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October 2014 Policy Study, Number 14-6


Should We Restore Bicameralism?





[1] U.S. Const. amend. XVII (“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.  The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.  When vacancies happen in the representation of any State in the Senate, the executive authority of such 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.  This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.” (emphasis added). 


[2] U.S., § 2m cl.1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”); U.S. I,§3, cl, (amended 1913) (“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.”).


[3] See Todd J. Zywicki, “Beyond the Shell and Husk of History: The History of the 17th Amendment and its Implications for Current Reform Proposals,” 45 CLEV. ST. L. REV.165, 170 (1997) [hereinafter Zywicki, History] (citing The Federalist No. 51 (James Madison) (explaining that different methods should be used to select members of the two houses of Congress as a “means of keeping each other in their proper places”)); Todd J. Zywicki, “Senators and Special Interests:  A Public Choice Analysis of the 17th Amendment,” 73 OR. L. REV. 1007,1014 n.42, 1034 (1994) (citing 2 J. Elliot, THE DEBATES OF THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 319 (1901) (remarks of A. Hamilton  at  New York ratifying convention) (“The equal vote in the Senate was given to secure the rights of the states…”); 2 J. STORY, COMMENTARIES ON THE CONSTITUTION 179, (1833) (“The equal vote in the Senate is…at once a constitutional recognition of the sovereignty remaining in the states, and an instrument for the preservation of it.  It guards them against (what they meant to resist as improper) a consolidation of the states into one simple republic.”))


[4]  See Zywicki, History, supra note 3 at 170-71 (citing the Federalist No. 62 (James Madison) explaining that allowing the states to select United States Senators would give the states “an agency in the formation of the federal government as secure as the authority of the former [the states]; and form a convenient link between the two systems”); The Federalist No. 59 (Alexander Hamilton)  (explaining that although problems might arise from allowing state legislatures to select senators, such problems were a necessary evil because to exclude the states from the federal government “would certainly deprive[] the States governments of that absolute safeguard which they will enjoy under this provision”); JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 (1966)(statement of Roger Sherman (“If the State [governments] are to be continued, it is necessary in order to preserve harmony between the Nation and State [governments] that the elections to the former [should] be made by the latter.”);  DEBATES IN THE FEDERAL CONVENTION OF 1787, S. DOC. NO. 404, 57th Cong., 1st Sess. 10 (1902) (statement by George Mason) (explaining that the national government can only be restrained from “swallow[ing] up” the state governments by “securing to the state legislatures the choice of the senators of the United States”)).


[5] Id. at 172.


[6] 170 (citing The Federalists No. 62 (James Madison) (explaining that the process of legislative selection provided “a convenient link between” the state and federal government and provided the states with agents in the federal government)).


[7]  Id. at 171.


[8]  Jay S. Bybee, “Ulysses at the Mast:  Democracy, Federalism, and the Sirens’ Song of the 17th Amendment,” 91 NW. U. L. REV. 500, 515 nn. 88, 95 (1997) (making this connection) (citing The Federalist No. 76 (Alexander Hamilton); The Federalist No. 64 (John Jay); The Federalist No. 66 (Alexander Hamilton)).   


[9] Zywicki, History, supra note 3, at 176 (citing The Federalist No. 51 (James Madison) (“In republican government, the legislative authority, necessarily, predominates.  The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependence on the society, will admit.”)).


[10] The 17th Amendment was proposed by the 62nd Congress on May 13, 1912, and was declared, in a proclamation of the Secretary of State dated May 31, 1913, to have been ratified by the legislatures of 36 of the 48 States. Ratification was completed on April 8, 1913.


[11]  Direct Election of Senators,, (last visited June 11, 2014.  


[12] Id.


[13] S. Rep. No. 530, 54th Congress, 1st Session10 (1896).


[14] S. Rep.No. 61-961, 13 (1911) (speculating that states would be freer to take up the important business of state governance if unburdened with the task of selecting United States senators).


[15] See Id. at 14 (positing that direct elections are easier to keep free from corruption than the process of having legislatures select United States senators).


