The Purpose and Powers of the Senate, Part XXVI: Politicizing the Apolitical

    The 12^th Amendment would seem to have been the product of a similar balance of priorities to that of the previously discussed 11^th Amendment. To be sure, there was some manner of popular support for an alteration to the manner in which votes in the Electoral College translated into the final selection of the President and Vice-President. As these two offices were really the only positions in the whole of the federal government with a truly national constituency – and as the Elections of 1796 and 1800 had both given rise to no small amount of public controversy – it stands to reason that Americans living in every state and at various different levels of influence and income might have felt some degree of investment in how and whether some modification to the same was ultimately made. All that being said, it likewise cannot be denied the extent to which, at this point in American history, the state governments played a far more direct role – and had a much more direct interest – in who was elected President and how the relevant votes were ultimately tallied.

    For the first quarter of the 19^th century, recall, few states granted the responsibility for choosing presidential electors to the voting public residing therein. Pursuant to Article II, Section 1 of the Constitution, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress [.]” And to that end, most of the states chose to vest the relevant selection authority in their respective general assemblies. Granted, this state of affairs fluctuated substantially over the course of the first forty years that followed the ratification of the Constitution. In 1792, for example, ten out of fifteen states went with this method; by 1812 this ratio had dropped to nine out of eighteen. But by 1820, legislative selection still remained the norm in nearly half of the states. And at the time of the Election of 1800 – the outcome of which most directly contributed to the ratification of the 12^th Amendment in the summer of 1804 – ten out of sixteen states left the selection of presidential electors to their respective general assemblies. Based on these facts, it would seem fair to characterize American presidential elections prior to the beginning of the 1830s as primarily state-focused affairs in which the will of the general population was for the most part not represented. The state assemblies appointed the membership of the Senate and – for the most part – also chose the electors who would ultimately cast their state’s votes for President. The passage of the 12^th Amendment by Congress in 1803 would accordingly seem to represent an attempt by the states to use one of their constitutional powers to achieve a more desirable outcome by way of another of those powers.

    There is a good deal more to the story of the 12^th Amendment, of course. The reason that the Elections of 1796 and 1800 became such sources of consternation and controversy among a large swath of the American public – thus prompting the drafting and passage of the relevant amendment – was that the nation was then in the midst of a period of extreme partisan acrimony. Spinning out of the debates which accompanied the ratification of the Constitution, the formation of the Federalist and Democratic-Republican political factions in turn gave rise to intense disagreement over all manner of foreign and domestic policy initiatives, one outcome of which was the politicization of certain processes and mechanisms which were consciously designed to be apolitical. The election of the United States President was perhaps the most prominent among these, the basic framework thereof having been devised without any accommodation for formal political affiliations. The states were supposed to submit their votes by way of the Electoral College, Congress was supposed to tally them, and the top two finishers were to be declared President and Vice-President, respectively. Absent any particularly intense partisan conflict, this system functioned adequately. So long as only one faction was dominant, the top two finishers were bound to be politically aligned. But as soon as more than one faction could claim a significant portion of the votes of the Electoral College, problems began to arise.

    In 1796, the first-place finisher was John Adams (1735-1826), sitting Vice-President and national leader of the Federalists, while the runner-up was Thomas Jefferson (1743-1826), former Secretary of State and national leaders of the Republicans. Understandably, given the intensity of their disagreement, neither faction was particularly pleased with this outcome. This led, in turn, to attempts to game the system. The Republicans in particular put a great deal of effort into attempting to ensure that in the forthcoming Election of 1800, both of their desired candidates – namely Jefferson, representing the faction’s Southern wing, and former New York Senator Aaron Burr (1756-1836) standing in for its Northern contingent – would attain both the first and second place finishes. But while the resulting strategy – which was based primarily on the electioneering tactics of the aforementioned Burr – did result in the Republicans locking the Federalists out of the top two spots completely, the result was not the clean win which the former faction had sought. As the system itself remained unchanged, the Republicans had determined to have all of their chosen electors but one cast each of their two votes for Jefferson and Burr, respectively, while the last would cast only one of their votes and reserve this one for Jefferson. Jefferson would thus emerge with the most votes in total while Burr would come in second with exactly one less. Owing to some manner of miscommunication, however, every Republican Elector cast both of their votes for the two candidates, resulting in a tie, a contingent vote in the House, and a drawn-out period of uncertainty and tension. Not only, it seemed, had the mechanism by which the President was elected shown itself to be increasingly inadequate to the actual needs of the American people, but even an understanding of this inadequacy was not sufficient to counter the same. Wholesale reform was most definitely called for.

    Such reform remained the province primarily of the state assemblies, however. Not formally, of course. William Plumer was not wrong about that. But the state assemblies were entitled by the terms of the Constitution to both select and instruct the membership of the Senate. As long as the Senate was required to consent to any proposed amendments before they could be formally approved by Congress, therefore, the state assemblies could decide between them what any given effort in that vein would look like. And in 1803 – in light of the aforementioned electoral crises – they had every reason to seek after satisfaction. Notwithstanding the fact that many of the relevant legislators had made a point of ensuring that they themselves were responsible for disposing of their state’s Electoral College votes, two successive presidential elections had not gone as they intended. Though they had ensured that all of their state’s votes went to their preferred candidate for office – and though said candidate did ultimately succeed to the office of President – the Federalists who controlled the legislatures of states like New York and Connecticut in the leadup to the Election of 1796 had nevertheless been forced to make their peace with the fact that the office of Vice-President was ultimately won by a staunch Republican. And in 1800, while they managed to preclude this same outcome from happening again, the Republican legislators who controlled the assemblies of states like South Carolina and Georgia – and who were also solely responsible for allocated their state’s Electoral College votes – were still forced to endure a period of tension and uncertainty as the final tally resulted in a tie and the outcome of the vote was thrown to the House of Representatives. In spite of the measures which their members had taken in order to ensure a given outcome, in short, it seemed hardly any of the state assemblies were getting the “bang for their buck” they desired.

