The Original Design: Why the Framers Gave Senate Elections to the State Legislatures

This course is about one sentence in the Constitution and what happened when the country changed it. The sentence is in Article I, Section 3, and for 124 years it read: "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." Every deadlock, bribery scandal, Progressive campaign and modern federalism argument in the lessons that follow comes back to the four words "chosen by the Legislature." So the place to begin is Philadelphia in the summer of 1787, where those words were chosen, debated, nearly abandoned, and written down. The record is unusually good. Madison kept notes almost every day, the official Journal recorded the votes, and Max Farrand collected both, with other delegates' notes, in The Records of the Federal Convention of 1787. The Avalon Project at Yale Law School has the text online by date. This lesson quotes from it directly and tells you how to read it yourself.

If you want the wider story of the Convention first, the liberty site's lesson on the Constitutional Convention of 1787 and the Constitution course's origins lesson cover the summer as a whole. This lesson narrows to the Senate.

The text as written

Here is Article I, Section 3, clauses 1 through 3, as ratified in 1788 and as it stood until 1913, from the National Archives transcription:

"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.

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.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."

Three other clauses matter for this course. Article I, Section 4 gives each state legislature the power to prescribe "The Times, Places and Manner of holding Elections for Senators and Representatives," and lets Congress "at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." That exception is why Congress could, in 1866, dictate how legislatures voted for senators but not where. Article I, Section 5 says "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members," which made the Senate the final court for every disputed legislative election from Albert Gallatin's in 1794 to William Lorimer's in 1912 (lesson 02 and lesson 03). And Article V, after setting out the amendment process, adds "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Equal suffrage was entrenched. The mode of election was not, which is the only reason the Seventeenth Amendment was possible at all.

Rule in the 1787 text	Where	What it did	Changed by the Seventeenth Amendment?
Two senators per state	Art. I, Sec. 3, cl. 1; Art. V	Equal representation of states regardless of population; protected against amendment without the state's consent	No
Chosen by the state legislature	Art. I, Sec. 3, cl. 1	Indirect election through the state's elected lawmakers	Yes: "elected by the people thereof"
Six-year term	Art. I, Sec. 3, cl. 1	Longest elective term in the federal government	No
One vote per senator	Art. I, Sec. 3, cl. 1	Senators vote as individuals, not as a state delegation (unlike the Confederation Congress)	No
Three classes, one third every two years	Art. I, Sec. 3, cl. 2	Staggered terms; the Senate never turns over at once; a state's two seats never come up in the same year	No
Recess appointments by the state executive	Art. I, Sec. 3, cl. 2	Governor fills a vacancy only until the legislature next meets and elects	Yes: the governor may appoint, if the legislature so provides, until the people fill the vacancy by election
Age 30, nine years a citizen, inhabitant of the state	Art. I, Sec. 3, cl. 3	Qualifications; the Senate judges them under Art. I, Sec. 5	No
Times, places and manner set by the legislature; Congress may alter, except places of choosing senators	Art. I, Sec. 4	Basis of the 1866 federal statute on legislative elections	Not directly; the "most numerous branch" qualification clause of the amendment reaches into state election law

How the Convention got there: May 29 to June 25

The Virginia Plan did not propose legislative election

On May 29, 1787, Edmund Randolph of Virginia laid fifteen resolutions before the Convention. The fourth said "the members of the first branch of the National Legislature ought to be elected by the people of the several States." The fifth said "the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures" (Madison's notes, May 29). So in Madison's own design the state legislatures nominated and the House chose. The state governments would have had a voice in the Senate, but a filtered one.

