Interactive Constitution Essay: Article I, Section 3—U.S. Senate

After returning from France in 1789, Thomas Jefferson reputedly asked George Washington, while they were having breakfast one morning, why Washington had agreed to the creation of the United States Senate in the Constitution. Noting the saucer on which Jefferson’s hot coffee, or tea, rested, Washington explained, “we pour our legislation into the senatorial saucer to cool it.” No one knows if this story is really true, but it nonetheless nicely captures what the Framers hoped to achieve in establishing the United States Senate.

Most importantly, as reflected in Article I, Section 3, the Framers designed the Senate, like they had other fixtures within the Constitution, such as the Electoral College and the judiciary, to be counter-majoritarian. The Framers’ distrust of tyrannies extended to popular majorities, and the Senate was originally constructed and empowered to function in ways that frustrated direct democracy and kept the House of Representatives in check. Whereas the Constitution provided that members of the House of Representatives would each be elected by popular majorities in their respective districts, the Constitution originally treated Senators quite differently. In the original design, Senators were chosen by their respective State legislatures; indeed, as a result, they were subject to instruction and recall if they did not do what their legislatures told them to do.

Moreover, the Constitution provides, in one of the most important compromises forged at the Constitutional Convention, that each State has two Senators in the Senate, regardless of the size of its population. This feature ensured each of the small States, such as Delaware, would wield as many votes as each of the larger ones, such as New York. The Constitution thus gave small States the means to protect themselves from having their interests and sovereignty overrun by the large States.

The idea behind the Constitution’s ensuring Senators were not subject to direct pressure or retaliation from popular majorities is facilitated further through the length of the terms and the requisite qualifications for Senators, which are also set forth in Article I, Section 3. Whereas the Constitution provided the minimum age for membership in the House of Representatives to be 25 and for every seat in the House to be up for re-election every two years, it provided for the minimum age for serving in the Senate to be 30 and for Senators’ terms to last for six years. The relatively higher minimal age requirements for Senators and longer lengths of Senate terms were designed to increase the likelihood that Senators would be better educated and more disposed than their House counterparts to take the long view on important issues.

The different powers of the House and Senate further reflect the Framers’ hopes for the Senate’s disposition toward the implementation or protection of classical republican values, such as ennoblement through public service. So, the Constitution did not vest the House of Representatives with the power to complete any legislative action—apart from its powers provided elsewhere within Article I—to issue rules for its internal governance, to judge its members’ elections and returns and qualifications, and to expel members for disorderly conduct, as provided elsewhere. Even with its “sole” power to impeach, the House may only initiate a legislative action but must depend on the Senate to complete the job, whether it entails enacting a law or convicting and removing a high-ranking official, such as the President, for serious misconduct in office.

In Article I, Section 3, the Constitution, quite deliberately, vests the Senate with the authority to undertake four specific actions, none with the formal input or approval of the House, including providing advice and consent to presidential nominations, ratifying treaties, conviction and removal of high-ranking officials for misconduct, and approving constitutional amendments. The requirements that three of these may be done only pursuant to super-majority votes—ratifying treaties, amending the Constitution, and convicting and removing high-ranking officials for misconduct—are designed, as James Madison explained in The Federalist No. 58 as a “shield to some particular interests, and another obstacle generally to hasty and partial measures.”

The ratification of the Seventeenth Amendment in 1913, however, transformed the Senate. By making Senators subject to popular election in their respective States, it effectively democratized the Senate and, in doing so, abandoned one of the critical differences between the House and the Senate—namely, Senators’ dependence on and allegiance directly to their States. This transformation weakened one of the strongest connections between Senators and their States as sovereign entities; it made it easier for Senators to pay less attention to local or state leaders’ concerns about federalism and more prone to follow the popular will, even if it meant sacrificing State sovereignty. It is no coincidence, many scholars believe, that it was after the ratification of this transformative Amendment that the Senate joined the House in expanding to unprecedented degrees the size and scope of the federal government, all at the expense of State sovereignty. With this Amendment firmly in place, these scholars argue further, there is no turning back of the transformation it wrought.