    Would Congress have approved of the proposed 12^th Amendment were it nor for the influence wielded by the dissatisfied state assemblies in the Senate? In truth, it is rather hard to say. It isn’t as though, in 1796 or in 1800, the American people were entirely unconcerned with the identity and political affiliation of whoever it was that won the office of President. Not all of them were particularly concerned, to be sure, in no small part because not all of them could vote. But in the states in which members of the Electoral College were chosen by popular poll – either at-large or by districts – it most certainly did matter to the average voter whether the outcome they desired was reflected in the outcome that occurred. Even in states that gave the power of selecting members of the Electoral College solely to the controlling majority of the relevant legislature, this was still bound to be the case to no small degree. The voters of, say, Delaware might not have chosen their Electoral College delegates directly, but they understood as well as anyone that their choice in the most recent legislative election in their state was essentially the same as their choice for President. If these voters had been responsible, in the 1802 mid-terms, for directly electing the portion of the Senate whose term was then set to be renewed, would they have based their choice on declared support for a constitutional amendment? Again, it is hard to say, though a thought does come to mind.

    In states where delegates to the Electoral College were chosen by the relevant legislature, it may have been the case that the voters living therein did support such amendments as the lawmakers serving therein felt that they had reason to seek. They had elected a slate of legislators during the most recent local election cycle knowing full well that those men would go on to choose their state’s delegation to the Electoral College. And having seen their desires once again thwarted by one of the basic structures of the Constitution, they were as eager as their lawmakers to see the whole mechanism remodeled. But in the moment, it bears remembering, when it came time for the state assemblies to provide instructions to their Senators, the feelings of the general electorate need not have been considered in the slightest. It would likely have behooved state lawmakers to do so – if they wanted to keep their jobs, at any rate – but they could just as well have entirely ignored public opinion and resolved instead to do what they felt was best for themselves. Given the time and the resources to explain their actions after the fact, the final results might not even have been all that bad. And what then? If the American people could demand one thing of their state legislators and these same men could do something else, what effect might this have had on the relationship between these people and their Senators? How often might the state assemblies have ended up attenuating the demands made by the American people of their representatives in the Senate? If the answers to these questions amount to anything other than “none at all” or “never” – and they would indeed appear to – it would seem fairer to ascribe the 12^th Amendment to the agency of the state assemblies rather than to that of the American people.

The Purpose and Powers of the Senate, Part XXV: “The Mandates of Other Legislatures”

    A discussion of the effect of the 17^th Amendment upon the character and behavior of the Senate would naturally be incomplete without exploring the manner in which said document has changed the very nature of the amendment process itself. As mandated in the text of the United States Constitution, there are two different mechanisms by which amendments might be drafted for later submission to the various states for ratification. In the first instance, either house of Congress may propose an amendment, said proposal may be debated and voted upon, and on being approved, said proposal may then be sent to the states for further approval, either by the various legislatures or by conventions summoned for that purpose. This is the method which has given rise to all twenty-seven extant amendments to the Constitution. In the second instance, upon the petition of two-thirds of the state governments, a constitutional convention shall be summoned by Congress. Said convention may then consider amendments, and whatever amendments are ultimately drafted may then be submitted to the states under the same procedure as described above. This method, while nearly enacted on a number of occasions, has never actually been utilized since the Constitution itself was ratified. The reason for this, as aforementioned, is that Congress has historically had little interest in relinquishing the control over the amendment process which it enjoys within the context of the first method cited. And so, while the membership of Congress has not always been all that enthusiastic about the prospect of amending the Constitution in response to popular agitation, they have always seen their way clear to doing so in order to stave off the calling of an Article V convention. From their perspective – and to be perhaps unforgivably colloquial – it has always seemed preferable to them to take control of the debate rather than trust whomever the states would send to a national convention not to give away the store.

    Bearing all of this in mind, it might be fair to characterize the two methods of amendment as being more or less opposed to one another in terms of whom they grant agency. The first method – which, again, has so far been the only method – places control primarily in the hands of the two houses of Congress. Granted, whatever amendments these bodies ultimately agree upon must be ratified by three-fourths of the states before they can become an integral part of the U.S. Constitution, but this does not change that fact that Congress remains entirely in control of the initial drafting process. The states – whether by way of their legislatures or through specially-summoned conventions – may certainly vote to reject a given amendment, but they lack the authority to offer modifications or to rewrite the relevant text. The second method, on the other hand – which, again, has so far never been tried – places control over the amendment process primarily in the hands of the states. Not only are they collectively responsible for summoning the resulting convention – a decision to which Congress has no choice but to submit – but they are also solely responsible for selecting their respective delegations. In this instance, then, the authors of whatever amendment or amendments happen to be produced can accurately be characterized as the direct agents of the states. One can thus be assured, in the event that such a gathering is convened, that the state governments would provide their delegates with a set of instructions and that the resulting text would reflect the collective priorities of the states as states.

    But consider, for a moment, with this dichotomy in mind, the nature of the relationship between the state governments and the federal government prior to the ratification of the 17^th Amendment. So long as the state legislatures were responsible for electing the membership of the Senate, there would presumably have been no need for them to attempt to summon a constitution convention. They might not have had control over the activities of the House of Representatives, but the Senate was then answerable directly to them. If a given state government desired a particular amendment, it could accordingly instruct its Senators either to propose or to support the same. And if a given state government desired to block a given amendment, it could naturally provide its Senators with instructions to that end as well. This is not theory, mind you; not a description of what the states might have done if they desired it. Rather, it is an accounting of how the amendment process used to work prior to 1913. From the very outset of the Constitution, state governments began prompting their Senators to support amendments to the same. The ten amendments that form the Bill of Rights were perhaps the most famous products of this dynamic, but it also later gave rise to the 11^th Amendment – removing suits by private individuals against the states from federal jurisdiction – the 12^th Amendment – altering the manner by which the President and Vice-President are elected – and the much-talked-about 17^th Amendment. Granted, the 17^th Amendment represents something of an unusual case. As discussed in a previous entry, the fact that it sought to target their powerbase prompted certain members of the Senate to offer an unusual degree of resistance. In the end, however, with the threat of an Article V convention looming, all but the most recalcitrant Senators were forced to give way.