That plan lasted two days. On May 31 the Committee of the Whole took it up. Richard Dobbs Spaight of North Carolina moved that the second branch "ought to be chosen by the State Legislatures," then withdrew the motion after Rufus King of Massachusetts objected that it was impracticable unless the Senate were enormous or proportional representation were abandoned: "there must be 80 or 100 members to entitle Delaware to the choice of one of them." James Wilson of Pennsylvania opposed both nomination by the legislatures and election by the House, because the second branch "ought to be independent of both," and he wanted election by the people in large districts, pointing to New York's Senate districts as a model. Madison argued that combining districts would let the larger member of a pair choose from within itself. Roger Sherman of Connecticut wanted each state legislature to elect one member. Charles Pinckney moved to strike the nominating role of the legislatures, and that lost 9 states to none with Delaware divided. Then the whole clause, election by the first branch out of state nominees, was put to a vote. Massachusetts, Virginia and South Carolina voted aye. Connecticut, New York, New Jersey, Pennsylvania, Delaware, North Carolina and Georgia voted no. Madison recorded that the defeat "left a chasm" in that part of the plan (Madison's notes, May 31). The same day the Committee agreed, 6 to 2 with two states divided, that the first branch would be elected by the people.

Hold onto that sequence. The Convention decided to elect the House by the people and could not decide what to do about the Senate, all on the same afternoon. Popular election of senators was on the table, from Wilson, from the first week.

June 7: Dickinson's motion

A week later, on June 7, John Dickinson of Delaware filled the chasm. He moved "that the members of the 2d. branch ought to be chosen by the individual Legislatures." Sherman seconded. Dickinson wanted the sense of the states "better collected through their Governments," wanted the Senate to consist of "the most distinguished characters," and said he "hoped there would be 80 and twice 80" of them. Wilson moved to postpone so he could offer election by the people. He warned that if the two branches rested on different foundations "dissensions will naturally arise between them." Only Pennsylvania voted to postpone.

Madison's objection was sharper, and it matters because he later became the amendment's most-quoted defender. Adopting Dickinson's motion, he said, would force a choice between abandoning proportional representation, which "is evidently unjust," or enlarging the Senate past the point of usefulness: "Enlarge their number and you communicate to them the vices which they are meant to correct." He added that the state legislatures "run into schemes of paper money &c." whenever they pleased, and so could not be counted on to check the national legislature. In other words, Madison thought the state legislatures were part of the problem the Senate was supposed to solve.

The other side answered on federal grounds. Elbridge Gerry of Massachusetts listed four possible modes and dismissed appointment by the national executive as "a stride towards monarchy that few will think of"; he thought the state legislatures "have more sense of character" than a popular electorate and would best protect the commercial interest. George Mason of Virginia said "It is impossible for one power to pervade the extreme parts of the U.S." and that "The State Legislatures also ought to have some means of defending themselves agst. encroachments of the Natl. Govt." Sherman argued the states would become interested in supporting the national government if they chose its upper house. Pinckney wanted the second branch "permanent & independent" and thought state appointment would avoid "the rivalships & discontents incident to the election by districts."

Then the vote. Madison's notes record: "Mass. ay. Ct. ay. N. Y. ay. Pa. ay Del. ay. Md. ay. Va. ay N. C. ay. S. C. ay. Geo. ay." Ten states aye, none no. Pennsylvania, whose delegate had just argued the other way, voted with the rest. New Jersey does not appear in the tally. The Senate Historical Office's page on election by state legislatures summarizes the same day, and Joseph Story in 1833 described the method as having "finally prevailed by an unanimous vote" (Commentaries, section 701).

June 18 and June 25: the alternatives that lost

Legislative election was tested twice more. On June 18 Alexander Hamilton presented his own sketch of a government. Its Senate was to be "elected to serve during good behaviour," with "their election to be made by electors chosen for that purpose by the people," and "the States to be divided into election districts" (Madison's notes, June 18). Life tenure and popular electors. Nobody took it up.

On June 25 the Convention, now out of committee, reached the second branch again. Pinckney gave a long speech arguing that a system "must be suited to the habits & genius of the people it is to govern" and that "the General Govt. can not effectually exist without reserving to the States the possession of their local rights." Wilson tried once more. The general government, he said, "is not an assemblage of States, but of individuals for certain political purposes," and he proposed that "the election can be made by electors chosen by the people for that purpose." His motion was not seconded. Oliver Ellsworth of Connecticut answered with the sentence that best states the federal case: "The only chance of supporting a Genl. Govt. lies in engrafting it on that of the individual States." William Samuel Johnson said that under Wilson's plan the state governments would be "at the mercy of the Genl. Govt." Mason repeated that the states needed a power of self-defense and the only way to give it was to let the legislatures appoint the second branch. The vote on "chosen by the individual Legislatures" was 9 to 2: Massachusetts, Connecticut, New York, New Jersey, Delaware, Maryland, North Carolina, South Carolina and Georgia aye; Pennsylvania and Virginia no (Madison's notes, June 25).

