Constitution of the United States/Art. I/Sec. 3/Clause 1 Composition

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 3 Senate

Clause 1 Composition

Clause Text
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.

Equal Representation of States in the Senate[edit | edit source]

Ratified in 1913, the Seventeenth Amendment superseded Article I, Section 3, Clause 1, providing for Senators to be popularly elected rather than selected by state legislatures.[1] The Seventeenth Amendment, however, incorporated other provisions of Article I, Section 3, Clause 1: equal suffrage among states, each state accorded two Senators, each of whom would have one vote and serve a six-year term.[2]

Adopted by the Constitutional Convention and incorporated in the Seventeenth Amendment, the text set forth in Article I, Section 3, clause 1, providing that "[t]he Senate of the United States shall be composed of two Senators from each State . . . and each Senator shall have one vote"[3] is foundational to the federal nature of the U.S. Government. By providing for each state to be represented in the Senate by two Senators, each with a single vote, the Constitution ensures that all states are equal in the Senate regardless of their relative population, wealth, power, or size.[4] By allocating power in the Senate equally among the states, the Framers counterbalanced allocating power in the House based on a state's share of the national population.[5]

The different compositions of the House of Representatives and Senate reflect the Framers' conception of the U.S. Government as both national and federal.[6] Consistent with a National Government, the Constitution provides for the American people to be equally represented in the House.[7] Consistent with a federation of states, the Constitution provides for equal representation of states in the Senate.[8] Stressing that equal suffrage is critical to state sovereignty in his Commentaries on the Constitution of the United States, Justice Joseph Story stated: "The equal vote allowed in the senate is . . . at once a constitutional recognition of the sovereignty remaining in the states, and an instrument for the preservation of it. It guards them against (what they meant to resist as improper) a consolidation of the states into one simple republic."[9] By arranging for the House and Senate to exercise legislative power jointly, the Framers required U.S. law to have both national and federal approval--a majority vote in the House of Representatives demonstrates national approval while a majority vote in the Senate expresses federal approval.[10]

Historical Background on State Voting Rights in Congress[edit | edit source]

The allocation of voting rights, often referred to as suffrage, in the two Houses of Congress was among the most contentious issues the Framers had to resolve at the Constitutional Convention.[11] Under the Articles of Confederation, each state had a single vote in a unicameral Congress.[12] Smaller states viewed this arrangement as essential to maintaining their autonomy from wealthier, more populated states. The concern of small states that the Constitutional Convention would eliminate Articles of Confederation language providing for equal suffrage among states was such that Delaware, in commissioning its delegates to the Convention, prohibited them from agreeing to any deviation from the principle of state equal suffrage.[13]

More populated states, however, viewed the Articles of Confederation's provision of equal suffrage among the states to be unjust because people in less populated states had relatively more influence in the U.S. legislature than people in more populated states. Accordingly, delegates from more populated states argued that state representation in Congress should reflect the relative sizes of state populations. For example, the Virginia delegates to the Constitutional Convention proposed, among other things, a bicameral Congress in which votes in both houses would be allocated among states in accordance with "the Quotas of contribution or to the number of free inhabitants, or to both."[14] After a proposal for proportional representation in the Senate won initial approval at the Constitutional Convention by a vote of six to five,[15] New Jersey proposed to retain the Articles of Confederation provision of equal suffrage among states.[16]

After further debate on congressional representation and equal suffrage among the states, the Constitutional Convention ground to a "standstill," at which point a committee, often referred to as the Committee of Eleven, was formed to develop a compromise.[17] The Committee of Eleven proposed that (1) representatives would be allocated in the House in proportion to the number of inhabitants and (2) each state would have an equal vote in the Senate.[18] After further debate and modification, the Great Compromise was adopted by a vote of 5-4 with Connecticut, New Jersey, Delaware, Maryland, and North Carolina in favor; Pennsylvania, Virginia, South Carolina, and Georgia against; Massachusetts divided; and New York absent, its delegation having left the Convention "because of their dissatisfaction with the way things were tending and because of their belief that they were unwarranted in supporting action taken in excess of their instructions."[19] Key to the Constitution's adoption,[20] equal suffrage among the states in the Senate ensured that the new American government would remain a federation of states.[21]

