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Thursday, May 19, 2011

Is the Seventeenth Amendment Unconstitutional?

Now that I've got your attention, can I interest you in some term life insurance?

Just kidding.  This is a topic I have been kicking around in my head for some time now.  The Seventeenth Amendment, of course, required that U.S. Senators be "elected by the people" of each State.  Previously, the Constitution had provided that Senators be "chosen by the Legislature" of each State.  Attacking the Seventeenth Amendment has been part of a larger states' rights agenda for at least the past few years.  There is even a blog dedicated to repeal of the Seventeenth Amendment.  This position is typically dismissed by the intelligentsia as worthy of tin-foil hat status.  However, there is a small but thoughtful body of academic literature, by the likes of Vik Amar, Jay Bybee, and Todd Zywicki, addressing and in some cases disputing the conventional wisdom that the Seventeenth Amendment was a good idea.

My question, however, relates not to the advisability of the Seventeenth Amendment but to its constitutionality.  How can a constitutional amendment itself be unconstitutional?  If it violates Article V, of course.  Article V provides that there are two aspects of the Constitution that could never be changed, one of which is now moot.  The other is that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."  The argument for the unconstitutionality of the Seventeenth Amendment can be made in two moves:  first, the Constitution contemplates that the "States" are separate entities from "the people" of the States; and two, reducing every State's suffrage in the Senate to zero, while formally equal, does not satisy the contemplation of Article V that the States retain some "suffrage" in the Senate.

1.  The Constitution does not use the words "the people" and "the States" interchangeably.  For example, the Tenth Amendment reserves power to "the States" and, separately, to "the people."  Notably, the Supreme Court in Heller came to much the same conclusion in interpreting the words "the people" in the Second Amendment.  Though I think the Court glossed over the difference in connotation between "the people" acting collectively and "persons" acting individually, I think the Court was right that both are distinct from "the States."  Before the Seventeenth Amendment, the States, through their respective legislatures, chose their Senators.  Moreover, the legislatures could decide on other mechanisms through which Senators could be chosen, including popular election, which became more widespread in the early-twentieth century.  But each State had a voice in the composition of the Senate because each retained the prerogative of choosing for itself how it would select its Senators.  The Seventeenth Amendment changed that by requiring a particular mechanism, popular election, for the selection of Senators.  The Amendment thereby transfers the power to select Senators from the States to the people of the States.  Thus, each State is divested of its suffrage in the Senate.

2.  But if each State is equally divested of power, arguably Article V is not violated because each State still has "equal Suffrage in the Senate," i.e., no suffrage at all.  That is a plausible reading of Article V but, I submit, it may not be the best, for it puts all the weight on the word "equal" and none on "suffrage."  If Article V guaranteed "equality of suffrage," that would indicate that equality of the States is the sole objective of the provision.  But by guaranteeing "equal suffrage," Article V seems to guarantee both at the same time:  equality of suffrage and suffrage itself.

To see why, suppose that a married couple with three children decide to allow the children to decide every year where to go on their summer vacation.  Suppose further that the family draws up a compact reflecting this arrangement.  The compact states that future alterations to the compact, such as restrictions on potential vacation spots, can be made as long as (1) at least two of the three children agree to the changes; and (2) both parents agree as well.  However, the compact goes on to state that, notwithstanding the possibility of such future alteration, “no child shall be deprived, without his or her consent, of his or her equal suffrage in deciding where the family will take its summer vacation.”  Finally, suppose that, one year, the family decides to alter the agreement so that the parents will henceforth make the summer vacation plans on their own, without any input from the children.  The only dissenting voice is one of the children.  When she comes to complain that the aforementioned proviso has been breached, the parents explain that she has clearly misread it:  it merely restricts the family from favoring one child over another, but it does not restrain them from taking the decision away from the children entirely.  On this reading, each child still has an “equal" vote, which is to say no vote at all.  The dissenting child would have every reason to cry foul.  That is not the most plausible reading of the “equal suffrage” provision.  To the contrary, common sense, and conventional grammatical construction, would seem to dictate that where there is a constraint on ever depriving any child of “equal suffrage,” the constraint applies to the term “suffrage” every bit as much as it does to the term “equal.”