[16] Id. at 14-15 (arguing that support for popular election was “almost unanimous”).


[17] See NATIONAL CONFERENCE OF STATE LEGISLATURES, MANDATE MONITOR: CATALOG OF COST SHIFTS TO STATES ( June, 2009), available at (citing e.g, Consolidated Appropriations Act, 2008, P.L. 110-a6a ( “continu [ing] to under fund federal commitments to NCLB [No Child Left Behind] and IDEA [Individuals with Disabilities Education Act] [;] reduc[ing] funds for state and local law enforcement assistance and the Clean Water State Revolving Fund[; and] reduc[ing] state shares of mineral leasing revenues by 2 percent”) .


[18] See, e.g., Low-Level Radioactive Waste Policy Act, P.L. 96-373 (requiring states to provide for the safe disposal of radioactive waste generated within their borders).  The United States Supreme Court ultimately held that the Act violated the Tenth Amendment.  New York v. United States, 505 U.S. 144 (1992).    


[19] See, e.g., Surface. Mining Control and Reclamation Act of 1977, 30 U.S.C.  1201 et seq, (2012).  The United States Supreme court upheld this statute, holding that it did not violate the 10th Amendment because it did not regulate “the States as States,” Hodel v. Va. Surface Mining & Reclamation Ass’n, 452U.S. 264, 287-88 (1982). even though the statute could be “characterized as a ‘land use regulation’ traditionally subject to state police power regulations.” Annotation 2—Tenth Amendment:  Effect of Provision on Federal Powers, FINDLAW (2017)


[20] U. S. Const. art. V.


[21] Id. “Any amendment to the Constitution passed in conformity with Article V is as valid as though it had been originally incorporated in it[.]” United States v. Dennis, 183 F.2nd 201 (2 Cir.1950), aff’d, Dennis v. United States, 341 U.S. 494 (1951), reh.den.


[22] See, e.g.,  Wise v. Chandler, 108 S.W.2d1024, 1027(Ky.1937 ) (ratification or rejection of amendment is final, just as acceptance or rejection of offer is final under contract law).


[23] Coleman v. Miller, 307 U.S. 433 (1939) (observing that Article V contains no language regarding withdrawal or rescission of ratification once it has been provided by a state); Peter Michael Jung, Validity of A State’s Recission of Its Ratification of A Federal Constitutional Amendment, 2 HARV.J.L. & PUB. POL’Y 233,276 (1979).


[24] Rhode Island v. Palmer, 253 U.S. 350,386 (1920). In Palmer, the Supreme Court was addressing seven challenges to the ratification process for the Eighteenth Amendment (“Prohibition of Intoxicating Liquors”).  It is instructive that the Supreme Court found that the Article V process had been followed and that the 18th Amendment was now a part of the United States Constitution.  It could not be further amended (or repealed) except by resort to Article V.  This is what later occurred.  In order to effect the repeal of the 18th Amendment, the Article V procedures were utilized to ratify what became the Twenty-First Amendment (“Repeal of the Eighteenth Amendment”).  “Upon the ratification of the Twenty-First Amendment [December 5, 1933] the Eighteenth Amendment at once became inoperative.  Neither the Congress nor the courts could give it continued vitality.” United States v. Chambers, 291 U.S. 217, 22 (1934).  It is evident based on the history of the two Amendments that the 17th Amendment is a part of the United States Constitution and, as such, can only be altered or repealed through Article V. A state legislature’s attempt to rescind its vote made over 100 years ago and made well after ratification would be a nullity.


[25] U. S. Const. Art. V.


[26] Id.


[27] Gralike v. Cook, 191 Fed 911 (8th Cir. 1999); Miller v Moore, 169 Fed 1119, 1124 (8th Cir. 1999); Baker v. Hazeltine, 3 F. Supp. 2nd 1088, 1095 (D.S.D. 1998); League of Women Voters v. Gwadosky, 966 F.  Supp. 52, 59 (D. Me. 1997); Bramberg v. Jones, 978 P.2nd 1240, 1250-51 (Cal.1999); Morrissey v State, 951 P.wd911, 916 (Colo. 1998); Donovan v. Priest, 931 S.W.2nd 119, 128 (Ark. 1996); In re Initiative Petition No. 364, 930 P.2d 186, 192 (Okla. 1996); see also Kris W. Kobach, May “We the People” Speak?: The Forgotten Role of Constituent Instructions in Amending the Constitution, 33 U.C. DAVIS L. REV. 1,12-16 (1999) (discussing these cases).