The importance of equal suffrage among the states set forth at Article I, Section 3, Clause 1 to the Constitution's adoption and ratification is further underscored by Article V of the Constitution. Article V, which provides for amending the Constitution, distinguishes equal suffrage among the states from the rest of the Constitution by making it unamendable, stating: "[N]o State, without its Consent, shall be deprived of equal suffrage in the Senate."[22] According to James Madison, Roger Sherman of Connecticut, who was one of the architects of the Great Compromise, raised this issue during debate on Article V. Madison stated:

Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso . . . should be extended so as to provide that no State . . . should be deprived of its equality in the Senate.2 The Records of the Federal Convention of 1787, at 629 (Max Farrand ed., 1911) (James Madison's notes, Sept. 15, 1787).

After some debate, Gouverneur Morris proposed the language that the Convention ultimately adopted.[23]

Selection of Senators by State Legislatures[edit | edit source]

By providing for Senators to be selected by popular vote, the Seventeenth Amendment superseded the Framers' decision--set forth in Article I, Section 3, Clause 1--that state legislatures choose Senators.[24] The Seventeenth Amendment thereby harmonized selection of the Senate with that of the House, the Members of which the Framers provided to be elected by popular vote.[25]

During the Constitutional Convention, the Framers considered several methods for selecting Senators.[26] While James Wilson, James Madison, and George Mason supported direct election of Senators through popular votes,[27] other proposals provided for the House of Representatives to elect Senators directly or from a pool of nominees chosen by state legislatures.[28] Ultimately, the Framers agreed that state legislatures would select Senators.[29]

The Framers' decision to distinguish selection of the Senate from selection of the House of Representatives was consistent with established practices. Following the example of the British House of Commons, colonial charters and state constitutions generally provided for one branch of their legislatures to be selected by popular vote.[30] Popular votes were not the only method of selecting representatives of the people, however. For instance, under the Articles of Confederation, state legislatures selected delegates to Congress, while the Maryland House of Delegates appointed the Maryland Senate.[31] Thus, popular votes influenced selection of--rather than selected--Congress under the Articles of Confederation and the Maryland Senate. The Framers, moreover, appear to have viewed both direct elections of Members of the House through popular votes and selections of Senators by state legislatures, members of which had been directly elected by popular vote, as consistent with republican government. Although James Madison advocated for direct election of Senators at the Constitutional Convention, he observed in the Federalist No. 39 that "[i]t is SUFFICIENT for such a [republican] government that the persons administering it be appointed, either directly or indirectly by the people . . . ."[32]

Although the Constitution has provided for the Senate to be popularly elected since 1913, at the time of the Nation's inception, selection of the Senate by state legislatures provided certain benefits both to states and the new U.S. Government. By selecting Senators, state legislatures could directly impact Senate decisions, which, in turn, strengthened ties and improved communication with Congress. Because Senators owed their appointments to state legislatures, they had incentives to be responsive to the needs of their states. Consequently, state legislatures had greater ability to advance their interests in Congress.[33] Describing this benefit, James Madison wrote: "It is recommended by the double advantage of favouring 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."[34] Finally, by requiring no specific selection process, Article I, Section 3, Clause 1 allowed state legislatures to tailor the process of selecting Senators to the state's unique circumstances.

Six-Year Senate Terms[edit | edit source]

Although the Seventeenth Amendment superseded Article I, Section 3, Clause 1, it incorporated the six-year Senate term the Framers had provided in Article I, Section 3, Clause 1.

During the Constitutional Convention, the Framers discussed extensively the appropriate term for Senators and Representatives to serve in Congress. Proposals for Senate terms ranged from life terms subject to good behavior[35] to limited terms ranging from three to nine years.[36] The Framers appear to have recognized a relationship between the length of Senate and House terms and the respective roles of the two houses. For instance, after reducing a proposed three-year House term to two years in order to compromise with advocates for one-year House terms,[37] the Framers reduced the seven-year Senate term, which had been discussed in conjunction with the three-year House term, to six years.[38] In the Federalist Papers, James Madison noted that the six-year Senate term was consistent with state senate terms.[39]