Two states, the two with the most committed nationalists, voted no at the end. Everyone else, including the large states of Massachusetts and New York, voted for the state legislatures. The small states did not win this one by themselves.

Date (1787)	Question	Result	Source
May 29	Virginia Plan, resolution 5: second branch elected by the first from state-nominated persons	Introduced	Madison, May 29
May 31	Pinckney's motion to strike nomination by the state legislatures	Lost, 9 no, Delaware divided	Madison, May 31
May 31	Election of the second branch by the first branch out of state nominees	Rejected, 3 ay (MA, VA, SC) to 7 no	same
May 31	First branch elected by the people	Agreed, 6 ay, 2 no (NJ, SC), 2 divided (CT, DE)	same
June 7	Wilson's motion to postpone for popular election	Lost, Pennsylvania alone ay	Madison, June 7
June 7	Dickinson's motion: second branch chosen by the individual legislatures	Agreed, 10 ay, 0 no (New Jersey not recorded)	same
June 18	Hamilton's plan: senators chosen by popular electors, serving during good behavior	Presented, not voted on	Madison, June 18
June 25	Wilson's motion for election by electors chosen by the people	Not seconded	Madison, June 25
June 25	"chosen by the individual Legislatures"	Agreed, 9 ay to 2 no (PA, VA)	same
June 25	Strike "seven years" as the term	Agreed, 7 to 3, Maryland divided; six years and five years each then failed 5 to 5	same
June 26	Nine-year term with triennial rotation	Lost, 3 to 8	Madison, June 26
June 26	Gorham's motion: six years, one third out every second year	Agreed, 7 ay (MA, CT, PA, DE, MD, VA, NC) to 4 no (NY, NJ, SC, GA)	same
June 26	Ellsworth's motion: senators paid by their states	Lost, 5 to 6	same
July 16	Grand Committee report: equal vote for each state in the second branch	Agreed, 5 ay (CT, NJ, DE, MD, NC), 4 no (PA, VA, SC, GA), MA divided	Madison, July 16
August 9	Strike executive recess appointments to Senate vacancies	Lost, PA alone ay, 8 no, MD divided; Madison's substitute wording then agreed unanimously	Madison, Aug. 9
August 9	Citizenship for senators: 14 years, 13, 10, then 9	14, 13 and 10 lost (4 ay each); 9 years agreed, 6 ay, 4 no, NC divided	same

The Connecticut Compromise and why it travels with legislative election

Equal suffrage and legislative election are different rules, decided on different days by different margins, and it is worth keeping them apart. Legislative election passed easily. Equal votes for each state nearly broke the Convention. From late June into mid-July the large states fought for proportional representation in both houses and the small states threatened to walk out. A Grand Committee of one delegate from each state reported a package: the House apportioned by population, with money bills originating there, and "in the 2d. branch of the Legislature of the U. S. each State shall have an equal vote." On July 16 the whole report carried by 5 states to 4 with one divided: Connecticut, New Jersey, Delaware, Maryland and North Carolina aye (Spaight of North Carolina dissenting within his delegation); Pennsylvania, Virginia, South Carolina and Georgia no; Massachusetts divided, Gerry and Strong aye, King and Gorham no (Madison's notes, July 16). Had Massachusetts gone the other way, or had one of the five flipped, the Senate as we know it would not exist.

