Are appointments of Senators unconstitutional?

By John Burke | Related entries in Constitution, Illinois, Senate

Thomas Geoghegan, a well-known liberal lawyer who is running for Congress in Illinois, had an op-ed piece in the The New York Times yesterday that raised a question I must admit I hadn’t known even was a question: are appointments by governors to fill Senate vacancies unconstitutional?

The 17th Amendment to the U.S. Constitution, adopted in 1913 to require the election of Senators by the people, not by state legislatures, also requires governors to “issue writs of elections” when Senate vacancies occur. It then adds this proviso: “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.”

According to Geoghegan, “the proviso simply allows the governor to make a temporary appointment until there is a special election at such time and place that the legislature determines.” It does not cancel the requirement to “issue writs of elections.”

“Yet the current practice in virtually every state flips the proviso to override the main clause,” Geoghegan notes, a practice that “frustrates the whole democratic thrust of the amendment.”

Geoghegan points out that the Supreme Court has never ruled definitively on this practice, even though its been going on for decades. He says the only precedent comes from a decision by a federal appeals panel (Valenti v. Rockefeller) upholding the Governor of New York’s decision to fill the vacancy created by Robert F. Kennedy’s murder. That decision rested on the fact that Kennedy’s death in June 1968 did not leave enough time to hold a primary prior to an election in November of that year.

This is fascinating. If Geoghegan is right, someone might be able to challenge the constitutionality of Rod Blagojevich’s appointment of Roland Burris (or any other gubernatorial appointment). Any thoughts on this from all the Constitutional scholars out there?

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This entry was posted on Thursday, January 8th, 2009 and is filed under Constitution, Illinois, Senate. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

2 Responses to “Are appointments of Senators unconstitutional?”

  1. Mike Says:

    There is not a single piece of the 17th Amendment than can challenge the constitutionality of Burris’ appointment by Blagojevich. What can be challenged is how long he sits in the Senate, by forcing the issue of the ‘writ of elections’. The appointment is already “provided” for in the amendment, and the op-ed piece never questions it.

    Reading the proviso, though, shows how much spin the author of the op-ed piece is putting on it in order to get his article published (and sell ore of his books). The answer is the final line: “… until there is a special election at such time and place that the legislature determines.” Simply stated, the legislature decides when to hold the election. So, they have every right to say “we’ll hold the election with the next general election, or whenever the normal election for that seat should be”. Done, case closed.
    I believe it is the feeling of most legislatures and governors that filing the ‘writ of elections’ is a waste of time and effort, because the legislatures will just follow the above logic and nothing in the process is affected.

    That being said, there is still nothing in the Constitution that was violated when Blago, still sitting in his seat as Governor of Illinois, appointed Burris to the vacancy.

    The real question is: how many Illinois state laws did Jesse White violate by not signing the appointment papers? Where is the law written that gives him such overriding power over the Governor? As far as I read, that power is only left to the Illinois Supreme Court.

  2. Jim Says:

    I contend that the 17th Amendment is not truly part of the Constitution? Why simply because any deprivation of equal representation of a State (government) in the Senate requires its consent, which means of course that it requires the consent of all, 100 percent and not just 75 percent of all States as in the case of all other Amendments. When the 17th was passed it was assumed that Senators would continue to represent their respective states governments. However as has been pointed out; it is evident that the loyalty of our Senators is to special interests groups that provide them with campaign money possibly in a few cases to the people but defiantly not to the States to the degree devotion intended by the Constitution.

    As it has been declared by many of us the result of 17th amendment was of great concern of our Founding Fathers: Fisher Ames of Massachusetts declared in 1788: “The state governments are essential parts of the system. The senators represent the sovereignty of the states;. they are in the quality of ambassadors of the states..[But suppose] that they [were] to be chosen by the people at large. Whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on whom would devolve the duty of defending them against the encroachments of the federal government?”Remarks in the Massachusetts ratifying convention, 19 January 1788; in Elliot 2:46;

    Article Five [In its entirety]
    The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; [I introduced the break in the paragraph]
    provided that no amendment which may be made prior to the Year One thousand eight hundred and eight shall in any manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its consent, shall be deprived of it’s equal suffrage in the Senate. [Emphasis added]

    suf•frage the right of voting : franchise; also : the exercise of such right

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