The symbolism in this little allegory is not hard to identify.  The parents represent “the People,” since, just as in a family unit, all powers derive from the parents, in our constitutional democracy, all powers derive from the people.  The children are, of course, the several States, and the compact is the Constitution.  Its delegation to the children of the power to choose the family vacation spot approximates the Constitution’s delegation to the States the power to choose their Senators.  Its provisions regarding alteration of the document roughly approximates Article V of the Constitution, and its proviso that no child will ever be deprived of “equal suffrage” in choosing the family vacation spot obviously tracks the language of Article V regarding the one aspect of the Constitution that can never be changed.

It is not hard to see why this was one of two aspects of the Constitution that could never be amended away.  The Constitution essentially sets up a triangular structure connecting the People, the federal government, and the States.  The federal government was designed to be representative of both of the other legs of the triangle, the People and the States.  The Seventeenth Amendment cuts off one of these legs -- the States no longer have a say in the composition of the federal government.  The essential triangular nature of the arrangement has therefore been irrevocably atered.

Posted by Michael J.Z. Mannheimer on May 19, 2011 at 02:58 PM | Permalink


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Sounds like the sort of argument which should have been raised at the time the amendment was proposed and adopted.

Also sounds like the sort of argument which might have a chance of persuading the sort of absolutely literal computer Kirk was always getting to self-destruct on Star Trek, but not a prayer of persuading a judiciary which doesn't hesitate to ignore much clearer issues if they feel like it.

No, if it's happening, we'll need an amendment.

Posted by: Brett bellmore | Jun 12, 2011 1:59:19 PM


That's a good point. One way of looking at the way the Constitution conceives of the States is that it contemplates that the "State" can act through a number of different agents: the legislature, a state convention, the governor, state judges, or the people. Arguably, so long as at least one of these agents continues to select the Senators for the State, with all States participating on an equal basis, Article V is not violated.

I suppose my argument is better as a structural one rather than a strictly textual one. The people are already represented in the House of Representatives. The original structure of the Constitution contemplated that both the people and the States would have a voice in the composition of the federal government. By leaving the choice of its Senators to the State legislature, who could then delegate that responsibility if it saw fit, the original Constitution permitted each State the prerogative of determining who was best capable of representing its interests in the Senate. It was that arrangement, I would argue, that Article V sought to preserve. By requiring that only one of the potential agents of the State -- the people thereof -- be permitted to choose its Senators, the Seventeenth Amendment destroys the triangular structure I described in the original post. Now the people are represented in both Houses of Congress and the States are represented in neither.

Posted by: Michael J.Z. Mannheimer | May 20, 2011 10:03:39 AM

Another way of saying it is that I vigorously disagree with the statement that "in a family unit, all powers derive from the parents." All power may be vested in the parents, but it does not derive from them.

Posted by: TJ | May 20, 2011 12:40:44 AM

I think there is a textual problem with this reading, as it seems to equate "the states" and "the legislatures of the state." But focus on the text of Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that . . . that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

While you note that the Constitution sometimes differentiates "the people" from "the states" -- leading you to suggest that giving the power to the people instead of the legislatures may divest "the states" of suffrage to give it to "the people" -- you don't seem to grapple with the fact that the text of Article V itself seems to recognize the difference between "the states" and "the legislatures of the states."

Posted by: Orin Kerr | May 19, 2011 4:33:39 PM

Assuming you are right, isn't the restriction in Article V repealed by implication with the adoption of any amendment that conflicts with it? Even dead hands can only hold on for so long....

Posted by: Justin Long | May 19, 2011 4:02:39 PM

I don't think this works. The short answer is that children are not legal fictions created to serve their parent's interests.

The longer answer is that you start off by creating a dichotomy between "states" and "the people." This distinction is hyper-formalistic. In substance, everyone recognizes that ultimately the state is nothing more than its people and is supposed to be acting in the people's interests. It is administratively convenient for the legal system to create a distinct entity. But it is still a purely formal construct.

Your argument then bootstraps on this formal construct, but now takes a pragmatic turn. You acknowledge that, as a purely textual matter, "equal suffrage" would be perfectly OK with equal suffrage of zero. The whole analogy to parents and children is to show that this construction might be pragmatically undesirable. But what you are doing is being hyper-formalist in playing up the state-people distinction, and then being hyper-pragmatic in ignoring the plain meaning of "equal suffrage." And the breakdown occurs because the pragmatic reasoning works when it is between parents and children, but not with a purely formal construct like a state. Children have substantively independent existence and interests from their parents; states do not have substantively independent existence from their people.

Posted by: TJ | May 19, 2011 3:44:53 PM

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