Why do the two rules get read together? Because the Federalist read them together. Equal votes gave the small states protection; legislative election gave the state governments as institutions a hand in the national one. Both treated the states as something more than administrative districts. Madison, who had opposed both, made the connection explicit in Federalist 62: the equal vote "is at once a constitutional recognition of the portion of sovereignty remaining in the individual States," and the equality of representation was "evidently the result of compromise between the opposite pretensions of the large and the small States." And in Federalist 39 he set the two houses against each other: "The House of Representatives will derive its powers from the people of America," while "The Senate, on the other hand, will derive its powers from the States, as political and coequal societies." He concluded: "So far the government is FEDERAL, not NATIONAL." Bryce, writing a century later, put it the same way: the Senate "represents the several States of the Union as separate commonwealths, and is thus an essential part of the Federal scheme" (The American Commonwealth, 1893 ed., vol. 1, ch. X).

The Seventeenth Amendment changed one of the two rules and left the other alone. Whether the one that remained can carry the federal weight by itself is the argument of lesson 08 and lesson 09.

The related rules: term, rotation, pay, qualifications, vacancies

Six years, and why not seven, nine or life

The Committee of the Whole had set the Senate term at seven years. On June 25 the Convention struck "seven" 7 to 3 with Maryland divided, then split 5 to 5 on six years and 5 to 5 on five, with Maryland divided each time, and adjourned without a term. Gorham had suggested four years, Williamson six, Read "during good behaviour," and Pinckney four on the ground that a longer term would tie senators to the seat of government. The next day, June 26, Gorham opened by moving six years with one third going out every second year, and Wilson seconded. George Read of Delaware then moved nine years with one third retiring every three years. The nine-year question was put first and lost 3 to 8. Gorham's six years then carried 7 to 4: Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia and North Carolina aye; New York, New Jersey, South Carolina and Georgia no (Madison's notes, June 26).

The speeches that day are the clearest statement of what the framers wanted the Senate to be. Madison called for a "firm, wise and impartial body" that would bring "the preponderance of justice by throwing its weight into that scale." Sherman answered that "Govt. is instituted for those who live under it" and that "Frequent elections are necessary to preserve the good behavior of rulers"; he thought four or six years enough. Hamilton said the Senate was formed "particularly the guardians of the poorer orders of Citizens," and agreed with Madison that the Convention was deciding "the fate of Republican Government." The rotation by classes, which puts one third of the Senate before the state legislatures every two years, was Gorham's addition and is why Rufus King could tell the Massachusetts convention in 1788 that the average remaining term at any moment was about four years.

Pay: the vote that tells you what kind of link they wanted

Also on June 26, after the term was fixed, Ellsworth moved that senators be paid by their own states rather than from the national treasury. This is the vote to remember when someone says the framers meant senators to be agents of their legislatures. Jonathan Dayton of New Jersey called state payment "fatal to their independence." Madison said it would make senators hold office "during pleasure" of the state legislatures and turn them into "the mere Agents & Advocates of State interests." Ellsworth's motion failed, 5 to 6 (Connecticut, New York, New Jersey, South Carolina and Georgia aye). The record of the follow-up vote on paying "out of the public treasury" is inconsistent between Madison and the Journal, but the final Constitution, in Article I, Section 6, pays senators from the Treasury of the United States. The Convention wanted the legislatures to choose the senators. It did not want the legislatures to own them.

Qualifications

The Committee of Detail's draft, taken up August 9, required senators to have been citizens four years. Gouverneur Morris moved fourteen, citing the danger of admitting strangers to public councils, and Pinckney seconded. Ellsworth, Madison, Franklin and Wilson opposed a long bar; Mason and Butler supported one; Randolph would go no higher than seven. Fourteen years lost 4 to 7, thirteen lost, ten lost, and Randolph's compromise of nine years carried 6 to 4 with North Carolina divided, conditioned on the House requirement being reduced from seven years. The thirty-year age minimum and the inhabitancy rule came through without a fight (Madison's notes, Aug. 9). Madison's explanation in Federalist 62: the Senate's share in foreign affairs meant its members should be "thoroughly weaned from the prepossessions and habits incident to foreign birth and education," and its work called for "greater extent of information and stability of character" than the House's. The nine-year rule was the ground of the Senate's first contested election, when it voided Albert Gallatin's seat in 1794 (lesson 02).

