The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Passed by Congress May 13, 1912. Ratified April 8, 1913.

Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P

Amendment XXI, Section 2:

Section 2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

 

The 21st Amendment is the only amendment to the Constitution which repeals another amendment.  The amendment which it repealed, the 18th, became effective in 1920 and it prohibited

 

“the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States”

 

and its territories.  The passage of the 18th Amendment, and the subsequent enactment by Congress of its enabling legislation, named the Volstead Act, began a period known as the Prohibition.  The Prohibition era lasted a little over 13 years until the states ratified the 21st Amendment in 1933.

The framers of the 18th Amendment, encouraged by the strong temperance movement and the Anti-Saloon League, hoped that a national prohibition on the use of alcoholic beverages would make the nation a better, and more moral place.  President Calvin Coolidge, who served from 1923 to 1929 as our nation’s 30th president, called Prohibition the “greatest social experiment of modern times.”    Others, such as former President William Howard Taft, who had served as president from 1909 to 1913 and who served as Chief Justice of the U.S. Supreme Court during much of the Prohibition period, predicted that

 

“the business of manufacturing alcohol, liquor and beer will go out of the hands of law-abiding citizens and will be transferred to the quasi-criminal classes.”

 

Taft’s prediction ultimately came true, and many entities that previously made alcoholic beverages, as well as new operations, clandestinely (and sometimes openly) violated the law.  The fulfillment of Taft’s prediction, and the other unintended consequences of the Prohibition, was a cruel irony for those who wanted Prohibition to foster a more chaste nation.

Instead of reducing crime and improving the national morality, crime and immorality significantly increased during Prohibition.  “Speakeasies,” bars quietly operating in violation of the law, sprang up in larger cities, and in contrast with the swinging-door saloons they replaced, they welcomed the women that began to frequent the new bars.  It is said that it became popular within the national culture to violate the law, and a whole class of ordinary citizens became criminals.  Private stills produced barrels and barrels of moonshine, some operations were small and served a family or a small group of people; others were larger operations operated by the underworld.  Bootlegging gangsters, such as Al Capone, had their heyday.  Similar to the illicit drug imports today, international criminals worked hard to bring whiskey, rum and other spirits into the country, more often succeeding than failing at their tasks.

Others found clever ways around the Prohibition.  For example, the Napa Valley vineyards of the Beringer family made and sold legal “raisin cakes” from dried grapes, and packaged them with warning labels that said “Caution: will ferment and turn into wine.”  Sales of sacramental wine, used in church services to celebrate communion and which was exempt from the Prohibition laws, skyrocketed, and many assumed that some priests and rabbis of the time were bootlegging on the side.  People with doctor’s prescriptions were able to purchase 1 pint of spirits per week for “medicinal purposes.”  While these exemptions in the law were used for legitimate purposes, organized crime syndicates frequently took advantage of these exemptions and cooked their books to use the legitimate services as front operations to bootlegging.

The Prohibition ushered in at least two additions to popular culture:  NASCAR races and the cocktail.  In the southern United States, some bootleggers retrofitted cars to run loads of whiskey on a fixed fee, per case basis.  These stock cars were built with a heavy duty chassis so that revenue agents would not see an overloaded car, and a souped up engine so the agents could not catch it.  These modified stock cars led to the genesis of the National Association for Stock Car Auto Racing after races by moonshine runners became popular in the south.  Finally, the cocktail – an alcoholic spirit mixed with a sweet or strongly flavored mixer – was invented to cover up the bad taste of homemade gin or whiskey.

Support for Prohibition began to wither with increased public recognition of:  Prohibition’s failures; costly, corrupt and inefficient enforcement efforts; a recognition by some Prohibitionist business leaders that taxing liquor could reduce the impact of rising income taxes; the prospect of new jobs that could be created with a newly legal liquor industry; and finally, the political and economic distractions of the Great Depression.  In 1932, Congress passed a resolution to send the 21st Amendment to the states for ratification, and within a year two-thirds of the states ratified the amendment.  The law began to fracture even before the amendment became effective.  In the spring of 1933, prior to the ratification, newly elected President Franklin D. Roosevelt asked Congress to repeal portions of the Volstead Act to allow the brewing of real beer (“near beer” had been allowed under Prohibition; it tasted like real beer but had an extremely low alcohol content).  After the 21st Amendment became effective, the remainder of the federal Prohibition laws were repealed, and significant taxes were added to the sale of liquor.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 28, 2012

