Selection of Senators by State Legislatures

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Article I, Section 3, Clause 1:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

By providing for Senators to be selected by popular vote, the Seventeenth Amendment superseded the Framers’ decision—set forth in Article I, Section 3, Clause 1—that state legislatures choose Senators.1 The Seventeenth Amendment thereby harmonized selection of the Senate with that of the House, the Members of which the Framers provided to be elected by popular vote.2

During the Constitutional Convention, the Framers considered several methods for selecting Senators.3 While James Wilson, James Madison, and George Mason supported direct election of Senators through popular votes,4 other proposals provided for the House of Representatives to elect Senators directly or from a pool of nominees chosen by state legislatures.5 Ultimately, the Framers agreed that state legislatures would select Senators.6

The Framers’ decision to distinguish selection of the Senate from selection of the House of Representatives was consistent with established practices. Following the example of the British House of Commons, colonial charters and state constitutions generally provided for one branch of their legislatures to be selected by popular vote.7 Popular votes were not the only method of selecting representatives of the people, however. For instance, under the Articles of Confederation, state legislatures selected delegates to Congress, while the Maryland House of Delegates appointed the Maryland Senate.8 Thus, popular votes influenced selection of—rather than selected—Congress under the Articles of Confederation and the Maryland Senate. The Framers, moreover, appear to have viewed both direct elections of Members of the House through popular votes and selections of Senators by state legislatures, members of which had been directly elected by popular vote, as consistent with republican government. Although James Madison advocated for direct election of Senators at the Constitutional Convention, he observed in the Federalist No. 39 that “[i]t is SUFFICIENT for such a [republican] government that the persons administering it be appointed, either directly or indirectly by the people . . . .” 9

Although the Constitution has provided for the Senate to be popularly elected since 1913, at the time of the Nation’s inception, selection of the Senate by state legislatures provided certain benefits both to states and the new U.S. Government. By selecting Senators, state legislatures could directly impact Senate decisions, which, in turn, strengthened ties and improved communication with Congress. Because Senators owed their appointments to state legislatures, they had incentives to be responsive to the needs of their states. Consequently, state legislatures had greater ability to advance their interests in Congress.10 Describing this benefit, James Madison wrote: “It is recommended by the double advantage of favouring a select appointment, and of giving to the state governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.” 11 Finally, by requiring no specific selection process, Article I, Section 3, Clause 1 allowed state legislatures to tailor the process of selecting Senators to the state’s unique circumstances.

1: U.S. Const. amend. XVII.
2: Compare U.S. Const. amend. XVII with U.S. Const. art. I, § 2, cl. 4.
3: Max Farrand, The Framing of the Constitution 76 (1913).
4: Id.
5: Id. See also Joseph Story, Commentaries on the Constitution of the United States § 701 (1833).
6: Joseph Story, Commentaries on the Constitution of the United States § 701 (1833).
7: Popular votes did not mean universal suffrage. For instance, as the author of the Federalist No. 57 notes, participation in county elections for the British House of Commons was limited to “persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money.” The Federalist No. 57 (Alexander Hamilton or James Madison). See also The Federalist No. 63 (Alexander Hamilton or James Madison) ( “But if anything could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and in very great proportion, by a very small proportion of the people.” ).
8: The Federalist No. 39 (James Madison) ( “The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people.” ).
9: Id.
10: See Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177, 214 (2008) (noting that Senators who refused to follow their state legislature’s directions were expected to resign).
11: Joseph Story, Commentaries on the Constitution of the United States § 702 (1833); The Federalist Nos. 62 (Alexander Hamilton) & 27 (Alexander Hamilton).