Civic Literacy Curriculum

Background

The two different houses of Congress have different sizes because each is intended to represent a different constituency and serve a different purpose. The basic theory behind the Senate’s structure and representation of states is that it reinforces federalism—that is, the sharing of powers between federal and state governments to make sure neither is too powerful.

By representing the states, the Senate was intended to be particularly sensitive to not just the states’ interests but their sovereignty. Senators would be more likely to protect the people’s liberty by enforcing the constitutional limits on federal power, since that expanded federal power would inevitably come at the cost of their state governments’ jurisdiction (see Federalist 62).

While there was never a question that the ultimate role of the Senate was to create a body of representatives who would protect the rights of the people in their respective states, how those senators were chosen has changed significantly.

Originally, Article 1, Section 3, Paragraph 1 read:

"The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote."

This meant that each state’s legislature would choose the state’s two senators. While the system was designed to enable state legislators to promote distinguished political leaders to the Senate—and often succeeded at this—it also ended up creating a host of problems when it did not work as well.

An amendment to change state selection to popular elections was first introduced in 1826, with similar amendments periodically offered and even passing the House of Representatives throughout the nineteenth century. The process of having state legislators choose US Senators became more dysfunctional in the late 1800s and early 1900s.

Some of the biggest, and often related, issues included vacant Senate seats when state legislatures could not agree on candidates, political corruption as corporations sought control of state legislatures to capture the Senate, and senators building political machines more focused on their own interests than those of either the state or the people of that state.

Many states began offering “advisory” elections, in which citizens would recommend their choice of senator, which the state legislatures would then officially select; this provided for de facto popular election in some—but not all—states.

Frustrated by the Senate’s refusal to make the much-desired change to direct election of all senators, by 1911, nearly two-thirds of the states applied for a constitutional convention to address the issue, taking advantage of the alternative method for proposing amendments provided by the Framers. To preempt the possibility of a convention, the Senate, finally, bowed to pressure and agreed to propose the 17th Amendment in 1911. (The House, which had again offered its own version, agreed to the Senate’s text a year later.)

After many years of debate, the 17th Amendment, ratified on April 8, 1913, changed the Constitution’s text to read:

“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.”

In other words, while senators still reinforce the structure of federalism, senators now directly represent, and are chosen by, the citizens of their states.

Both at the time and today some argue that the 17th Amendment was a mistake, and that federalism was better protected when state legislatures chose senators; state legislators would be sensitive to their own loss of power if Washington assumed authority over issues the Constitution left to the states. Others counter that the 17th Amendment actually ended up improving federalism, since one can choose state legislators to focus on state issues rather than simply treat them as a proxy vote for U.S. Senate.