A Court Looks at the Real Problem With the 17th Amendment

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Everybody who voted for Roland Burris, raise your hand. Ok, only one hand went up, and that one is wearing handcuffs. Thanks, Blago.

For some reason, the only people who talk about the Seventeenth Amendment -- adopted in 1913 to establish the direct election of United States senators by popular vote, rather than by state legislatures -- are those who cherish the crazy dream of repealing it. (That's a subject for a later post.) Very seldom do we have a serious discussion of what's really wrong with it.

A recent case in the Seventh Circuit Court of Appeal, however, may offer courts a chance to examine the amendment's meaning and its purpose. Though legislatures have found ways to thwart it, the amendment was designed to make the Senate a body elected by the people.

The case, Judge v. Backer, is one in which I played a small role as a consultant for the plaintiffs.  It arises aftermath of the 2008 elections, when the flamboyantly corrupt Illinois Gov. Rod Blagojevich was trying to auction off the Senate seat vacated by Barack Obama.  Eventually, he awarded it to the pathetic Roland Burris.

No surprise there. Most people believe that the Seventeenth Amendment "gives" governors the power to name senators to serve the remainder of a senatorial term when the office is vacated by death or resignation.
     
But here's the text of the relevant parts of the amendment :

1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof ....
2. When vacancies happen in the representation of any State in the Senate, the executive authority of each 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.   
      
Read carefully.  The Senate "shall be composed of Senators ... elected by the people" of each state. That's the underlying policy of the amendment. How is that policy to be carried out? If a vacancy occurs, the "executive authority" (governor) of a state "shall" (not "may") call an election. If the state legislature chooses, it "may empower" the governor to make "temporary appointments." The appointee then serves until "the people fill the vacancies by election as the legislature may direct." (By contrast, House seats were and are required to be filled by elections called by "writs of election"; not even Blago could find a way to auction off a House seat.)

The original Article I gave governors the power to fill vacancies when the state legislatures were not in session. As Edward A. Zelinsky of Cardozo Law School recently pointed out, the senatorial appointment provision made sense in the eighteenth century, when legislatures met rarely and senators represented states, not people. Today it's an anomaly. No other high office in any branch of the federal government can constitutionally be given (or sold) by one individual.

After the amendment was approved, many states gave their governors power to appoint.  If only two years ramian in the unexpired term, some states allow the governor simply to fill the Senate seat for the rest of the term. This violates the text: it says that (1) the governor shall make a "temporary" appointment (2) until the people fill the vacancies (3) by election (4) as the legislature shall direct.

The most direct way to read this is that when a vacancy occurs, the governor must schedule a special election, and may if allowed by state law appoint a temporary senator to serve until that election. The legislature may pass laws governing the timing of such an election; if they don't, the governor will schedule it by "writ of election" (an English writ calling a vote at a specific time and place). The amendment--as I read it, at least--doesn't give anyone the power to fill the vacancy by appointment for the rest of the term. That wouldn't be "temporary."

That brings us to Illinois 2009.  When Blago named Burris, I suggested that the legislature could cut short Burris's term by scheduling a special election.  Republicans in the Illinois legislature requested an opinion from Attorney General Lisa Madigan, who responded that "neither the Federal Constitution nor the Illinois Constitution prohibits such a law. Indeed, a law providing the people of Illinois with an opportunity to elect a U.S. Senator would be entirely consistent with the purpose and text of the Seventeenth Amendment."

The Democratic majority in the Illinois legislature blocked the bill, however; too much chance that the seat might pass out of their hands.

At this point, a group of Chicago progressive lawyers* filed a lawsuit on behalf of two frustrated voters demanding a special election. (Here's where I come in, providing, at their request, pedantic historical nuggets and impractical advice). Even in the absence of a statute, they argued, the governor was required to issue a writ of election. Letting Burris serve out the entire term violated that constitutional duty.

The trial judge ruled against the voters; but in an opinion issued last week, the Seventh Circuit handed them something of a victory. In an opinion by Judge Diane Wood, the court wrote that 

the second paragraph of the Seventeenth Amendment establishes a rule for all circumstances: it imposes a duty on state executives to make sure that an election fills each vacancy; it obliges state legislatures to promulgate rules for vacancy elections; and it allows for temporary appointments until an election occurs. This demarcation of constitutional powers and duties between state executives and state legislatures advances the Seventeenth Amendment's primary objective of guaranteeing that senators are selected by the people of the states in popular elections.
      
For technical reasons, the court did not order an election, but simply sent the case back to the trial court to permit argument by the two sides. That may very well of course take longer than the time between now and the election.

But regardless of the practical result, what's important is that a court for the first time has taken seriously the amendment's preference for popular election. In a 1969 case called Backer v. Rockefeller, the Supreme Court had apparently indicated that Seventeenth Amendment special-election cases do not post a "substantial federal question." But that case was simply a one-sentence "summary affirmance" of a lower-court opinion, and no one really knows whether that's what the Court meant. The Seventh Circuit panel has reopened the issue.

The worst feature of the Seventeenth Amendment may finally undergo judicial examination. Governors and legislatures routinely game the system. The reasons are usually more genteel that Blagojevich's--but they are anti-democratic and partisan to the core. (They are also usually bad politics.) In Massachusetts, for example, the legislature stripped Republican Gov. Mitt Romney of his appointive power, then restored it to Gov. Deval Patrick so a safe Democratic vote could be installed when Sen. Edward Kennedy died. Alaska Gov. Frank Murkowski appointed his own daughter.  The parties will keep gaming--that's what they do, for heaven's sake--unless the people require special election as soon as possible after a vacancy occurs.  

Sen. Russell Feingold has proposed such a constitutional amendment. It will go nowhere.  It's not needed, though; state legislatures can abolish gubernatorial appointment whenever they choose. Two have--and they all should.

In a later post, I will discuss the faux historical arguments of the Becks and Wills, and the serious arguments of those who want to change the United States back to an elite republic.  But as far as I'm concerned, the real problem with the Seventeenth Amendment is not that it's too democratic, but that it's not democratic enough.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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