    This is not to say that the passage of the 17^th Amendment represents the only instance in which certain Senators sought to resist the instructions of their state assemblies within the specific context of attempting to amend the constitution. In 1803, for example, as Congress was in the midst of debating the text of what would eventually become the 12^th Amendment, several Senators expressed their consternation at the degree to which the state assemblies had sought to become active participants in the process. One of these men, Connecticut Federalist Uriah Tracy (1755-1807), expressed his discomfort in the form of a question. “Can it be thought [,]” he said, “Either proper or Constitutional for the State Legislatures to assume the power of instructing to propose to them a measure when the power is not only not given to them but given exclusively to Congress?” To Tracy’s thinking, it seemed, the terms of Article V envisioned only the, “Uninfluenced movement” of the members of Congress. As no explicit provision was made for state instruction, such actions were therefore inappropriate at best and unconstitutional at worst. Indeed, it struck him as possessing about as much propriety as Congress endeavoring to, “Make a law attempting to bind the State Legislatures to ratify, as the Legislatures, by instructions, bind Congress to propose.” The Constitution did not expressly declare that Congress was forbidden from thus binding the state assemblies, but Tracy was nonetheless confident that no right-minded person would make a claim to the contrary.  

    One of Tracy’s fellow New England Federalists, New Hampshire’s William Plumer (1759-1850), also attempted to thread this same needle between acknowledging the overall propriety of legislative instruction and asserting the impropriety of doing so during a discussion of constitutional amendments. “The State Legislatures [,]” he pointedly declared,

Have nothing to do till after Congress has proposed the amendments, and then it is their exclusive province either to ratify or reject them. But they have no authority to direct or even request Congress to propose particular amendments for themselves to ratify. Instructions on this subject are therefore improper. It is an assumption of power, not the exercise of a right. It is an attempt to create an undue influence over Congress. It is prejudging the question before it is proposed by the only authority that has the Constitutional right to move it. If these instructions are obligatory, our votes must be governed not by the convictions of our own judgments, or the propriety and fitness of the measure, but by the mandates of other Legislatures. This would destroy one of the checks that the Constitution has provided against innovation. State Legislatures may, on some subjects, instruct their Senators; but on this, their instructions ought not to influence, much less bind us, to propose amendments, unless we ourselves deem them necessary.

Plumer’s dilemma, of course, was that he had no solid proof to back up his central argument. He was not incorrect in stating that the exercise of influence by the state legislatures over the amending process represented “an assumption of power” which the text of the Constitution at no point expressly authorized. His assertion that the instructions provided by the state assemblies to their Senators “ought not to influence, much less bind” them was also a perfectly valid one. The only trouble was that the Constitution had little to say on the matter.

    It was true that the Constitution did not declare that the state legislatures were supposed to play a key role in the drafting of amendments as well as their ratification. But it was also true that this selfsame document did grant the state legislatures the right to elect the membership of the Senate. And as previously discussed, this right carried with it the practical implication that a Senator who chose not to follow the explicit instructions of their legislature risked having their candidacy passed over if they sought reelection. If the plain text of the Constitution is any kind of guide, the Framers did not contemplate the emergence of this dynamic, either, but nor did they expressly forbid it. And nor did they forbid the state assemblies from influencing the aforementioned amending process. What they did do, for better or worse, was give the state assemblies a means of asserting themselves within the framework of the federal government. Plumer’s argument, such as it was, was that sometimes these assertions were permissible and sometimes they were not. But why was that? Why was one assertion of power not expressly granted by the Constitution valid while the other was not? Plumer had no answer, other than to say – in so many words – that the whole thing felt wrong. He did not claim that allowing the state legislatures to partially direct the amending process was explicitly “unconstitutional,” because it quite simply was not. Instead, he complained that it represented “an assumption of power,” an “undue influence,” something that would “destroy one of the checks that the Constitution has provided against innovation.” “It is prejudging the question [,]” he said, “Before it is proposed by the only authority that has the Constitutional right to move it.” It was all very well-said, to be sure, and quite probably had the ring of truth. Indeed, it seems unlikely that the Framers actually intended to for the states to take up such a direct role in the amending process. But as far as the plain text of the Constitution is concerned, there was nothing at all improper with the way the state legislatures had taken to behaving.

    In the end, what Plumer was asking for was really just too much. The state assemblies, he said, while permitted to instruct their Senator in most matters, should not have attempted to do so in the context of constitutional amendments. This is, again, a perfectly valid position to take in principle, but how could it possibly have been enforced? The federal government was not in a position to penalize a state legislature if it gave instructions to its Senator to propose or support an amendment to the Constitution. Nor could it have punished the state lawmakers who decided no to reelect a given Senator who declined to follow their instructions. Not only did the necessary mechanisms simply not exist, but the states would surely have decried any attempt to interfere in the exercise of one of their constitutional prerogatives and bogged the whole question down in years of drawn-out litigation. And in the meantime, practically speaking, Senators would still have to fear for their jobs based on whether they followed instructions or not. They may have agreed with the likes of Plumer and Tracy, even protested to the relevant legislatures that the amending process was rightfully off-limits to state interference. But absent either clarification by the Supreme Court as to the exact parameters of the state instruction power or – paradoxically enough – an amendment to the Constitution expressly forbidding state interference in the amending process, the states would continue to do what the Constitution plainly permitted them.

