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October 2014 Policy Study, Number 14-6

   

Should We Restore Bicameralism?

   

Repeal the 17th Amendment

   

 

The most direct option is to repeal the 17th Amendment and return the senatorial selection process to the state legislatures.  However, this cannot be accomplished on a state-by-state basis. The 17th Amendment can only be amended by ratifying through the Article V process a separate amendment that repeals the 17th Amendment.

 

Article V establishes two methods by which the Constitution may be amended:  Either two-thirds of both Houses of Congress propose the amendment or two-thirds of the states call a constitutional convention.[20] Amendments proposed by either method “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 Convention in three-fourths thereof…”[21] A state that ratifies an amendment agrees to be bound once three-fourths of the states have so agreed.[22] There is no guidance in the text of Article V or from contemporaneous expressions of its draftsmen that addresses whether a state may rescind its ratification.[23]

 

Congress declared the 17th Amendment ratified on April 8, 1913, with the Secretary of the Senate issuing his proclamation regarding same on May 31, 1913.  At that point, the 17th Amendment became part of the United States Constitution. There was no further action that could be taken by a state legislature regarding this matter after the ratification.  A constitutional amendment “by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.”[24]

 

Therefore, the states must follow the Article V procedures to amend the 17th Amendment. One option available to state legislatures is to wait until Congress passes an amendment repealing the 17th Amendment, which would become effective if three-fourths of the states ratify it.[25]

 

Another option available to state legislatures is to convene a constitutional convention and instruct their delegates to ratify an amendment repealing the 17th Amendment.[26]  The validity of delegate instructions have not been heavily litigated, but would likely be upheld in this context.  A handful of state courts, two federal district courts, and the Eighth Circuit Court of Appeals have all considered whether voters can issue binding instructions through referendum to their senators or representatives to vote for a particular amendment.[27]  These courts have unanimously struck down the proposed instructions.[28] However, these cases likely do not prohibit state legislatures from instructing delegates to an Article V constitutional convention.

 

The Founders intended members of Congress and delegates to constitutional conventions to act under instructions from their state legislatures, and in fact the Founders themselves acted under such instructions.  For instance: The New York legislature instructed its delegates to the Continental Congress to call a constitutional convention to amend the Articles of Confederation;[29] once the convention had been called, the Delaware legislature instructed its delegates to not amend Article V of the Articles of Confederation, which required equal representation for each state in Congress — an instruction that played a pivotal role in the Senate’s eventual structure;[30] and following the convention, four of the nine states required to ratify the Constitution did so with the express instruction to their respective congressional delegations to amend the Constitution to include a bill of rights.[31] Based on this history from immediately before, during, and after ratification of the Constitution, courts would likely uphold a state legislature’s instruction to its convention delegates to repeal the 17th Amendment.

 

However, it is important to note that in the 226 years since the states ratified the Constitution, the states have never convened a constitutional convention.  Therefore, the next section addresses a measure that the Indiana General Assembly could take on its own initiative that would have a similar effect to repealing the 17th Amendment without having to rely on actions in other states.

 

   

 

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