Constitution of the United States/Art. I/Sec. 3/Clause 2 Seats

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
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
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 2 Seats

Clause Text
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.

Staggered Senate Elections[edit | edit source]

The Framers provided for change in the Senate to occur gradually while ensuring that the Senate remained responsive to popular interests by providing for one-third of Senate seats to be filled every two years.[1] Consequently, the Framers adopted Article I, Section 3, Clause 2, which provided, among other things, a mechanism for staggering Senate terms. This clause provided that one-third of Senators selected to the First Congress would serve a two-year term, one-third of Senators would serve a four-year term, and one-third of Senators would serve a six-year term. After these initial terms concluded, all Senate seats would have six-year terms. In dividing the Senate seats into the three classes, Congress allocated them so "that both senators from the same state should not be in the same class, so that there never should be a vacancy, at the same time, of the seats of both senators."[2]

By staggering the filling of Senate seats so that only one-third of Senate seats may be changed at any time, Article I, Section 3, Clause 2, ensured that modifications to the Senate's membership would be gradual and occur over a series of elections.[3] Discussing the benefits of this system, Justice Story noted:

[I]t is nevertheless true, that in affairs of government, the best measures, to be safe, must be slowly introduced; and the wisest councils are those, which proceed by steps, and reach, circuitously, their conclusion. It is, then, important in this general view, that all the public functionaries should not terminate their offices at the same period. The gradual infusion of new elements, which may mingle with the old, secures a gradual renovation, and a permanent union of the whole.Id. at § 713.

Moreover, because all Members of the House of Representatives are subject to election every two years, the make-up of the House and its agenda may change significantly from election to election. As such, six-year staggered Senate terms provide Congress an institutional stability anchored by the Senate that may counterbalance rapid, fluctuating changes in the House. Discussing this balance in his Commentaries on the Constitution of the United States, Justice Joseph Story stated: "[The Senate] combines the period of office of the executive with that of the members of the house; while at the same time, from its own biennial changes, . . . it is silently subjected to the deliberate voice of the states."[4]

Staggering when Senate seats are filled also ensures that states have at least one Senator with previous experience in the Senate. States may realize benefits from their Senators acquiring seniority in the Senate. Committee chairmanships and other leadership roles allow Senators to prioritize their states' interests. Moreover, institutional knowledge of, and greater experience with, the Senate facilitates the ability of Senators to advance state interests. By providing that Senators from the same state were not assigned the same term (two, four, or six years) at the first Congress, Congress ensured that states did not have two senators who were new to the Senate at the same time.[5]

Finally, because Senate elections are staggered, the Senate is a continuing body. Consequently, while each election cycle ushers in a new House of Representatives, there has only been one Senate. As the Supreme Court observed in McGrain v. Daugherty, the Senate "is a continuing body whose members are elected for a term of six years and so divided into classes that the seats of one-third only become vacant at the end of each Congress, two-thirds always continuing into the next Congress, save as vacancies may occur through death or resignation."[6] Consequently, because the Senate is a continuing body, the Supreme Court has reasoned that expiration of Congress did not moot a warrant for a witness who had refused to testify before a Senate committee.[7]

Senate Vacancies Clause[edit | edit source]

The Seventeenth Amendment's ratification in 1913 provided for the Senate to be elected by popular vote rather than chosen by state legislatures, thereby harmonizing the Senate selection process with that of the House.[8] Consistent with this, the Seventeenth Amendment set aside the Senate Vacancy Clause set forth at Article I, Section 3, Clause 2, which provided for state legislatures to fill Senate vacancies, mandating, instead, that a state's Executive Authority[9] fill vacant Senate seats through popular elections. Accordingly, the Seventeenth Amendment's Senate Vacancy Clause mirrors the House Vacancy Clause by providing that "the executive authority of such State shall issue writs of election to fill vacancies . . . ."[10] The Seventeenth Amendment, however, provides state legislatures greater flexibility to address Senate vacancies by allowing state legislatures to authorize state Governors to fill Senate vacancies temporarily until the election.[11]

The Framers distinguished the Senate Vacancy Clause set forth at Article I, Section 3, Clause 2, from the House Vacancy Clause set forth at Article I, Section 2, Clause 4, by expressly contemplating that vacancies in the Senate might arise from resignations. By contrast, the House Vacancies Clause does not refer to resignations. Because state legislatures selected their state's Senators prior to the 1913 ratification of the Seventeenth Amendment, the express discussion of resignations in the Senate Vacancy Clause may have tacitly recognized, as one commentator has noted, that Senators who declined to follow directions of their state legislatures were expected to resign.[12]

  1. See, e.g., 2 The Records of the Federal Convention of 1787, at 418, 435 (Max Farrand ed., 1911).
  2. Joseph Story, Commentaries on the Constitution of the United States § 724 (1833).
  3. Id. at § 712.
  4. Id. at § 712.
  5. Id. at § 724 ("In arranging the original classes, care was taken, that both senators from the same state should not be in the same class, so that there never should be a vacancy, at the same time, of the seats of both senators.").
  6. McGrain v. Daugherty, 273 U.S. 135, 181 (1927). See also Edward S. Corwin, The Constitution and What it Means Today 12 (Harold W. Chase & Craig R. Ducat eds., 1973) (1958) ("While there have been 92 Congresses to date, there has only been one Senate, and this will apparently be the case till the crack of doom.").
  7. McGrain, 273 U.S. 135.
  8. Seventeenth Amendment Popular Election of Senators. See Art. I, Sec. 2, Clause 4 Vacancies.
  9. The Framers' use of the term "executive authority" reflected that early state constitutions often provided for an executive council to control or advise the state's chief executive. Charles C. Thach, Jr., The Creation of the Presidency, 1775-1789: A Study in Constitutional History 16-17 & n.7 (Johns Hopkins U. Press 1969) (1923).
  10. Seventeenth Amendment Popular Election of Senators.
  11. Id. ("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.").
  12. Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177, 214 (2008).