The original vacancy clause

The same day, August 9, the Convention debated the sentence that would cause more litigation after 1913 than any other part of Section 3. The Committee of Detail's draft let a state's executive fill a Senate vacancy during the legislature's recess. Wilson objected that legislatures met often enough, that the executive should not elect into the legislative department, and that "It removes the appointment too far from the people." Randolph defended executive appointment as a guard against "inconvenient chasms in the Senate," since some legislatures met only once a year. The motion to strike the executive's power lost, Pennsylvania alone aye, eight states no, Maryland divided. Williamson's motion to add "unless other provision shall be made by the Legislature" lost 6 to 4. Madison then offered the wording that survived: vacancies by refusal or resignation to be filled by the state legislature, or, until it met, by the executive. That was agreed unanimously.

Read the final text again: the executive "may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." The appointment power was a stopgap for the months a legislature was out of session. It gave no governor power to appoint when the legislature was sitting and had simply failed to elect, and the Senate enforced that reading in 1893, 1897 and 1899 by refusing to seat governors' appointees from deadlocked states (lesson 03). The Seventeenth Amendment rewrote the clause and lesson 06 takes up what the courts have made of the new version.

One vote per senator

Under the Articles of Confederation each state delegation cast one vote. On August 9 Randolph asked to postpone the words "each member shall have one vote" so they could be reconsidered with the money-bills clause; the postponement lost 2 to 8 with New Hampshire divided, and the words were agreed to. Bryce later noted the consequence: "the two senators from a State may belong to opposite parties," which happened constantly in closely divided states and which a true delegation vote would have made impossible. A legislature chose the senator; it did not cast his votes.

What the Federalist said

Publius defended legislative election in five places, and the defenses are not all the same. Hamilton, in Federalist 27, listed among the reasons the national government would be well run that the state legislatures, select bodies of men, "are to appoint the members of the national Senate." Madison in Federalist 45, arguing that the states had more to fear from their own strength than the Union's, wrote: "The Senate will be elected absolutely and exclusively by the State legislatures," and in the sentence before it, "Without the intervention of the State legislatures, the President of the United States cannot be elected at all." His point was that each branch of the federal government owed its existence to the states' favor, so the federal government would more likely be too deferential to the states than too overbearing.

Federalist 62 is the essay on the Senate's structure. On the mode of appointment Madison is brief, almost dismissive: it is "probably the most congenial with the public opinion," and has "the double advantage of favoring 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." That is the whole defense. He spends far more words on equal representation and on the need for a body that would "hold its authority by a tenure of considerable duration" and be "less numerous" than the House.

Federalist 63, generally attributed to Madison (the Avalon page headers it "Hamilton or Madison"), answers the charge that a Senate not immediately chosen by the people would become an aristocracy. A Senate, Madison wrote, is "a defense to the people against their own temporary errors and delusions." The Maryland Senate, "elected, as the federal Senate will be, indirectly by the people," had not turned tyrannical. And a federal Senate bent on usurpation would first have to corrupt the state legislatures, because "the periodical change of members would otherwise regenerate the whole body." Here the state legislatures are a safety valve against the Senate rather than a check the Senate exercises for them.

Hamilton's Federalist 59, on Congress's power to regulate elections, admits the one real danger of the scheme: "It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government." He thought the risk tolerable because of the six-year classes, two senators per state, and a quorum rule, so that "a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body." Delaware's legislature tested that reassurance in 1895, 1899 and 1901 (lesson 03). The Senate survived, as Hamilton predicted, and Delaware went two years with no senators at all.

Writer, essay	What a legislatively chosen Senate would do	Exact words
Madison, Federalist 39	Make the government partly federal by drawing the Senate's power from the states as states	"derive its powers from the States, as political and coequal societies"
Madison, Federalist 45	Keep the federal government dependent on, and deferential to, the state governments	"elected absolutely and exclusively by the State legislatures"
Hamilton, Federalist 59	Carry a tolerable risk that states could starve the Senate of members	"by forbearing the appointment of senators, may destroy the national government"
Madison, Federalist 62	Produce a select membership and connect the two levels of government	"a convenient link between the two systems"
Madison, Federalist 63	Stand against popular passions; be regenerated by the states before it could usurp	"a defense to the people against their own temporary errors and delusions"
Federal Farmer XI (Jan. 10, 1788)	Represent the states as equal sovereigns, but harden its members over six years	"Men six years in office absolutely contract callous habits"
Brutus XVI (Apr. 10, 1788)	Make senators independent of their states unless recall is restored	"Men long in office are very apt to feel themselves independent"
Luther Martin, Genuine Information (1788)	Free senators from state control for six years at a time	"their States cannot recall them, nor exercise any controul over them"
Fisher Ames, Massachusetts convention (Jan. 19, 1788)	Represent state sovereignty and guard against consolidation	"Too much provision cannot be made against a consolidation"