    And so they did, as aforementioned, until 1913. As a result of the ratification of the 17^th Amendment, a line has since been drawn between the two mechanisms of amendment. Either the process takes place principally at the behest of Congress, or the process takes place principally at the behest of the states. There is no longer any middle ground that permits input from each camp; no means by which the states can conceivably share the authority with Congress. And while the practical results of this change might be particularly hard to measure, they are not, on contemplation, all that hard to conceive. From having been the agents of the state legislatures within the United States Congress, Senators have since become the agents of the state populations within the United States Congress. Need it be said that the two constituencies are bound to have different perspectives? Different priorities? Different things they want to see accomplished? Consider, by way of example, the aforementioned 11^th Amendment.

    Approved by Congress in 1794 and ratified by the requisite number of states in 1795, the 11^th Amendment to the United States Constitution asserts, in full, that,

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Granting that this might seem, to a modern audience, a rather esoteric alteration, it bears noting that at the time its passage was deemed to be of the utmost importance. Two years prior in the case Chisholm v. Georgia (1793), a very important precedent had been set by the United States Supreme Court. Invoking the principle of sovereign immunity in an attempt to dodge responsibility after being sued by a jilted merchant – whereby the state claimed that it could not be sued in a jurisdiction which, as an enactor of the Constitution, it had helped to create – Georgia had been brought to federal court. Declining to send advocates to plead their case – in keeping with its position that the entire proceeding was invalid – the government of the Peach States was ultimately found to be liable. By a 4-1 majority, the Court declared that the Constitution’s assertion that, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority [and] to all Cases […] between a State and Citizens of another State” essentially abrogated Georgia’s claim to any species of legal immunity.

    The state governments, understandably, were quite alarmed at this finding. If the states could be sued within the jurisdiction of the federal courts, they might conceivably find themselves constantly barraged by claims as to the responsibility for all manner of unintended harm. And if federal judges were to be the administering officers in these cases, why would they not take very possible opportunity to weaken the power of the states at the expense of the federal government? Nothing short of the states’ sovereignty seemed to be at stake. Accordingly, the state legislatures sprang into action. In little more than a year, they secured the passage of an amendment – through their collective control over the Senate – narrowing federal court jurisdiction to exclude the states as valid defendants in suits brought by individuals. And less than a year after that, they accomplished its successful ratification. Chisholm v. Georgia thereafter went down in history as one of the most consequential Supreme Court cases which that body ever heard, but one which ultimately also set an extremely brief precedent. Two years from the time it was decided – though it gave rise to a constitutional amendment – it was effectively rendered null and void.

    Now imagine, in the mode of a thought experiment, this exact same scenario playing out but for the alteration of one key circumstance. Instead of being elected by the membership of the state assemblies, imagine that Senators were at that time chosen by a popular ballot of their state’s citizens. With this change in mind, does it seem as likely that Congress would have secured the passage of the 11^th Amendment quite as quickly, or indeed at all? The state government, recall, were the ones who stood to suffer in the event that the Chisholm v. Georgia precedent was allowed to stand. It accordingly stood to reason that they would use their control over the Senate to see it abrogated as soon as possible. But if Senators had to answer only to the voters in their states, what then? The American people have often – though not always – tended to trust their state government to a greater degree than its federal counterpart. They might accordingly have looked upon a suit brought against the former as a kid of personal attack which it was worthwhile warding off. But then again, they might have viewed the Chisolm decision as a boon. If they felt that they had been harmed as the result of the actions of a state other than their own, why shouldn’t they have enjoyed the right to sue said state in federal court?

    The original plaintiff in the Supreme Court case, Alexander Chisholm, was a merchant from South Carolina who had become the executor of the estate of a colleague by the name of Robert Farquhar. Farquhar, it seemed, had supplied the state or Georgia with much-needed supplies at a critical moment during the Revolutionary War in the waning months of 1777. But while Farquhar was promised the sum of $169,613.33, at the time of his death in 1784 the debt yet remained unpaid. This is what Chisholm was demanding of the state of Georgia; the settling of a valid agreement which Georgia had entered into freely. Was this in the least bit unreasonable? By suing to recover the aforementioned debt, was Chisholm doing anything at all extraordinary? Doubtless, many Georgians would have done just the same in his position. Doubtless, many Americans across the entire union of states would have done so as well. Why, then, should such an action have been rendered invalid? The simple answer, of course, is that it threatened the sovereignty of the states. But if the states had no power over the membership of the Senate? If the 17^th Amendment, in essence, had been ratified in 1790 instead of 1913? Under such circumstances, one does honestly wonder whether the 11^th Amendment would have been proposed. Absent state control over the Senate, the familiar outcome seems far less likely.

    By this very same token, compare the nature of some of the amendments passed before 1913 and the nature of some of those that have been passed in the century since. Prior to this inflection point, the text of the Constitution had been amended fully sixteen times. The first ten amendments, collectively known as the Bill of Rights, contain a mix of guarantees against federal interference in private life, protections against the stifling of criticism or protest, reinforcement of Common Law legal procedure, and a parting assertion of state power outside the established federal sphere. As it can be proved that the state governments helped to advocate for their passage – and as the 10^th Amendment in particular speaks directly to state priorities – the Bill of Rights would seem to exist in something of a gray area. Both the states and the American people had an interest in seeing the relevant amendments approved, and the principal critics of the Constitution also widely claimed the state governments as their primary bastions of resistance as the parameters of the new federal government were still actively being settled. While it may accordingly be more than fair to characterize the Bill of Rights as a primarily popular initiative, the extent to which it also represents the opening salvo in the ongoing struggle between the state governments and the federal government over ultimate primacy within the American republic cannot be denied.