Commentators have viewed the six-year Senate term and two-year House term as striking a careful balance between institutional stability provided by a longer Senate term and legislative responsiveness provided by shorter House terms punctuated by frequent elections. Explaining the Senate's greater permanence as moderating more volatile short-term House interests, Justice Joseph Story stated in his Commentaries on the Constitution of the United States: "[The Senate's] value would be incalculably increased by making its term in office such, that with moderate industry, talents, and devotion to the public service, its members could scarcely fail of having the reasonable information, which would guard them against gross errors, and the reasonable firmness, which would enable them to resist visionary speculations, and popular excitement."[40]

  1. Seventeenth Amendment Popular Election of Senators.
  2. Id. ("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.").
  3. Art. I, Sec. 3, Clause 1 Composition; Seventeenth Amendment Popular Election of Senators.
  4. See, e.g., Joseph Story, Commentaries on the Constitution of the United States § 691 (1833) ("[E]ach state in its political capacity is represented upon a footing of perfect equality, like a congress of sovereigns, or ambassadors, or like an assembly of peers.").
  5. Compare Art. I, Sec. 3, Clause 1 Composition with Art. I, Sec. 2, Clause 3 Seats.
  6. Joseph Story, Commentaries on the Constitution of the United States § 696 (1833) ("[T]he very structure of the general government contemplated one partly federal, and partly national.").
  7. Art. I, Sec. 2, Clause 3 Seats.
  8. Art. I, Sec. 3, Clause 1 Composition.
  9. Joseph Story, Commentaries on the Constitution of the United States § 696 (1833). See also The Federalist No. 62 (James Madison) ("[T]he equal vote allowed to each State is at once a constitutional recognition of that portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.").
  10. The Federalist No. 62 (James Madison) ("No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States."). The Framers also saw the division of power between the House and Senate as ensuring that they would check abuses of power by the other. Id. ("[A] senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.").
  11. Joseph Story, Commentaries on the Constitution of the United States § 692 (1833). See also Max Farrand, The Framing of the Constitution 93 (1913) (referring to "'the most fundamental points, the rules of suffrage in the two branches.'") (quotation retained).
  12. The Articles of Confederation of 1781, art. V, reprinted in Max Farrand, The Framing of the Constitution app. I (1913) ("In determining questions in the united states, in Congress assembled, each state shall have one vote."). The Articles of Confederation further provided that each state legislature would determine how its delegates would be appointed; appointments would be on an annual basis; and that states could recall their delegates and replace them at any time during the year. Id. Finally, the Articles provided that states could send between two to seven delegates to Congress, limited delegates to serving no more than three terms in any six-year period, and proscribed delegates from holding any office in the United States "for which he, or another for his benefit receives any salary, fees or emoluments of any kind." Id.
  13. Max Farrand, The Framing of the Constitution 24 (1913) (noting that the Delaware commission provided "that such Alterations or further Provisions, or any of them, do not extend to that part of the Fifth Article of the Confederation . . . which declares that 'In determining Questions in the United States Congress Assembled each State shall have one Vote'").
  14. The Virginia Plan, reprinted in Max Farrand, The Framing of the Constitution app. II, arts. 2 & 4 (1913). Article 2 of the Virginia Plan circulated by Edmund Randolph of Virginia on May 29, 1787, provided: "[T]he rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contributions, or to the number of free inhabitants, as the one or the other rule may seem best in different cases." Id. See also Max Farrand, The Framing of the Constitution 69 (1913). The "Quotas of contributions" to which the Virginia Plan referred were the shares or taxes that the states were to contribute to pay the expenses of the U.S. Government. Under the Articles of Confederation, the states' shares were determined generally "in proportion to the value of surveyed land within their borders." From the Declaration of Independence to the Constitution, the Roots of American Constitutionalism xliii (C.J. Friedrich & Robert G. McCloskey eds., 1954). Article VIII of the Articles of Confederation stated:All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled from time to time direct and appoint.The Articles of Confederation of 1781, art. VIII, reprinted in Max Farrand, Framing of the Federal Constitution, app. I (1913) (emphasis added).Rufus King of Massachusetts objected to the Virginia Plan's use of "Quotas of contribution"on the grounds that the amounts for which each state would be responsible would constantly fluctuate. 