What the Anti-Federalists said

Here is the surprise for a modern reader: the opponents of the Constitution did not want popular election of senators either. Their complaint ran the other way. Senators would be too independent of the states, not too dependent.

The Federal Farmer, in Letter XI of January 10, 1788, accepted that senators "must be appointed by the legislatures, by concurrent acts," and that "the states being sovereign and independent, are all considered equal, each with the other in the senate." He saw senators as representatives of "sovereignties." What he attacked was the term and the absence of a check: "Men six years in office absolutely contract callous habits," he wrote, recommending three or four years, and he urged Congress to "establish a right to recall members, and a rotation among them." Brutus, in the New York Journal of April 10, 1788, would have cut the term to four years ("Six years is a long period for a man to be absent from his home") and insisted "the legislatures should retain the right which they now hold under the confederation, of recalling their members." His reason: "Men long in office are very apt to feel themselves independent." Luther Martin, reporting to the Maryland legislature, put it most bluntly in his Genuine Information: "for six years the senators are rendered totally and absolutely independent of their States," they pay themselves from the national treasury, "and their States cannot recall them, nor exercise any controul over them."

The state conventions heard the same argument. In Massachusetts on January 19, 1788, Colonel Jones of Bristol said that "If men continue in office four or six years, they would forget their dependence on the people," and "We cannot, said he, recall them." Dr. Taylor contrasted the Confederation's annual delegates, rotation and recall with the Constitution's "shadow of rotation," concluding that "if they are once chosen, they are chosen forever." Fisher Ames answered that senators "represent the sovereignty of the states," that equal representation protected the state governments, and that direct election would lead to consolidation: "Too much provision cannot be made against a consolidation." Rufus King added that the classes made the average term about four years and that a legislature's public instructions would be hard to ignore: "they will be bold men indeed to act contrary to it." In New York on June 24 and 25, 1788, Gilbert Livingston moved an amendment making senators ineligible for more than six years in any twelve and letting the state legislatures recall and replace them. John Lansing supported it: recall had existed under the Confederation, had never been used, and had served as a check by existing. Robert R. Livingston called rotation "an absurd species of ostracism" that would bar experienced men from office, and Hamilton argued at length that stability and duration were what made a Senate useful in foreign affairs. The amendment failed.

Even the Constitution's friends in the press used the states-as-sovereigns language. "A Democratic Federalist," writing in Pennsylvania on November 26, 1787, defended the Senate against the aristocracy charge by saying "the federal Senate are the representatives of the sovereignties of their respective states," and therefore "as much a democratic body as the House of Representatives."

So both sides in 1787 and 1788 agreed that the Senate was the states' house. They disagreed about the leash. Federalists wanted a long term, no recall and payment from the national treasury, so senators could resist both popular passion and state parochialism. Anti-Federalists wanted a short term, recall and rotation, so senators would stay the states' creatures. The Constitution gave the Federalists everything they asked for on this point, and a century later reformers would argue that the Anti-Federalists had been right about one thing: six-year senators chosen by legislatures did become independent, though of the people rather than of the party machines that controlled the legislatures.

Why it mattered to them: the three purposes

Pulling the speeches and essays together, legislative election was expected to do three things, and the later history of the Senate can be read as a report card on each.

First, selection. Dickinson wanted "the most distinguished characters"; Gerry thought the legislatures had "more sense of character"; Madison in Federalist 62 claimed the advantage of "a select appointment." Story in 1833 summarized the claim: the method "would introduce a powerful check upon rash legislation" and connect the state governments with the national one (Commentaries, section 702). Haynes in 1906 would test the claim against the actual membership of the Senate and sort senators into categories that included "Rich Men" and "Representatives of Corporate Wealth" (lesson 03).