    The 11^th Amendment, as aforementioned, while doubtless the beneficiary of some amount of popular support, is comparatively easy to assign to the initiative of the various state governments. They were the party most likely to derive harm from the precedent set by Chisholm v. Georgia, and they were accordingly most likely to extract material benefit from preventing out-of-state lawsuits from ending up in the federal courts. Indeed, the ratification of the 11^th Amendment could actually be said to have narrowed the scope of the liberties of the American people. Whereas, under the terms of the Chisholm ruling, a citizen of one state was free to sue the government of another in federal court in order to remedy a given harm or recover damages, the promulgation of the 11^th Amendment ensured that unless the state being sued consented to be brought to court, the relevant citizen was left with no option whatsoever. Left in direct control of the Senate without the intervention of the state assemblies, one wonders if the American people would have prompted the latter’s passage quite so swiftly or forcefully as the state assemblies did in fact.

The Purpose and Powers of the Senate, Part XXIV: “A Vulgar, Commonplace Empire”

    The 17^th Amendment’s effect on the Senate’s treaty power makes for much the same kind of story as that of its effect upon the power of appointment. That is, while state assemblies did not always take a concerted interest in the terms of the international agreement upon which it was the Senate’s responsibility to weigh in, they did do so enough times for the ratification of the amendment to make a difference. In 1898, for example, as the Spanish-American War was coming to a close, a number of state assemblies sent explicit instructions to their Senators to vote in favor of the peace treaty that was then under consideration. In light of the terms of said treaty, this might seem like a rather odd directive to have to deliver. Not only did the document guarantee the independence of Cuba from Spain – the ostensible goal for which the United States had been fighting – but it also mandated the transfer of the Spanish colonies of Puerto Rico, the Philippines, and Guam to immediate American control. For three months’ work, one could hardly imagine a more favorable outcome. And yet, it was the scale of the American victory – the magnitude of the spoils which the United States was preparing to reap – that ended up provoking uncertainty among the membership of the Senate. The Republican Party, in spite of the fact that it controlled both houses of Congress and the office of President, was divided at that time between what might be called a mainstream wing of pro-business, pro-gold standard, territorial expansionists and a smaller but no less vocal contingent of populists, pro-silverites, and anti-imperialists. Granted, the pro-silver faction – who had gone so far as to support William Jennings Bryan (1860-1925), the Democratic nominee for President, during the Election of 1896 – was in the process of fading away, but there nonetheless remained a fairly avid group of Republican Senators who looked in particular upon the foreign policy of the McKinley Administration with a sense of skepticism verging on horror.

    The Republican Senator from Massachusetts, the aforementioned George Frisbie Hoar, was one such dissident voice. In 1897, as the United States was preparing to finally annex the Hawaiian Islands after a years-long back and forth between Republican and Democratic administrations, Hoar not only met with a deputation of Hawaiian leaders who had come to Washington to oppose the act, he personally presented their written petition to Congress and went out of his way to engineer the defeat of the relevant treaty when it was submitted to the Senate. Among those who supported Hoar in this effort was South Dakota Republican William F. Pettigrew (1848-1925), a former silverite who had previously represented the unincorporated Dakota Territory in the House of Representatives. As the aforementioned conflict between the United States and Spain was winding down in the summer of 1898, Pettigrew gave an impassioned speech in response to the efforts of President McKinley and his supporters to once again annex the far-flung Pacific islands, this time by way of a joint resolution of Congress. Doubtless fully aware that his cause was lost – joint resolutions require only the support of a simple majority, and Hawaii had since proven its usefulness to the United States Navy during its recent campaign in the Philippines – the South Dakotan accordingly declined to spare his colleagues the full force of his disillusioned eloquence. “The American flag went up on Hawaii in dishonor [,]” he said, referring to the coup d’état that had brought down the Hawaiian Kingdom in 1893. “It came down in honor, and if it goes up again now it will go up in infamy and shame and this Government will join the robber nations of the world.”

    While the fact that the relevant resolution was ultimately passed – thus transforming the ad hoc Hawaiian Republic into the unincorporated Hawaii Territory – is not in the least bit surprising, certain of the effects of the thing are nevertheless worth reflecting upon. The final vote took place – in what was then no doubt judged to be an auspicious bit of happenstance but which now seems rather gross – on July 4^th, 1898. The Spanish-American War was at that point still ongoing, with hostilities not set to conclude until the middle of the following month. The most recent federal elections, meanwhile, had taken place almost two years prior, in November of 1896. Those former Silver Republicans who had not defected to the Democrats had mostly reintegrated themselves into the GOP proper, it is true, but there nevertheless remained a small group of Congressmen and Senators who still had reason to feel at odds with the mainstream of their party. And while the war with Spain had helped to solidify the dominance of President McKinley’s brand of Republican Party politics, the conflict over Hawaii ensured – at least for the moment – that some manner of breach would remain. When a treaty securing peace between the American republic and the Spanish kingdom was thereafter submitted to the Senate following its signing in Paris in December of 1898, it accordingly stood to reason that some of the members of the Republican Senate majority would be no mood to be cooperative.

    Senator Hoar, unsurprisingly, led the charge against ratification. Summing up his position, he declared that, “This Treaty will make us a vulgar, commonplace empire, controlling subject races and vassal states, in which one class must forever rule and other classes must forever obey.” He was not joined in this effort by very many of his Senate colleagues, it must be said. Fellow New England Republican Eugene Hale (1836-1918) and Missouri Democrat George Graham Vest (1830-1904) were assuredly the most prominent among them. But Hoar’s position did enjoy the support of a substantial segment of the American public. In the form of the American Anti-Imperialist League, a host of influential figures in the worlds of literature, politics, the arts, and industry – among them noted industrialist Andrew Carnegie (1835-1919), former President Grover Cleveland, author and humorist Mark Twain (1835-1910), and union leader Samuel Gompers (1850-1924) – came out against the creation of a globe-spanning American empire. With this kind of backing, and in the midst of discussions on the supposed benefits of “Christian civilization” and whether subject peoples would have rights under the Constitution, it therefore doubtless seemed more than a little uncertain from outside Washington whether or not the treaty would ultimately be approved or defeated.

