Academic

Interpreting the Seventeenth Amendment

By Calvin Massey

Last week, the New York Times ran an Op-Ed piece by Thomas Geoghegan that argued that the Seventeenth Amendment  requires an election for vacancies in the Senate, and that the proviso in the Amendment which permits the legislature of a state to vest in the executive authority of the state the power to make a "temporary" appointment "until the people fill the vacanc[y] by election as the legislature may direct" only authorizes very short term appointments, rather than the stub term of two years that is commonly provided by state legislation.  The issue has been considered once, in Valenti v. Rockefeller, 292 F.Supp. 851 (WD NY 1968), in which a three-judge court upheld New York's law that stipulated that vacancies occuring within 60 days of the primary election would be filled by gubernatorial appointment until the next succeeding general election, which in that case was some 29 months away.  The panel's ruling, based mostly on historical practice and the unqualified nature of the provisio, was upheld in a one sentence per curiam opinion of the SCOTUS.  District Judge Marvin Frankel dissented, relying mostly on the popular sovereignty intent of the Amendment.  

The Frankel/Geoghegan argument is based on original intent, while the panel opinion in Valenti is rooted in text and historical practice.   There are, of course, multiple modes of constitutional argument -- text, historical practice, original intent, original meaning, precedent, structure, pragmatism, and ethical, to name but a few of the most common -- but because there is little agreement on the priority of these arguments they tend to be used for expedient purposes.  I start with text, and on this matter it seems that the text is clear enough: The legislatures of the states have the constitutional authority to vest appointment  in the governor until an election "as the legislature may direct."  But suppose state law provided that a governor could appoint a replacement for the balance of the term.  A newly elected Senator dies and the governor appoints a replacement who will serve for six years.  Could this be consistent with the 17th Amendment?  An intra-textual argument, bolstered by historical practice,  suggests not.  The portion of Article I, section 3 that was superseded by the 17th Amendment authorized governors to make Senate appointments until the legislature next met, which, historically, was usually within a year.  

So, I think Geoghegan and Frankel are wrong.  Intent ought not overcome text, at least when text is reasonably free from ambiguity. 

Full post as published by The Faculty Lounge on January 13, 2009 (boomark / email).