"How little we know what any amendment would produce!" exclaimed Senator Elihu Root on the floor of Congress in 1911. (1) Root was speaking during the debates leading to the direct election of United States Senators through ratification of the Seventeenth Amendment to the U.S. Constitution in 1913. (2) No longer would state legislatures elect the Senators for each state, (3) but instead, the Senators would be directly elected by the voters. In his preceding statement, Senator Root warned that "no one can foresee the far-reaching effect of changing the language of the Constitution in any manner which affects the relations of the States to the General Government." (4)
Another Senator thought he knew what the Seventeenth Amendment would bring for the United States when it was first debated: "[I]t was prophesied by Senator Hoar, who stood like Horatius at the bridge fighting for the old system, that popular election [of Senators] would in the end overthrow 'the whole scheme of the national Constitution as designed by the framers.'" (5) The original constitutional design of "[a]llowing state legislatures to select senators provided the states with an institutional weapon to defend their sphere of action." (6)
Debate over the Seventeenth Amendment--now ninety years old--and its effects on state power has hardly disappeared. In recent years, the Seventeenth Amendment has been the subject of legal scholarship, (7) congressional hearings and debate, (8) Supreme Court opinions, (9) popular press articles and commentary, (10) state legislative efforts aimed at repeal--one in Montana rejected as late as February 2003 (11)--and activist repeal movements. (12)
To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying positive political theory to examine the potential effects of the Seventeenth Amendment while remaining generally agnostic concerning whether the hypothesized decrease in state power represents a sound governing structure.
Two primary phenomena related to the Seventeenth Amendment experience and its effect on state legislatures are explored in this Article. First, this Article generally looks at the federal/state relationship as it was altered by the Seventeenth Amendment, including a brief survey of the literature that concludes that direct election divorced Senators from their allegiance with state legislatures and, indeed, put them in competition with state legislatures for currying interest group favor. As a result of an elimination of the element of a vertical separation of powers between the states and the federal government, state legislatures lost power. (13)
Second, this Article proceeds by examining the institutional weapons available to state legislatures in the pre-Seventeenth Amendment world resulting from state legislatures' influence in Congress. It posits that these weapons could be used to influence outcomes at the Supreme Court and other federal courts if those courts threatened the institutional interests of state legislatures, mainly the durability of state legislative acts. This Article hypothesizes that the Seventeenth Amendment left federal courts free to hold state laws unconstitutional without significant fear that the institutional interests of the federal court system and the interests of individual judges would face retaliation for such holdings.
To accomplish this examination, Part I of this Article briefly explains the alteration in constitutional design accomplished by the Seventeenth Amendment without unduly repeating the literature. Part II presents two theories of institutional behavior affecting the outcomes of Supreme Court decisions. …