Second, defense of the states. Mason: "some means of defending themselves agst. encroachments of the Natl. Govt." Ellsworth: "engrafting it on that of the individual States." This is the claim that twentieth-century scholars like Todd Zywicki and Jay Bybee revived to argue that the Seventeenth Amendment removed the states' structural protection, and that Wendy Schiller, Charles Stewart and others have tested against what legislatures actually did with the power (lessons 08 and 09).

Third, harmony. Sherman said the states would become interested in supporting a national government whose upper house they chose; Dickinson spoke of collecting the sense of the states through their governments. Bryce, in 1893, judged this part a mixed success: the link had "helped to make the national parties powerful, and their strife intense," in the state legislatures, because "Every vote in the Senate is so important to the great parties that they are forced to struggle for ascendency in each of the State legislatures by whom the senators are elected." The deadlocks and bribery of the 1890s were that struggle at its worst.

Story was candid that the reasons appear only in "imperfect lights" in the debates, and he was right. The June 7 debate fills a few pages. The term and pay debates of June 25 and 26 are longer and tell you more about the intended character of the body. The best single statement of the whole design is still Madison's in Federalist 62, two sentences long, and he had voted against it.

Questions and answers

Did anyone at the Convention propose popular election of senators?

Yes, twice, and both times it was James Wilson of Pennsylvania. On June 7 he moved to postpone Dickinson's motion so he could offer election by the people, who "might be divided into proper districts for the purpose"; only Pennsylvania voted with him. On June 25 he proposed election by electors chosen by the people, and the motion was not seconded (Madison's notes, June 25). Hamilton's June 18 plan also used popular electors, with life tenure, and was never voted on. So the idea was in the room from the first week and never came close to passing.

Was the June 7 vote really unanimous?

Madison's notes record ten states voting aye and none voting no: Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia. New Jersey is not in the tally. Story described it as "an unanimous vote" and the Senate Historical Office says the delegates "approved" the method that day. The safe way to state it is that every state recorded voted aye. The confirming vote on June 25 was 9 to 2, with Pennsylvania and Virginia opposed.

Why did Madison oppose legislative election and then defend it?

He opposed it on June 7 because it conflicted with proportional representation, which he thought just, and because he distrusted state legislatures that "run into schemes of paper money." He lost. Once the Constitution was finished, he wrote as Publius to get it ratified, and in Federalist 62 he presented legislative election as "the most congenial with the public opinion" and "a convenient link between the two systems." Both positions are in the record. Neither cancels the other.

What did the Anti-Federalists want instead?

Shorter terms, recall by the state legislatures, and rotation in office. The Federal Farmer wanted three or four years and a right of recall. Brutus wanted four years and recall. Gilbert Livingston's amendment at the New York convention would have limited senators to six years in any twelve and let legislatures recall them. None of them proposed that the people elect senators directly. Their fear was independence from the states, not from the voters.

Could a state legislature legally instruct its senators?

Nothing in the Constitution forbids a legislature from passing a resolution telling its senators how to vote, and many did. Nothing makes the senator obey. Rufus King told the Massachusetts convention that senators "will be bold men indeed to act contrary" to public instructions, which is a prediction about politics, not a rule of law. Riker (1955) lists fifteen forced resignations under instruction from Adams in 1808 to Haywood in 1846, and six more he calls "almost forced" running to 1854, and Bryce wrote in 1893 that senators "are of course in no way bound to regard such instructions." Lesson 02 has the cases.

What did the original vacancy clause actually allow a governor to do?

Make a temporary appointment only "during the Recess of the Legislature," and only "until the next Meeting of the Legislature, which shall then fill such Vacancies." If the legislature was in session and failed to elect, the governor had no power. The Senate applied that rule strictly in the 1890s, refusing to seat appointees from Montana and Washington in 1893 (Wyoming's appointee resigned before the Senate ruled on him), from Oregon in 1897 and from Pennsylvania in 1899 after their legislatures deadlocked (lesson 03).

