Indirect Effects of Direct Election: A Structural Examination of the Seventh Amendment
Federalism is hot. Courts are trying to preserve it.' Politicians are trying to reinvent it. And academics are trying just to understand it. Inspired by this renewed interest in the relationship between federal and state governments, I decided to undertake a fresh examination of the Seventeenth Amendment which requires direct election-by the People of each State-of members of the United States Senate. After all, although direct election has not received extensive academic attention, the amendment's removal of state legislatures from the federal electoral process would seem to have significantly reworked the Constitution's federal framework; state legislative election of Senators was seen in 1787 as a (if not the) central device for the protection of States' rights and interests. And in fairly short order I identified some currently important federalism implications of the amendment. For example, much of the current flack over "unfunded" federal mandates and federal "conscription" of state instrumentalities is, I think, a result of state legislatures having been cut out of the electoral loop.
But as my structural inquiry into direct election became more systematic, I came to see that some of the Seventeenth Amendment's most important and heretofore unobserved implications concern not federalism, but rather separation of powers-the relationships and processes of the three co-equal federal branches. Although it does so indirectly, the Seventeenth Amendment alters and casts important light on the dynamic between organs within the federal government. As James Madison keenly suggested in Federalist No. 51,11 the two great themes of the Constitution's design-federalism and separation of powers-are intricately and interestingly related., And when we enact structural changes in one of these two areas, we simply cannot ignore the spillover effects in the other.
In this Article, I identify and begin to explore three ways in which direct election bears on important separation of powers questions. First, I argue that direct election systematically reduces rotation between the Senate and Executive Branch offices. This is so because involvement of the People of each State makes more difficult deals by which Senators leave the Senate voluntarily to perform other public service on the implicit understanding that they will be reelected to the Senate when openings present themselves. Put another way, because the Seventeenth Amendment introduces new "transaction costs," certain kinds of rotation arrangements have be- come harder to fashion.
Vikram D. Amar,
Indirect Effects of Direct Election: A Structural Examination of the Seventh Amendment,
49 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol49/iss6/1