Guest Essayist: Joe Postell, University of Colorado at Colorado Springs

Article 1, Section 3, Clause 2
2:  Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes.  The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

This seemingly-minor provision of the Constitution is in fact highly important.  Although we rarely pause to consider it today, deciding that one-third of the members of the Senate would be up for re-election every two years is counter-intuitive.  Why not just say that each senator has a six year term and hold elections for the entire Senate every six years?  The House of Representatives does not have staggered terms, in which half of the Members are elected each year.  Why is the Senate different?

The most important characteristic the Senate is supposed to provide is stability, as James Madison makes clear in Federalists 62 and 63.  A huge problem during the 1780s was the mutability, or constant changing, of state laws.  The assumption of the Founders was that elections would tend to oust a relatively large percentage of incumbents in each election cycle, which would produce mutability in the laws.

Today about 90% of incumbents are re-elected in an average election cycle.  But at the time of the Founding, incumbents were not as safe.  Joseph Story wrote in his Commentaries on the Constitution that “mutability in the public councils, arising from a rapid succession of new members” creates “serious mischiefs.  It is a well known fact in the history of the states, that every new election changes nearly or quite one half of its representatives.”  And the more new members in a legislative assembly, the more changes will be made to the laws, producing greater instability.  According to Story, “experience demonstrates, that a continual change, even of good measures, is inconsistent with every rule of prudence and every prospect of success.”

Why is instability in the laws so bad?  Madison gives five reasons in Federalist 62, all of which are highly relevant today.

First, instability is harmful because it undermines foreign policy.  The Senate has an important role in foreign affairs.  If the character of the Senate changes dramatically at one time, due to every member being elected, it could result in a dramatic shift in foreign policy.  This would make us seem less trustworthy to other nations in the world, and make them less agreeable to our interests.

Second, instability in the laws “poisons the blessings of liberty itself.”  This is because it undermines the rule of law, which requires that laws be settled and known to everyone.  But if the laws are constantly changing because the legislature is constantly changing, “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”  Re-electing all senators at one time would undermine the stability in the laws necessary to preserve the rule of law.

Third, instability in the laws gives an “unreasonable advantage…to the sagacious, the enterprising, and the moneyed few, over the industrious” of the people.  This is because changes in the laws will be known and tracked by the wealthy, who will be able to take advantage of the new laws.  “Every new regulation concerning commerce,” Madison explains, “presents a new harvest to those who can watch the change, and can trace its consequences.”  Joseph Story concurred, that “the instability of public councils gives an unreasonable advantage to the sagacious, the cunning, and the monied capitalists.” Thus, instability in the laws, caused by volatility in the Senate, allows insiders to take advantage of all the new regulations.

Fourth, instability dampens entrepreneurship.  Who will be willing to consider new business opportunities if there is a concern that the government’s laws may change tomorrow?  Economies succeed when laws are stable and not constantly changing.  Madison writes, “What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed?”  Stability in the Senate ensures that entrepreneurs can create jobs without being afraid of what government might do in the near future.

But the fifth and “most deplorable effect” of constantly changing laws, Madison writes, “is that diminution of attachment and reverence” for the law which it produces in the people.  When the laws are constantly changing, citizens’ faith in their government and in their representatives is reduced.  This is the worst effect of unstable laws produced by unstable legislatures.

The primary purpose of the Senate is to produce stability in the government and in the laws produced by the government.  This provision of the Constitution promotes stability by ensuring that only one-third of all senators are up for re-election in a given election cycle.

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