    It was for this reason, no doubt, that certain Republican-controlled state assemblies made a point of sending instructions to their representatives in the Senate. California did so, for one, as the debate over the treaty dragged on into the early months of 1899. Evidently, the Republican majority in Sacramento felt there was some cause to worry about the manner in which either Senator Stephen White (1853-1901) or Senator George Perkins (1839-1923) intended to cast their vote. As did the Republican legislators who formed the majority in the South Dakota state assembly. They may not have had much cause for concern as to the probable actions of Senator James H. Kyle (1854-1901), a man whom history records as an avid supporter of the war with Spain, but such was demonstrably not the case when it came to the aforementioned Richard Pettigrew. In addition to being something of an anti-imperialist, it should be noted, Pettigrew was also an unapologetic anti-capitalist who famously wrote in his book Triumphant Plutocracy (1921) that, “Capital is stolen labor and its only function is to steal more labor.” More to the point, he also observed in that same tome – of one of the spoils of the Spanish-American War – that, “The sum and substance of the conquest of the Philippines is to find a field where cheap labor can be secured, labor that does not strike, that does not belong to a union, that does not need an army to keep it in leading strings, that will make goods for the trusts of this country.” Within the context of a Republican Party increasingly dominated by expansionists and capitalists, a man who could make such bold and damning claims was bound to arouse his share of anxiety. No wonder, then, that the same legislative body which had sent him to the Senate later tried to reign him in.

    The Treaty of Paris (1898) was ultimately ratified, of course. By a margin of 57-27, the United States Senate voted to take control of the Philippines, Puerto Rico, and Guam, and to oversee the eventual creation of a (semi) independent Cuban government. The opposition, when the votes were tallied, came principally from the minority Democrats, though two Republican Senators did elect to carry their dissent to its final conclusion. One, surprising nobody, was George Frisbie Hoar. The other, no less foreseeable, was the aforementioned Eugene Hale. Richard Pettigrew, evidently, was convinced to stow his dislike for the prospect of the American republic becoming an empire in the style of contemporary Europe. His did not vote to reject the treaty, though his declarations before and after the event would seem to indicate that he normally would have. And for his troubles, his benefactors in the South Dakota legislature then declined to re-elect him in 1900. One wonders how many other Republican Senators underwent a similar experience. How many, that is, ultimately agreed to vote against their conscience only to be rewarded for their service by being tossed aside? And what if they hadn’t been accordingly instructed? Fifty-seven votes was just over the two-thirds majority required for the Treaty of Paris to receive the assent of the Senate. What if the state legislatures had had no power over the Senate? What if Pettigrew and a handful of other Republicans had voted to reject to treaty? Would the war with Spain continued? Would the agreement have been re-negotiated? Would the United States have proceeded to establish its sovereignty over the aforementioned territories? In light of the subsequent history of Puerto Rico and the Philippines in particular, an alternative outcome such as this would seem to represent a drastic diversion from American history as we know it. And while the 17^th Amendment came too late to alter this event, the mere fact of it would seem to indicate that subsequent treaty votes have very likely been affected.

    For somewhat more recent examples of how the 17^th Amendment has altered the expression of the Senate’s treaty power – or rather how the lack of state influence over the treaty power has affected the state/federal relationship – consider some of responses elicited by the General Agreement on Tariffs and Trade (GATT) treaty which gave rise to the World Trade Organization (WTO) and the subsequent ratification of the North American Free Trade Agreement (NAFTA), both in 1995. Leading up to the vote on the former, the National Conference of State Legislatures – a non-partisan organization formed in 1975 in order, to quote its own literature, “To advance the effectiveness, independence and integrity of legislatures and to foster […] especially in support of state sovereignty and state flexibility and protection from unfunded federal mandates and unwarranted federal preemption” – made a point of supporting the agreement while also staking out a qualification. The NCSL was in favor of the creation of the WTO, it said, “As long as the pact includes guarantees for state legislative authority and principles of federalism.” Shortly thereafter, as the Senate prepared to consider the treaty which would go on to establish NAFTA, this same organization offered a further suggestion: the creation of an official liaison between the states and the U.S. Trade Representative. In order, “To best protect states measures,” the proposal declared at the time, “State legislatures should be part of the state-federal communications loop.”

    One cannot help but regard these kinds of statements with a certain amount of amusement. Because what purpose did the pre-1913 Senate really serve if not to ensure that the state legislatures were, “Part of the state-federal communications loop [?]” What other purpose did the Framers have in mind when they mandated that the state assemblies would appoint the membership of the Senate than the protection of, “State legislative authority and [the] principles of federalism [?]” What was the NCSL pining after – whether its members knew they were doing it or not – but a kind of reversion to the status quo before the ratification of the 17^th Amendment? They felt the absence of a state voice in the midst of high-level trade discussions and asked whether provision might be made to address their concerns. Would not the pre-1913 Senate have addressed this need directly? If the state legislatures had retained control over the election of Senators, there would seemingly have been no need for them to try to insert themselves into the treaty process. Through their ability to appoint and instruct Senators, the members of the state assemblies could have asserted themselves as much as they wished. Granted, not every Senator would have done as they were told, particularly if a transfer of power at the state level assured their defeat when next they faced reelection. But as the cited example of Richard Pettigrew would seem to prove, sometimes even the most vociferous Senators could successfully be brought to heel. One is further given cause to wonder whether an organization like the NCSL would have been founded in the first place in the event that the 17^th Amendment was never ratified. If the Senate still existed for the purpose of allowing the state governments to influence federal policy, what possible need would there have been for the creation of a lobby group whose purpose is to seek alternative means of accomplishing this same goal? Indeed, absent the 17^th Amendment, the whole tenor of the state/federal relationship would most assuredly be quite different.