[28] See sourced cited in supra note 27.


[29] Kobach, supra note 27 at 55 (citing 5 ELLIOT, supra note3, at 96).


[30] Id. at 56-57 (citing 3 THE RECORDS OF THE FEDERAL CONVENTION OF1787 13-14 (Max Farrand ed., 1966)).


[31] Id. at 65-66 (citing Statement of Mr. Van Buren (1826), in ELLIOT, supra note 3, at 489).  Rhode Island also issued explicit instructions as a condition of ratification, but by the time it ratified the constitution, nine states had already ratified, making the constitution binding on all states. Id. Virginia and North Carolina also issued general statements to create a bill of rights, but did not issues explicit instructions. Id. (citing Ratification Message of North Carolina (Aug. 1, 1788), in ELLIOT, supra note 3, at 248-49; Ratification Message of Virginia (June 26, 1788), in ELLIOT, supra note 3, at 327)).


[32] Ind. Code §3-10-1-4 (a)(1).


[33] U.S. Const. art I, §4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators… shall be prescribed in each State by the Legislature thereof.”); Trinity v. Comm’r of Pa., 941 F2d 224, 231 (3rd Cir. 1991) (explaining that the 17th Amendment’s legislative history indicates that “the precise mode of senatorial nomination and election was to be purely local question and that the establishment of a primary system was to be left to the state”)  United States Supreme Court precedent also indicates that Senate primaries are optional,  not mandatory. See Id. at 232-33 (explaining that according to the Court “if primaries are part of the selection process, they cannot be conducted in a manner inconsistent with the popular election mandate of the constitution”) (citing United States v. Classic, 313 U. S. 299, 319 (1941) (emphasis added).


[34] Ind. Code §§3-10-1-2; 3-10-1-4(a)(1).


[35] Utah S.B. 54, enrolled during the most recent legislative session and effective on January 1, 2015, amends the process, while still allowing conventions to select nominees.


[36] See Ind. Code  §§3-10-1-2/ 3-10-1-4 (a)(1).


[37] See sources cited in supra notes 17-19.


[38] Bybee, supra note 8, at 541 (“[D]irect election turned the corporations attention from the legislature to the candidates themselves, lowering costs of securing influence.”)  “Direct election enabled lobbyists to focus directly on the senators rather than on the entire state legislature.” Id.


[39] Id. at 541 (explaining that the 17th Amendment has made senators “amenable to the influence of powerful lobbies”) Vik D. Amar, Note, the State and the Constitution 97 YALE L.J. 1111, 1129 (1988) (“By requiring Senatorial candidates to raise large amounts of money to campaign for many votes, the 17th Amendment may facilitate private interest group access to the federal government.”)


[40] According to the Federal Election Commission, outside groups spent $5.23 million during the Republican primary campaign in the 2012 Senate election.  In contrast, during the hotly contested 2010 Utah Republican Senate nominating process, outside groups only spent $350,000; $164,990 of which was spent between the May 8 Republican convention and the June 22 run-off primary. 


[41] For a complete breakdown of voter turnout statistics during these election cycles, see Voter Registration and Turnout Statistics, IND. SEC’Y OF STATE, (last visited June 11, 2014).


[42] Id


[43] Id.


[44] See Direct Election of Senators, supra note 11(noting that one of Indiana’s Senate seats remained vacant for two years because of a conflict between Republicans and Democrats).
Jeffrey D. Mohler, The Constitutional Requirements for Special Elections, 97 DICK.L.REV. 183,189-90 n. 47 (1992) (explaining the Election Act of 1866 and noting the belief at the time that the Act was the source of deadlocks).  




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