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by Jodi L. Miller

The Declaration of Independence states: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” This is a fancy way of saying that the people should power government.

If that’s what our forefathers believed, why did they originally leave the electing of U.S. senators to state legislatures and not the people? Professor Nolan McCarty, the Department of Politics Chair at Princeton University, explains that it was part of the “Great Compromise” to protect the sovereignty of the states. “In the Senate, states were represented as states, not people,” he says.

Connecticut Compromise

Delegates from the states met in Philadelphia in the spring of 1787 to hash out the framework of how the United States would be governed. There were a few proposals considered when setting up the U.S. Legislature. First up was the Virginia Plan, which proposed creating a bicameral legislature (meaning two houses) where both houses would have proportional representation, meaning a state’s population would determine how many representatives it would get. The smaller states were not keen on that plan, believing that their voices (and interests) would be drowned by the larger states. There was also the New Jersey Plan proposed by delegate William Paterson. The New Jersey Plan proposed a legislature with only one house where each state would have equal representation regardless of its population

Eventually, the delegation from Connecticut blended the Virginia and New Jersey plans to come up with what is known as the Connecticut Compromise or the Great Compromise. The compromise was a bicameral legislature where the upper house (the Senate) would have equal representation—two senators each—that were elected by state legislatures for six-year terms. In the lower house (the House of Representatives), representation would be proportional and the people of each state would elect their representatives for two-year terms.

Article I, Section 2 of the U.S. Constitution states: “The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…” This section of the Constitution also contains the controversial three-fifths clause where slaves were counted as three-fifths for population purposes, something fought for by the Southern states in order to boost their states’ representation.

In the end, the representation in the House would shake out like this: New Hampshire, three representatives; Massachusetts, eight; Rhode Island, one; Connecticut, five; New York, six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, 10; North Carolina, five; South Carolina, five; and Georgia, three.
So, which house has more power—the Senate or the House of Representatives? Professor McCarty explains that the reason the Senate is considered the “upper” house and the House of Representatives is known as the “lower” house is pure numbers. In a bicameral legislature, the house with less members is known as the upper house. He says the Senate probably has more prestige because there are less senators but both houses are “pretty equal legislatively.”

Each house has power the other one doesn’t. For example, the Senate solely approves presidential nominees, federal judicial nominees and approves treaties. The House of Representatives, however, holds the purse strings with the power to approve spending and the funding of the government. In addition, when a presidential election results in a tie, the House, per the Constitution, is the tiebreaker. The House has been called to break a presidential election tie twice, electing Thomas Jefferson in 1800 and John Quincy Adams in 1824.

The Constitution also gives the House the power to bring impeachment proceedings against government officials and then serve as the “prosecutor” in the trial. The trial, however, is held in the Senate where the senators would essentially serve as judge and jury. Since 1789, impeachment proceedings have been brought against 17 government officials, including two presidents—Andrew Johnson in 1868 and Bill Clinton in 1998 (both were acquitted in the Senate trial).

Corruption and Deadlock

When the framers were working out the details of the government, James Wilson of Pennsylvania was the only delegate that advocated allowing the people to directly elect senators in the spirit of “consent of the governed.” That idea was rejected. The framers saw the Senate as a way to empower the states while creating a “check” on the potential “populism” of the House. With its longer six-year terms, the Senate would moderate the representatives in the House who were more accountable to their constituents because of their shorter two-year terms.

As the country grew older, the system in the Senate stopped working and by the early 1800s there were calls to amend the Constitution because of issues of deadlock and corruption. According to Michael Waldman in his book The Fight to Vote, “The task of choosing a senator could paralyze a statehouse, crowding out other responsibilities. In the late 1890s alone, legislatures left fourteen Senate seats vacant because they could not resolve party squabbles.” Waldman also wrote, “But the real problem with having state legislatures pick senators was the legislatures themselves: the new industrial robber barons found them easy to buy. According to one 1906 study, in seven states in the previous fifteen years ‘charges of corruption have been put forward with enough presumptive evidence to make them a national scandal.’ State legislators chose U.S. senators who doubled as industry representatives. Montana’s senators represented copper; Pennsylvania’s, steel; New York’s, Wall Street.”

An amendment to elect senators via popular election was first introduced in 1826, but didn’t gain support until the 1890s. The most important argument at the time was the need to “awaken in the senators…a more acute sense of responsibility to the people.” The Reformers, as those who advocated for the 17th  Amendment were called, claimed the Senate had become “an aristocratic body—too far removed from the people, beyond their reach, and with no special interest in their welfare.”

The 17th Amendment to the U.S. Constitution, introduced in 1912 and adopted in 1913, established that the people would directly elect senators from their respective states. The amendment was implemented nationwide with the election of 1914.

Repealing 17th Amendment

There have been calls to repeal the 17th Amendment; with some saying its implementation caused a decline in state’s rights. Others claim it is an undemocratic representation of the people and creates an imbalance when a senator from a small state like Wyoming with a population of 700,000 has as much say as a senator from California, which has a population of 38 million.

Professor McCarty says that a case can be made that the current system is fair if you think of the states as “semi-sovereign units.” The issue of fairness comes in, he says, when you think of it as “senators representing people.” Professor McCarty points out that the one part of the U.S. Constitution that can’t be amended is the part that gives two senators to each state. Article V of the U.S. Constitution states: “No state without its consent can be deprived of its equal suffrage in the Senate.”

Given how hard it is to amend the Constitution and the fact that three-fourths of states (including the small states that the current system benefits) would need to ratify such an amendment, Professor McCarty says the 17th Amendment is not going away any time soon.

Discussion Questions
1. What do you think of the unfair representation argument outlined in the post? Is it fair that all states have two senators no matter how many citizens in the state?
2. The southern states counted enslaved people as three-fifths of a person in order to boost their states representation in the House.  What are your thoughts and feelings about this?
3. Today, the House of Representatives has 435 members and the Senate has 100 members. What are the advantages and/or disadvantages of having more or less people in each house?
4. Do you think it is fair that a “senator from a small state like Wyoming with a population of 700,000 has as much say as a senator from California, which has a population of 38 million?” Why or why not?

Glossary Words:
acquitted: when someone is freed from a criminal charge by a verdict of not guilty.
bicameral: a legislative body that has two branches or chambers.
sovereignty: supreme power or authority.
suffrage: the right to vote in political elections.

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