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December 2014 Brief: Volume 21, Number 35

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Should We Restore Bicameralism?

An analysis of the states’ relationship with the federal government
after passage of the 17th Amendment


by Gregory F. Zoeller, J.D., Indiana Attorney General



Many in our state [Indiana] and nation have serious concerns with the seeming dysfunction that grips Washington. They are searching for answers to what appear to be systemic problems. These problems raise questions that go to the structure of our Constitution. Overlooked by many is the role of the states within our federalist system. Our system of dual sovereignty expects states to provide a healthy check upon the federal government just as the federal government checks state government.


Originally, the Constitution allowed state legislatures to select senators and allowed the people to directly elect members of the House of Representatives.[1] The Founders established a bicameral legislature with members from each house selected through different procedures to ensure that the federal government did not trample the rights and powers properly reserved to the states.[2] The indirect election of senators distinguished their role from that of their colleagues in the House of Representatives: The members of the House represented the people, while senators represented the states.[3]


The indirect election of senators had several benefits for both the states and the federal government. It made the federal government more accountable to state governments. State legislatures originally selected senators to serve as the state’s agents in the federal government, and act on the states’ behalf.[4] These agents performed the necessary check on the House of Representatives by ensuring that the federal government did not pass legislation that would impose onerous burdens on the states.[5]


Despite these benefits, by the early 20th century, many people wanted to institute direct elections. After the 17th Amendment was ratified, however, the federal government increasingly passed legislation that burdened the states or infringed on powers traditionally reserved to the states.


State legislatures that wish to hold the federal government more accountable can either directly repeal the 17th Amendment by following the Article V processes or amend their state’s primary election statute to allow each party’s legislative caucus to choose its nominee for the general election. The people would then vote on the candidates in November at the general election in accordance with the 17th Amendment.


Allowing the legislative caucuses to select the parties’ nominees would once again allow states to hold the federal government more accountable because senators would view the states as the constituents and act in their states’ interests. It would also re-establish a greater degree of true bicameralism in Congress because the members of each house would be selected through different processes and would have to answer to different constituents, i.e., members of the House would answer to the people while senators would answer to both their state legislature and the people. Legislative nomination would also reduce the amount of influence that interest groups could exercise over senators because senators would no longer need to raise as much money for campaigns.


State legislatures have several methods to hold the federal government more accountable. This article presents two: 1) Indiana could repeal the 17th Amendment either by ratifying an amendment passed by both Houses of Congress that repeals the 17th Amendment or by calling a constitutional convention and instructing its delegation to pass an amendment repealing the 17th Amendment; or 2) Indiana could pass a law that allows the state Legislature to select the two candidates who will represent their parties in the general election. Although each method would achieve a similar result, if Indiana wishes to act on its own, option 2, passing its own law, is the most efficient option as the Article V amendment process requires action in other states as well as Indiana.


Reprinted with permission from the Indiana Policy Review. The full POLICY STUDY, Should We Restore Bicameralism? can be viewed at



[1] U.S., § 2m cl.1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”); U.S. I,§3, cl, (amended 1913) (“The Senate of the United States shall be composed of two senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”).
[2] See Todd J. Zywicki, “Beyond the Shell and Husk of History: The History of the 17th Amendment and its Implications for Current Reform Proposals,” 45 CLEV. ST. L. REV.165, 170 (1997) [hereinafter Zywicki, History] (citing The Federalist No. 51 (James Madison) (explaining that different methods should be used to select members of the two houses of Congress as a “means of keeping each other in their proper places”)); Todd J. Zywicki, “Senators and Special Interests: A Public Choice Analysis of the 17th Amendment,” 73 OR. L. REV. 1007,1014 n.42, 1034 (1994) (citing 2 J. Elliot, THE DEBATES OF THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 319 (1901) (remarks of A. Hamilton at New York ratifying convention) (“The equal vote in the Senate was given to secure the rights of the states…”); 2 J. STORY, COMMENTARIES ON THE CONSTITUTION 179, (1833) (“The equal vote in the Senate is…at once a constitutional recognition of the sovereignty remaining in the states, and an instrument for the preservation of it. It guards them against (what they meant to resist as improper) a consolidation of the states into one simple republic.”))
[3] See Todd J. Zywicki, “Beyond the Shell and Husk of History: The History of the 17th Amendment and its Implications for Current Reform Proposals,” 45 CLEV. ST. L. REV.165, 172 (1997).
[4] Id. at 170 (citing The Federalists No. 62 (James Madison) (explaining that the process of legislative selection provided “a convenient link between” the state and federal government and provided the states with agents in the federal government)).
[5] Id. at 171.


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