Is equal representation in the Senate part of the same compromise as legislative election?

No. They were decided on different days (June 7 and June 25 for the mode of election; July 16 for equal votes) by very different margins. They are linked in the Federalist's theory, where both make the government "FEDERAL, not NATIONAL," and Article V protects equal suffrage but says nothing about the mode of election. That asymmetry is why one could be amended in 1913 and the other, in practice, cannot be.

Where does the phrase "convenient link between the two systems" come from?

Federalist 62, by Madison, published February 27, 1788. The full sentence credits legislative appointment with "the double advantage of favoring 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." It is the most quoted sentence in the modern repeal debate, on both sides.

Hard questions

Isn't it misleading to call legislative election a "federal" design when the large states Massachusetts and New York voted for it too? Wasn't it just convenience?

Convenience was part of it. Dickinson, Sherman and Pinckney all pointed out that district elections were impractical in 1787, and Gerry said flatly "the people cannot be brought to one place for the purpose." But the arguments that carried the day on June 7 and June 25 were explicitly about the states as governments: Mason's "means of defending themselves," Ellsworth's "engrafting it on that of the individual States," Johnson's warning that the states would be "at the mercy of the Genl. Govt." Madison, who opposed the motion, understood it as a federal measure and said so, and then described it that way in Federalist 39 and 45. The large-state votes show that the federal argument persuaded delegates who had no small-state interest in it. That makes the design more federal, not less.

If the framers wanted a link to the states, why did they refuse recall, state pay and short terms? Doesn't that show the "link" was mostly rhetoric?

It shows the link was deliberately limited, which is different. The Convention wanted the legislatures to pick senators and then leave them alone for six years, so the Senate could be the "firm, wise and impartial body" Madison described on June 26 rather than an echo of the Confederation Congress with its recallable delegates. The choice of who sits is itself a form of influence, and a strong one: Bryce found a century later that the fight for Senate seats had made national parties "powerful" in the state legislatures. Whether selection without control was enough to protect state interests is exactly the empirical question lessons 08 and 09 take up. The design was coherent. Its adequacy is the debate.

Madison said in Federalist 63 that the Maryland Senate, also indirectly elected, had not turned aristocratic. Wasn't that a weak argument from one small example?

It was the example he had. Maryland's electoral college for its senate was the only American experiment in indirect election of an upper house at the time, and Haynes notes that New Hampshire and South Carolina had tried having their lower houses choose and had abandoned it. Madison's stronger argument in the same essay is structural: a Senate seeking tyranny would first have to corrupt the state legislatures, and "the periodical change of members would otherwise regenerate the whole body." That argument depends on the legislatures staying honest. The Lorimer and Clark cases a century later (lesson 03) are the test of what happens when they do not.

The Anti-Federalists predicted senators would become independent of the states. Weren't they simply proved right, making the whole Federalist defense a failure?

They were right about independence from the legislatures during a term; Tyler and Adams resigned rather than obey instructions, but most senators who disagreed with their legislatures simply ignored them. They were wrong about where the independence would lead. The Anti-Federalist fear was an aristocracy cut off from the states. What developed, as Bryce described by 1888 and Haynes by 1906, was senators tightly bound to state party organizations, chosen in caucuses whose results were "very often arranged beforehand by the party managers," and in the worst cases chosen for money. The framers' design failed in a way neither side in 1788 predicted, and the Seventeenth Amendment was a response to that failure, not to the one the Anti-Federalists forecast.

Hamilton admitted in Federalist 59 that states could destroy the national government by refusing to elect senators. Doesn't that make the design reckless?

He admitted it and explained why he thought it tolerable: staggered classes, two senators per state and a quorum rule meant that "a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body." History bore him out on the national level. By Haynes's count legislatures deadlocked 46 times between 1891 and 1905 and failed to elect at all 14 times, and the Senate kept functioning. The cost fell on the states themselves, which went unrepresented, and on their legislatures, which lost weeks of each session. Hamilton's reassurance was accurate about the Union and silent about Delaware.