A discussion of the effect of the 17th 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 17th
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 11th Amendment – removing suits by private individuals
against the states from federal jurisdiction – the 12th Amendment –
altering the manner by which the President and Vice-President are elected – and
the much-talked-about 17th Amendment. Granted, the 17th
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
17th 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 12th 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 17th 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 11th
Amendment.
Approved by Congress in 1794 and ratified
by the requisite number of states in 1795, the 11th 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 11th
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 17th
Amendment, in essence, had been ratified in 1790 instead of 1913? Under such
circumstances, one does honestly wonder whether the 11th 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 10th 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 11th 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 11th
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 11th
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.
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