Essay #71

 

Guest Essayist: Ralph A. Rossum, Ph.D., the Salvatori Professor of American Constitutionalism at Claremont McKenna College

Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Seventeenth Amendment

The Seventeenth Amendment replaced the Constitution’s original indirect election of the U.S. Senate by state legislatures with direct election by the people; it was approved by the Congress on May 12, 1912, was ratified by the requisite three-fourths of the state legislatures in less than 11 months, and was declared to be a part of the Constitution on May 31, 1913.  Not only was it ratified quickly, it was ratified by overwhelming numbers: In 52 of the 72 state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all 36 of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from the lower chambers of Vermont and Connecticut.

While state ratification of the Seventeenth Amendment came quickly and easily, approval by the Congress did not. The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From that date until the adoption of the Seventeenth Amendment 86 years later, 187 subsequent resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate reluctantly gave its consent.

By altering how the Senate was elected, however, they also altered the principal mechanism employed by the framers to protect federalism.  The framers understood that the mode of electing (and especially re-electing) senators by state legislatures made it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states. This understanding was perfectly captured by Alexander Hamilton during the New York Ratifying Convention on June 24, 1788, when he explicitly connected the mode of electing the Senate with the protection of the interests of the states as states. “When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.”

Hamilton’s arguments to the contrary, notwithstanding, the states quickly and overwhelming ratified an amendment that removed the principal structural means for protecting the original federal design and the interests of the states as states. Four factors explain why they did so.

The first was legislative deadlock over the election of senators brought about when one political party controlled the state assembly or house and another controlled the state senate. Prior to the ratification of the Seventeenth Amendment, there 71 such legislative deadlocks, resulting in 17 senate seats going unfilled for an entire legislative session or more. These protracted deadlocks often led to the election of “the darkest of the dark horse” candidates, occasionally deprived the affected states of representation in the Senate, always consumed a great deal of state legislative time that was therefore not spent on other important state matters, and powerfully served to rally the proponents of direct election.

A second factor was the political scandal that resulted when deadlocks were occasionally loosened by the lubricant of bribe money.  While corruption was proved to be present in only seven cases of the 1,180 senators elected from 1789 to 1909, these instances were much publicized and proved crucial in undermining support for the original mode of electing senators.

A third factor, closely related to the second, was the growing strength of the Populist movement and its deep-seated suspicion of wealth and influence. It presented the Senate as “an unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but low in integrity.”

And, when Populism waned, Progressivism waxed in its place, providing a fourth (and ultimately decisive) factor: The Progressives believed that the cure for all the ills of democracy was more democracy. Their goal was, as Woodrow Wilson proclaimed in his 1912 campaign book The New Freedom, for government to be not only “of, by, and for” the people, but “through the people.”

Ralph A. Rossum, Ph.D. is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of a number of books  including Federalism, the Supreme Court, and the Seventeenth Amendment, Antonin Scalia’s Jurisprudence: Text and Tradition, and American Constitutional Law (8th edition).

May 15, 2012 

Essay #62 

Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

 

Many Americans wonder why it is that the federal government continues to expand its power at the expense of the states and local governments.  As the Supreme Court observed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),“the adoption of the Seventeenth Amendment in 1913 … alter[ed] the influence of the States in the federal political process.” Ironically, it was state legislatures that insisted on adopting the Seventeenth Amendment even though it virtually guaranteed their loss of power. The Seventeenth Amendment inflicted a near death-blow to federalism.

The first sentence of the Seventeenth amendment substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislatures.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the Seventeenth Amendment, with little or no realization that they were diminishing the power of their own states and undermining federalism generally.  Many legislators apparently thought they had more important matters to attend to than devoting time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has inevitably consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is a Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

 

Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

Amendment XVII

The Seventeenth Amendment, adopted April 8, 1913, provides as follows:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The first sentence substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislature.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the 17th Amendment, with little or no realization that the Seventeenth amendment would diminish state power and undermine federalism generally.  Many legislators apparently thought they had more important matters to attend to than to devote time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.