1 The Records of the Federal Convention of 1787, at 36 (Max Farrand ed., 1911) ("Mr. King observed that the quotas of contribution which would alone remain as the measure of representation, would not answer; because waiving every other view of the matter, the revenue might hereafter be so collected by the general Govt. that the sums respectively drawn from the States would [not] appear; and would besides be continually varying."). In light of King's concerns, the "Quotas of contribution" language was removed. Id. ("Mr. Madison admitted the propriety of the observation, and that some better rule ought to be found. Col. Hamilton moved to alter the resolution so as to read 'that the rights of suffrage in the national Legislature ought to be proportioned to the number of free inhabitants.' Mr. Saight 2ded. the motion."). Notwithstanding, debate over the role that wealth should play in how states were represented in the National Government continued. See, e.g., id. at 541-542, 567 (James Madison's notes, July 6, 1787; James Madison's notes, July 10, 1787).
  15. Max Farrand, The Framing of the Constitution 75 (1913).
  16. 1 The Records of the Federal Convention of 1787, at 242-245 (Max Farrand ed., 1911) (James Madison's notes, June 15, 1787).
  17. Max Farrand, The Framing of the Constitution 97 (1913). The Committee of Eleven was comprised of Gerry, Ellsworth, Yates, Paterson, Franklin Bedford, Martin, Mason, Davie, Rutledge, and Baldwin. 1 The Records of the Federal Convention of 1787, at 509 (Max Farrand ed., 1911) (Journal, July 2, 1787).
  18. See Art. I, Sec. 1: The Great Compromise of the Constitutional Convention. See also Max Farrand, The Framing of the Constitution 99 (1913).
  19. Max Farrand, The Framing of the Constitution 105 (1913).
  20. See Art. I, Sec. 1: The Great Compromise of the Constitutional Convention. The Great Compromise is also referred to as the Connecticut Compromise because of the Connecticut delegation's role in its adoption. Max Farrand, The Framing of the Constitution 106-107 (1913). See also id. at 146 ("The great compromise had provided that direct taxation should be proportioned to population . . . .").
  21. Max Farrand, The Framing of the Constitution 134 (1913).
  22. Article V Amending the Constitution.
  23. Id. at 631.
  24. Seventeenth Amendment Popular Election of Senators.
  25. Compare Seventeenth Amendment Popular Election of Senators with Art. I, Sec. 2, Clause 4 Vacancies.
  26. Max Farrand, The Framing of the Constitution 76 (1913).
  27. Id.
  28. Id. See also Joseph Story, Commentaries on the Constitution of the United States § 701 (1833).
  29. Joseph Story, Commentaries on the Constitution of the United States § 701 (1833).
  30. Popular votes did not mean universal suffrage. For instance, as the author of the Federalist No. 57 notes, participation in county elections for the British House of Commons was limited to "persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money." The Federalist No. 57 (Alexander Hamilton or James Madison). See also The Federalist No. 63 (Alexander Hamilton or James Madison) ("But if anything could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and in very great proportion, by a very small proportion of the people.").
  31. The Federalist No. 39 (James Madison) ("The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people.").
  32. Id.
  33. See Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177, 214 (2008) (noting that Senators who refused to follow their state legislature's directions were expected to resign).
  34. Joseph Story, Commentaries on the Constitution of the United States § 702 (1833); The Federalist Nos. 62 (Alexander Hamilton) & 27 (Alexander Hamilton).
  35. Joseph Story, Commentaries on the Constitution of the United States § 707 & n.1 (1833).
  36. Id.
  37. Max Farrand, The Framing of the Constitution 76 (1913).
  38. Id. at 91. The Federalist Papers discuss state practices with respect to their "most numerous branches," stating: "In Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial as is proposed in the federal government." The Federalist No. 53 (Alexander Hamilton or James Madison).
  39. The Federalist No. 39 (James Madison) ("The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia.").
  40. Joseph Story, Commentaries on the Constitution of the United States § 712 (1833). Justice Story continued: "If public men know, that they may safely wait for the gradual action of a sound public opinion, to decide upon the merit of their actions and measures, before they can be struck down, they will be more ready to assume responsibility, and pretermit present popularity for future solid reputation." Id.