratified in April 1913.
How the courts have read it
The Amendment has generated little litigation. The cases that exist concern vacancies and related matters.
- Rodriguez v. Popular Democratic Party (1982): a state may fill a vacancy in its legislature through party recommendations, and the principle extends to the choice of interim officers.
- Valenti v. Rockefeller (1968): a federal court upheld a New York law allowing the governor to fill a Senate vacancy by appointment until the next election.
No modern decision has challenged the Amendment itself.
Why it matters now
The Seventeenth Amendment is a more contested subject on the right than one might expect. Some conservatives and constitutionalists argue that direct election removed the main structural protection of state governments in Washington. When state legislatures chose senators, a senator who voted to impose costly mandates on the states had to answer to the legislators who would reappoint him. Since 1913, the growth of federal mandates has been steady, and critics link the two developments.
Defenders of the Amendment reply that voters are the better judges, that legislatures often deadlocked and that the Founders' own principle was popular consent. They also note that repeal would give up an accountability that Americans now regard as basic.
The debate is a legitimate one, and a constitutionalist can take either side. What the Amendment does show is that federalism is not only a matter of court decisions; the structure that made the Senate the states' representative was an amendment away from being changed, and was.