State laws and the independent judiciary: an analysis of the effects of the Seventeenth Amendment on the number of Supreme Court cases holding state laws unconstitutional.

• Author: Kochan, Donald J.

INTRODUCTION

"How little we know what any amendment would produce!" exclaimed Senator Elihu Root on the floor of Congress in 1911. (1) Root was speaking during the debates leading to the direct election of United States Senators through ratification of the Seventeenth Amendment to the U.S. Constitution in 1913. (2) No longer would state legislatures elect the Senators for each state, (3) but instead, the Senators would be directly elected by the voters. In his preceding statement, Senator Root warned that "no one can foresee the far-reaching effect of changing the language of the Constitution in any manner which affects the relations of the States to the General Government." (4)

Another Senator thought he knew what the Seventeenth Amendment would bring for the United States when it was first debated: "[I]t was prophesied by Senator Hoar, who stood like Horatius at the bridge fighting for the old system, that popular election [of Senators] would in the end overthrow 'the whole scheme of the national Constitution as designed by the framers.'" (5) The original constitutional design of "[a]llowing state legislatures to select senators provided the states with an institutional weapon to defend their sphere of action." (6)

Debate over the Seventeenth Amendment--now ninety years old--and its effects on state power has hardly disappeared. In recent years, the Seventeenth Amendment has been the subject of legal scholarship, (7) congressional hearings and debate, (8) Supreme Court opinions, (9) popular press articles and commentary, (10) state legislative efforts aimed at repeal--one in Montana rejected as late as February 2003 (11)--and activist repeal movements. (12)

To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying positive political theory to examine the potential effects of the Seventeenth Amendment while remaining generally agnostic concerning whether the hypothesized decrease in state power represents a sound governing structure.

Two primary phenomena related to the Seventeenth Amendment experience and its effect on state legislatures are explored in this Article. First, this Article generally looks at the federal/state relationship as it was altered by the Seventeenth Amendment, including a brief survey of the literature that concludes that direct election divorced Senators from their allegiance with state legislatures and, indeed, put them in competition with state legislatures for currying interest group favor. As a result of an elimination of the element of a vertical separation of powers between the states and the federal government, state legislatures lost power. (13)

Second, this Article proceeds by examining the institutional weapons available to state legislatures in the pre-Seventeenth Amendment world resulting from state legislatures' influence in Congress. It posits that these weapons could be used to influence outcomes at the Supreme Court and other federal courts if those courts threatened the institutional interests of state legislatures, mainly the durability of state legislative acts. This Article hypothesizes that the Seventeenth Amendment left federal courts free to hold state laws unconstitutional without significant fear that the institutional interests of the federal court system and the interests of individual judges would face retaliation for such holdings.

To accomplish this examination, Part I of this Article briefly explains the alteration in constitutional design accomplished by the Seventeenth Amendment without unduly repeating the literature. Part II presents two theories of institutional behavior affecting the outcomes of Supreme Court decisions. The first theory is based on congressional self interest as an explanation for the presence of an independent judiciary. This theory assumes that Congress will act in ways that preserve the independence of the judiciary, tending to cause judicial interpretations that uphold original legislative bargains and consequently result in a low occurrence of decisions finding laws unconstitutional. The second theory discussed in this part is based on the assumption that the federal courts act in a self-interested manner and that both Congress and the courts are responsive institutions. Under this theory, the Supreme Court generally refrains from holding laws unconstitutional in order to avoid retaliation or obtain favor from Congress. The final section in this Part synthesizes the theories to explain that Court and congressional self interest should both lead to a low occurrence of cases finding laws unconstitutional when those laws affect an interest of Congress.

Part III presents empirical material that supports the theory that the federal courts have treated the constitutionality of state laws differently before and after the Seventeenth Amendment. Although evidence of causation must be explored further, there is substantial empirical evidence that suggests that the Seventeenth Amendment may have altered the relationship between state legislatures and federal courts.

Because the Seventeenth Amendment removed interests of state legislatures from that set of interests generally of concern to Congress, the conditions for a low occurrence of rulings of unconstitutionality fail to hold in relation to most state legislative acts. These conditions held prior to the Seventeenth Amendment for both acts of Congress and state legislatures but held only for acts of Congress in the post-ratification period; thus, it can be hypothesized that these theories of congressional and judicial behavior, if accurate, should predict a significant increase in the number of state laws ruled unconstitutional as a result of the Seventeenth Amendment.

1. THE ALTERATION OF THE CONGRESSIONAL LANDSCAPE THROUGH THE SEVENTEENTH AMENDMENT

   The Seventeenth Amendment provides for the direct election of United States Senators by the people of each state. (14) Prior to ratification of the Seventeenth Amendment in 1913, state legislatures were given the right to elect (or otherwise select the method of election for) United States Senators (15)--the voters in each state played only an indirect role through their state legislative representatives. As a result, Senators were direct agents of the state legislatures, not of the citizens of a state. (16)

   The original constitutional design was intended to protect the states in the national legislative scheme. (17) As George Mason argued during the constitutional debates when defending the motion to give state legislatures the right to elect Senators, "'the state legislatures also ought to have some means of defending themselves agst. [sic] encroachments of the Natl. Govt.'" (18) In addition, "Wilson argued that the legislative election of senators would afford adequate security for the states." (19) Rakove contends that "[i]t was probably this consideration that led all ten states ... to approve" the provision for state legislature election of Senators. (20)

   Many have argued that the Seventeenth Amendment has affected the federal-state power equation by, in varying ways, tipping the scales of power toward the federal government. (21) Although there will be a brief description of the conclusions of this literature, for purposes of this Article's contribution, there is no reason to completely rehash the analyses in this scholarship.

   One of the primary arguments in that scholarship involves the elimination of a direct voice for state legislatures in Congress, decreasing the protection of state legislative interests at the federal level--whether it be from federal acts that encroach upon state sovereignty as protected under the Tenth and Eleventh Amendments, or otherwise. The scholarship, however, has not addressed the effect of the Seventeenth Amendment upon the influence of state legislatures in the federal judiciary.

   Prior to the ratification of the Seventeenth Amendment, state legislatures had direct access to the powers of the Senate as the principals in the agency relationship. State legislatures were the primary constituency of their respective Senators, and Senators were in many ways beholden to their state legislatures. "As long as states were represented in the Senate, that body was not likely to adopt legislation which was opposed by even a significant minority of states." (22)

   A Senator's tie to a state legislature went beyond the initial electoral relationship--it was further tied by practices manifesting from the electoral relationship. For example, actions of Senators were sometimes controlled by state legislatures through the process of "instruction." (23) Bresler explains that "[t]he most notable instructions in America were from state legislatures to [United States] Senators.... As the 'constituency' of U.S. Senators, the state legislatures regularly instructed them.... Legislatures instructed [United States] Senators more during the second quarter of the [nineteenth] century than at any other time in American history." (24)

   The failure to follow instructions from state legislatures was a serious offense, leading to the resignation of several non-complying Senators, precisely because those legislatures felt that senators should be bound by their instructions. (25) Zywicki explains that this agency relationship was fundamental to the protection of state legislative interests in the national forum:

   The Senate was seen as the forum for the states to speak as sovereign entities. State governments ensured that senators represented their interests through the historic practice of "instructing" senators. Under this practice, state...