The Senate and Hyper-Partisanship

I’ve posted a new, short essay on SSRN, “The Senate and Hyper-Partisanship: Would the Constitution Look Different If the Framers Had Known that Senators Would Be Elected in Partisan Elections?”  The essay was written for a symposium sponsored by the Georgetown Journal of Law and Public Policy on the topic of “Hyper-Partisanship and The Law.”

Here’s the Abstract:

This article is a contribution to the symposium “Hyperpartisanship and the Law,” sponsored by the Georgetown Journal of Law and Public Policy. The article considers the implications of direct election of United States Senators via partisan elections for the Constitution. As originally designed, the Senate was elected by state legislatures and the Framers anticipated (naïvely perhaps) that the Senate would be comprised of men chosen on the basis of distinction and ability rather than partisan allegiances. That system was changed in 1913 with the enactment of the Seventeenth Amendment, which adopted direct election of Senators. This article asks whether the Constitution would look different if the Framers had anticipated that Senators eventually would be elected by direct election as opposed to indirect election.

In particular, I focus on the distinctive powers given to the Senate within the federal constitutional structure and the reasons articulated for why those powers were given to the Senate: the power to try impeachments, to confirm nominees, and to ratify treaties, as well as the role of the Senate in the system of bicameralism and federalism. Although it is impossible to know for sure what the Framers would have done had they anticipated direct election in partisan elections I argue that it is likely that they would not have given the power to try impeachments to the Senate in the form that they did, it is reasonable that they might have changed the system of nomination and confirmation, and is likely that they would have retained the Senate’s major role in treaty confirmation. Although direct election dramatically diluted the value of bicameralism, it is likely that they would have retained a bicameral structure for most matters anyway. Finally, it is extremely likely that had they anticipated that Senators would be directly elected they would have built in additional explicit constitutional safeguards for the protection of federalism.

My impetus for writing this was the farcical Clinton impeachment proceedings many years ago, in which the Senate bore no real resemblance to the sort of jury contemplated by the Framers.  While it is plausible to think of an indirectly-elected Senate (at least how the Framers conceived of it) performing that function, that trial demonstrated the unsuitability of the currently-devised Senate in doing so (although it is not clear what the Framers might have put in its place).  That prompts some additional considerations on nominations, the treaty power, and other ruminations.