The Purpose and Powers of the Senate, Part XXIII: “Each State Ought to be Able to Protect Itself”

    Beyond the changes that have been produced by the ratification of the 17^th Amendment to the general behavior and average tenure of individual Senators, a significant alteration has also taken place in terms of the role which the Senate has taken to playing within the federal power structure. Previously, under the original terms of the Constitution, one of the Senate’s primary functions was to act as a kind of braking mechanism upon federal legislation that directly concerned or effected the states. Having been elected by members of the various state assemblies, individual Senators were ideally equipped to both communicate the concerns of their respective state governments to Congress and relay the competing priorities of Congress back to the former. In this way, a degree of harmonization was achieved whereby federal legislation was crafted with due consideration for how it would impact the states as distinct political entities while the specific priorities of the various states in turn became part of the legislative conversation taking place at the federal level. Granted, this is a somewhat idealized characterization of how the state/federal relationship actually functioned in the century preceding the ratification of the 17^th Amendment, but one which nevertheless seems to conform to the intentions originally expressed by the Framers in 1787. Connecticut’s Roger Sherman (1721-1793) put it as succinctly as anyone could have at the time: “As the States would remain possessed of certain individual rights, each State ought to be able to protect itself [.]” Protection, in essence, was what the Senate was supposed to provide.

    By transferring the power of election from the state assemblies the general public, however, the 17^th Amendment effectively nullified this give-and-take dynamic and transformed the United States Senate into a sort of miniature replication of the House of Representatives. Rather than function as the mouthpiece of the states as political entities within the context of the federal power structure, it has instead become just another part of that same administrative framework. Now, Senators are elected by the American people within a specifically federal context in order to execute specifically federal responsibilities. That is, they are sent to the Senate – as far as the voters are concerned – mainly to ensure that the inhabitants of every state have some degree of input into the appointment of Cabinet secretaries and federal judges as well as the ratification of treaties. The upper house does still perform the same legislative functions which have fallen within its remit since the Constitution was initially ratified, but the manner in which the American people and their Senator tend to conceive of these functions has substantially changed. Whereas Senators were previously positioned to debate, shape, and potentially obstruct legislation from the position of being agents acting directly on behalf of the states, they now approach these same responsibilities chiefly as members of a given party acting on behalf of these who support them. Some of them – indeed, many of them – do still profess to act with the interests of their home state in mind, even up to the point where they sometimes attempt to weaken the federal government so as to provide more latitude for state action. But many of them – perhaps even most of them – have also shown themselves to be perfectly willing to prioritize the national mandates of their respective parties over the specific local needs of the communities they claim to represent. They prioritize spending increases without necessarily accounting for the impact on their home states. They hand down federal directives without knowing how the governments of their states will fund them. Without in any way claiming these kinds of behaviors as evidence of disfunction, it would nonetheless seem fair to say that the Senate as it existed prior to the ratification of the 17^th Amendment simply would not have been able to function in this way.

    As to the specific constitutional responsibilities of the Senate and the manner in which the application of the 17^th Amendment has altered them, let us consider each one in turn. Beginning with the power to advise and consent to executive branch nominations, what changes there have been seemed to have been both subtle and indirect. This is rather in keeping with the nature of the responsibility itself and the extent to which it was ever closely affected by the legislative appointment of Senators. For the most part, during the era that preceded the ratification of the 17th Amendment, the state assemblies did not appear to take all that much interest in who was ultimately approved to fill this or that position in Cabinet. But there have been exceptions to this rule. Indeed, some of them are quite famous. In June of 1834, for example, the Senate voted to reject the nomination of Roger B. Taney for the post of Secretary of the Treasury by a final tally of 18-28. Not only did this represent the first ever instance in which the upper chamber had chosen to deny an attempted appointment on the part of the executive branch, but at least four of the Senators who voted to reject the nomination did so against the explicit instructions of the relevant state assemblies. Given the specific context – the so-called “Bank War” of 1832-1836 – and the partisan animosity to which it gave rise, it is perhaps not all that surprising that a state legislature might have found itself at odds with one of its own Senators. That being said, the fact is nonetheless worth remarking upon that at least some state assemblies made a point of providing specific instructions to their respective Senators as to how they should vote upon Taney’s nomination.

    A not dissimilar incident occurred in 1881 following the inauguration of Republican James A. Garfield (1831-1881) as President. The aforementioned New York Senator Roscoe Conkling had been, in the leadup to the 1880 Republican National Convention, both an ardent supporter of former-President Ulysses S. Grant (1822-1885) and an equally ardent defender of the so-called “Spoils System” of political patronage. To that end, Conkling – who effectively controlled the powerful New York Republican political machine – became the leader of his party’s “Stalwart” faction and sought to use his influence to secure a third nomination for President Grant, thereby guaranteeing the continuation of the traditional system of political patronage. When, in spite of his machinations at the aforementioned convention, the Republican nomination for President ultimately went to compromise candidate Garfield, Conkling accordingly found himself in something of a bind. Garfield was what at the time was known as a “Half-Breed,” being a member of the Republican Party who favored civil service reform and the creation of a merit-based appointment system. His default position within the party was therefore almost the opposite of that espoused by Senator Conkling. For a time, the New Yorker endeavored to rise above these differences, to the point of actively campaigning for Garfield in both his own home state and in the nominee’s native Ohio. But after Garfield won the resulting election and was inaugurated the following spring, Conkling learned that his attempts at conciliation had not bought him any favors.

