Eugene notes the interesting question of whether a state could pass an advisory recall of a Senator. As I discussed in one of my papers on the 17th Amendment (see this article, pages 171-173 especially) for the Framers the issues of “instruction” and “recall” were tied up together. Under the Articles of Confederation, state legislatures had the power of both instruction and recall. Under the Constitution, however, state legislatures continued to exercise the power of instruction, but no longer had the power of recall for failure to follow instructions. Senators were understood as being “ambassadors” of the state to the national government, thus it followed that they could be instructed.
The absence of a power of recall was a major sticking point for the Anti-Federalists, who anticipated that without the power of recall, the power of instruction would be largely a dead letter. My recollection–although I can’t at the moment place my hands on the source–was that there was a major showdown over instruction at the time of the Andrew Johnson impeachment, and that (if I recall correctly) at least one Senator resigned rather than voting to convict Johnson, as he had been instructed by the state legislature.
I’ve seen nothing in the history of the 17th Amendment that would suggest to me that the power of instruction and advisory recall was changed by the 17th Amendment. My reading of that history is that the 17th Amendment was designed to primarily just change the mechanism by which Senators were elected, but not to change the traditional idea that Senators were fundamentally ambassadors of the state. Of course, changing the mode of election has fundamentally changed the relationship between Senators and their electors, but based on my reading the legislative history of the 17th Amendment, I suspect that the sponsors of the amendment would have been surprised at the way in which the Senate as a political body has evolved into just another version of the House. My sense is that they thought that the norm that the Senate was a representative of the states in their corporate bodies was so deeply-rooted that merely changing the mode of election would have little effect, an assumption on which they were clearly incorrect.
S says:
I think senators still look after their State.
February 16, 2010, 2:12 pmDave N. says:
I am not aware of any Senators who resigned. Perhaps you are thinking of Senator Edmund G. Ross, a Radical Republican who sacrificed his political career by voting to acquit President Johnson — and who was immortalized by John F. Kennedy in the book Profiles In Courage.
February 16, 2010, 2:15 pmSoronel Haetir says:
Hadn’t the mode of election already changed for a substantial portion of the Senate anyway? It seems like those cases would be instructive, did the state legislatures think they could instruct senators who had been elected by popular vote? If not then the relation between senator, state legislature and populace had also already changed.
February 16, 2010, 2:23 pmSteve says:
I find it very, very difficult to believe that anyone involved with the 17th Amendment thought the power of “instruction” would continue to exist but would simply be delegated to the people together with the right to vote, given how impractical it would be for “the people” as a whole to exercise the power of instruction. Unless there is evidence that, following passage of the 17th Amendment, the people of various States held numerous referenda to exercise their “power of instruction,” I question whether the people believed they had any such power.
The more logical conclusion is that the ratification of the 17th Amendment demonstrated that the “power of instruction” was not viewed as particularly important any longer.
February 16, 2010, 2:31 pmS says:
Probably, they viewed the power of instruction as their weekly talks with the home state bosses in the legislature that now occurred with that new fangled telephone, and would continue to occur to this day.
February 16, 2010, 2:36 pmMark Field says:
I’d quibble with your use of the word “power” of instruction. There’s no doubt state legislatures did “instruct” their Senators. Whether he abided by those instructions, though, was entirely up to the Senator.
In this sense, the “power” to instruct was much like my power to summon spirits from the vasty deep.
February 16, 2010, 3:00 pmBob from Ohio says:
If he wanted re-election, he had to follow most (at least) of the instructions, certainly on crucial issues.
February 16, 2010, 3:09 pmDunstan says:
If Senators were just ambassadors of the states, then why have two of them from each state? Countries don’t have dual ambassadors to foreign nations.
February 16, 2010, 3:20 pmmls says:
It appears, though, that Senators generally followed instructions, or resigned (as suggested by the following quote from the Chafetz article:
Although the practice was not universally followed, Professor Riker counts fifteen such “forced resignations” (and another six “almost forced” resignations) between 1808 and 1854.
Thus, the power of instruction wasn’t meaningless, although it may have only been enforceable by virtue of tradition and social pressure.
February 16, 2010, 3:40 pmrequired says:
next thing I know you will be arguing that large population states are not underrepresented in the US senate because they have the exact same number of senators (2) as do smaller states.
which is just an aside from a reply to Dunstan. Usually countries have many ambassadors, it is just that terminology has shifted so that the title “Ambassador” (as opposed to position) is usually applied only to the head of the diplomatic mission while the other ambassadors have a variety of titles such envoy and charge applied to them. Kinda like saying there are very few police officers around because most of them are Sargent or lower instead of holding officer ranks. An ambassador is anyone who represents the interests of their country in foreign countries, The Ambassador to a country is the highest ranking of those ambassadors.
February 16, 2010, 3:42 pmMark Field says:
Depends on whether he thought the same legislators would still be around when he came up for re-election. In those days there was a lot of turnover.
While mls is right that Senators sometimes did resign rather than follow instructions with which they disagreed, it would be interesting to know how often they were instructed and did not resign.
February 16, 2010, 4:17 pmEvilDave says:
We can’t even get these Senators to pay their taxes. I don’t think “instruction” is going to do anything.
Odd how prescient the anti-Federalists were.
February 16, 2010, 4:54 pmS says:
Often, formerly referred to as Ambassador Plenipotentiary.
February 16, 2010, 4:58 pmSteve Lubet says:
Doesn’t the following provision of the 17th Amendment suggest that it was intended to change senators’ terms, and not merely the form of selection:
That is, the Amendment did change senators “terms,” but only prospectively. Couple that with the specificity of “six years” in the amendment’s first clause, and you end up with a new standard of a non-recallable six year term.
February 16, 2010, 5:30 pmInstruction and Recall: | Liberal Whoppers says:
[...] rest is here: Instruction and Recall: [...]
February 16, 2010, 6:15 pmAriel says:
On the point of dual ambassadors, Jefferson and Adams were both Ambassadors to France at the same time. I think Franklin might have been at the same time as well.
February 16, 2010, 9:04 pmSoronel Haetir says:
I see that clause as existing solely for insurance purposes to keep questions from being raised about the dwindling number of senators elected by state legislatures as the amendment came into force. Somewhat like the natural born citizen clause’s exception for existing citizens.
If the 17th didn’t have such a clause then political games could have been played trying to force out a legislatively elected senator.
February 17, 2010, 11:48 amRecall of U.S. Senators – Point of Order says:
[...] As suggested by Professor Volokh, this CRS report, and a separate post by Todd Zwicki, it seems fairly clear that the Constitution, in contrast to the Articles of Confederation, did not [...]
February 20, 2010, 11:55 amEgbert says:
Accomplishing some looking and observed your site seems a little messed up in my K-meleon net browser. But thankfully hardly anyone makes use of it any longer but you may possibly desire to appear into it.
September 9, 2010, 9:54 am