    Not only did President Garfield proceed to nominate Senator James G. Blaine (1830-1893), Conkling’s greatest rival within the Republican Party, for the post of Secretary of State, but he also removed Edward Atkins Merritt (1838-1916) from the lucrative position as Collector of the Port of New York and replaced him with Blaine loyalist William H. Robertson (1823-1898). Given that this latter act was undertaken without the consultation of approval of either Conkling or his fellow New York Senator Thomas C. Platt (1833-1910) – in violation of both standing custom and Conkling’s own particular desire to preserve the Spoils System – Conkling took it upon himself to resign his seat in the Senate. Confident in his sway over the New York state legislature, he hoped to demonstrate to President Garfield not only the depth of his indignation but also the continued strength of his Stalwart faction and his control over the same. Accordingly, both Conkling and Platt – whom the former had convinced to follow along – resigned their seats in the Senate and submitted their reelection prospects to the New York state assembly. Unfortunately for these most stalwart of Stalwarts, however – and in spite of Conkling’s presence at the special session in Albany – the two had their respective candidacies rejected, with Warner Miller (1838-1918) and Elbridge Lapham (1814-1890) elected in their place. Granting that the circumstances of this whole affair were highly specific to a particular moment in the history of both the United States and the Republican Party, this would nonetheless seem to constitute a very interesting result. As a consequence of a dispute between the Senators of a given state and a President of the same party over an executive branch appointment, the legislature of the home state of those same two Senators evidently determined to punish the pair for their hubris. The members of the New York legislature might just as well have shrugged their shoulders at the whole thing, chalked it up as an argument at the federal level which had little to do with the prospects of the Empire State, and reaffirmed their support for Conkling and Platt. But in the end, they did not. Instead, despite the fact that Conkling was, in so many ways, their own creation, they seemingly chose to throw in their lot with the Garfield Administration and tossed the petulant former-Senator out on his ear. Only the power dynamic described in the original text of the United States Constitution could have given rise to such a situation or produced such a result.

    To be sure – and as aforementioned – these cases do not combine to make for the clearest possible object lesson. Indeed, one would be well-justified to look at these two incidents as little more than historical anecdotes that bear little upon the topic at hand. So what if a few Senators disobeyed their state assemblies in denying the office of Secretary of State to Roger Taney? And so what if the New York legislature ultimately declined to play along with Roscoe Conkling during the culmination of his feud with the Half-Breeds? And what has any of this got to do with the effect of the 17^th Amendment on the Senate’s power to advise and consent to nominations? The answer, to put it simply, is that it’s got everything to do with it. Prior to the ratification of the 17^th Amendment, these kinds of occurrences were always theoretically in the offing. And this is because the conversation surrounding the nomination of a given individual for a Cabinet post or a federal judgeship took place, not just between the President and the membership of the Senate – as it does now – but between the President, the Senate, and the membership of the state assemblies. Not only were any and all of the state legislatures well within their rights to provide explicit instructions to their respective Senators as to how they ought to vote on an upcoming nomination – with the implicit threat that disobedience would result in replacement – but even in the event that they declined to provide direction, they were perfectly free to punish Senators depending on how they voted.

    Usually, they didn’t bother with either. As noted above, members of the state assemblies tended not to concern themselves overmuch with the makeup of the Cabinet. But they always possessed the power to do so; to shape the use of the advice and consent power by way of disciplining their Senators. And there can be no doubt that, from time to time, they had an interest in doing so. The noted incidents connected to Taney and Conkling are arguably made most memorable by the personalities and the eras from which they sprung. Roger Taney was an arch-Jacksonian who played a key role in bringing about the demise of the 2^nd Bank of the United States, a deed which was bound to arouse a passionate response in certain states. And Roscoe Conkling was a flamboyant, self-possessed, and often overbearing man whose approach to politics was bound to make as many enemies as it did friends. It would accordingly seem fair to say that, as sympathetic as many of his fellow New Yorkers doubtless were to his position on the question of patronage vs. reform, his arrogance and his hubris likely alienated some of those who might otherwise have supported him. But beyond these highly specific moment in which the actions of a certain individual could not help but provoke a response, the state assemblies did always have at least some reason to pay heed to executive nominations.

    In the case of nominations to the district courts and to the circuit courts, for example, the states definitely had an interest in who would be hearing the cases that were appealed from within their respective jurisdictions. And even when the nominee in question was standing for a spot on the Supreme Court, states sometimes still had something to gain based on whether the jurist was confirmed or rejected. Not only did Supreme Court Justices continue to possess substantial authority within the regional circuit courts until the passage of the Evarts Act in 1891, but the majority within a given state assembly might sometimes find itself in a position wherein it vehemently opposed the elevation of a particular judge. In 1893, by way of an example of the latter, Democratic Senator David B. Hill (1843-1910) was able to use his clout as the former governor of New York to escape the punishment of his home state’s legislature for engineering the defeat of the Supreme Court nominations of William B. Hornblower (1851-1914) and Wheeler Hazard Peckham (1833-1905). As these men had been nominated by Hill’s fellow Democrat – and fellow New Yorker – Grover Cleveland (1837-1908), one might assume that Hill would have had more reason that not to do everything in his power to see them smoothly confirmed. In actual fact, however, this did not prove to be the case.

    New York at that time was closely divided between the supporters of President Cleveland – who favored the gold standard and aimed to pursue further patronage reform – and those who aligned themselves behind Senator Hill – who favored the coining of silver as well as gold and was very much a creature of the Tammany Hall political machine. In the Presidential Election of 1892, New York tellingly ended up supporting its “favorite son” Cleveland by less than five percent of the total votes cast, and when the opportunity presented itself for the newly minted administration to fill a seat on the Supreme Court, the New York state assembly was still controlled by Hill’s supporters. The former-Governor-cum-Senator was therefore perfectly positioned to deny his rival his first two choices for the high court, forcing him to instead settle on Louisiana Democrat Edward Douglas White (1845-1921). Now, granting that Hill’s actions may well have been largely for sake of spite, it is nevertheless entirely possible that he was also motivated by principle. Having been a member of the New York legal scene since as far back as the 1860s, he may genuinely have felt from personal experience that the likes of Hornblower and Peckham were not suited to the Supreme Court, that they would have made bad law if elevated, and that the Empire State would have suffered as a result. Whatever his reasoning, however, one thing would seem to be clear: Hill’s presence in the Senate and his actions as a Senator would almost certainly not have been possible under the terms of the 17^th Amendment. Indeed, the whole episode represents an intrusion of state politics into the federal arena.