• 01 January 2010

The Constitutional Life of Legislative Instructions in America

Christopher Terranova

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Under the Articles of Confederation, state legislatures often formally instructed their federal representatives on particular votes, continuing a practice common in England and the American colonies.  This occurred, to some later scholars’ dismay, even after James Madison argued that the Senate was designed to provide “a due sense of national character” and after a constitutional amendment providing the “right to instruct” was rejected by both houses of the First Congress.1 Not only did instructions thrive as a part of the constitutional practice of the Founding generation, they remained common—and potent—for many years afterward.  By the end of the Jacksonian era, at least a dozen U.S. senators had resigned in disagreement with their state legislatures’ instructions.  More would resign before the Civil War began.  Countless others, for a time, simply acceded to their state legislatures’ wishes.

This Editorial explores why state legislatures abandoned the practice of instructing U.S. senators after a century of vigorous use.  In Part I, I argue that the six-year term length for senators, in combination with the possibility of relatively rapid turnover in state legislatures, prevented binding instructions from remaining a common practice.  In Part II, I explain why instructions disappeared after the Civil War.

 
I.
The Interrelation Between State Law and the Constitution

The Seventeenth Amendment, which required senators to be elected by the people, is commonly blamed for the demise of instructions.  However, instructions fell into disuse long before the Amendment was adopted.  Rather, the six-year term length for U.S. senators, combined with the possibility of rapid turnover in state legislatures, prevented binding instructions from becoming entrenched.  Although many states believed the right to instruct was important, the structure of state legislatures limited their ability to instruct federal representatives.  If state legislators had long term lengths, their threats in year one not to reelect disobeying senators might remain credible by year six.  However, state legislators at the Founding had shorter term lengths than U.S. senators.  Promises to punish a senator for disobeying an instruction would be hard to keep if the same state legislators were not around for the senator’s reelection.  And later, as it became more popular to divide legislative bodies into lots or classes for staggered elections, state legislatures turned over more frequently, further weakening the doctrine of instruction.

 
A.     Input from the Lower Houses in State Legislatures

In broadly worded language, the original Constitution specified that senators would be “chosen by the Legislature” of the state.2 Because states had presumptive control over the “manner” of Senate elections, states with a multicameral legislative branch might have been able to select senators by a vote in only one house.  Placing the vote in the hands of the upper house, which generally had a longer term length, could have given the state greater leverage over its senators.  By taking into account the votes of the lower house, however, states undercut their ability to ensure that their senators would obey instructions.

 
B.     Short Term Lengths in State Legislatures

By the year 1803, seventeen states had been admitted to the Union.  The short term length these states provided for their state legislators is striking.  All of the states except two elected their lower house annually (or more often), and the median term length in upper houses was two years (mean length of 2.3 years).  Only one state, Maryland, gave its upper house a term length greater than four years—and even it was not willing to go as high as six years.  The shorter term lengths are understandable.  U.S. senators had a long six-year term so they could learn about foreign affairs and the vast (and growing) territory of the United States—concerns that state legislators did not share.  Nevertheless, this structure made it difficult for binding instructions to take hold.

 
C.     Staggered Elections in State Legislatures

In addition, many state legislatures began to split the members of the upper house of their legislature into lots or classes.  For example, no longer would the entire Maryland Senate stand for reelection every fifth year; in 1851, its new constitution shortened the term length to four years and provided that every two years, one-half of the Senate would face reelection.  Staggered elections meant that new members would enter the upper house at more frequent intervals, diminishing the ability of one state legislature to issue credible threats not to reelect a U.S. senator.

 
D.     Ignoring Threats Not To Reelect

A senator wishing to cast a vote contrary to a state legislature’s instruction could take comfort in the fact that different state legislators very likely would be voting for his reelection.  In fact, this often happened.  Often, senators’ longer term lengths allowed them to stand their ground if they believed they could convince the next wave of state legislators not to follow through on their predecessors’ threats.  For example, in 1835, Samuel Southard, a Whig senator from New Jersey, disobeyed instructions to expunge the censure of President Andrew Jackson from the Senate Journal.  He believed the expunging resolution would be a “degradation of the most humiliating character” for the Senate, and refused to vote for it.3 He did not quietly cast his vote; instead, he gave a long and forceful speech criticizing the doctrine of instruction, calling it “an evil,” which the Framers employed “extra constitutional means to prevent.”4 Nevertheless, Southard was reelected in 1838.  By that time, the expunging resolution had faded from voters’ minds, as they dealt with the effects of the Depression of 1837.  Voters in New Jersey blamed the party in power (the Democrats) for the depression, helping the Whigs regain control of the state legislature, thus assuring Southard’s easy reelection.

Senator Southard’s reelection after violating instructions on the biggest issue of the day illustrates a key lesson:  The six-year term for senators, when compared to the short term lengths for state legislators, undercut the doctrine of instruction because senators could disobey if they were willing to take their chances with the future members of the state legislature.  Once the culture of adherence to instructions weakened, there was no constitutional structure in place to sustain it.

 
II.
Reconstruction and the Quiet Demise of the Right To Instruct

Instructions in the United States first thrived in New England town meetings, but President Jackson permanently changed the way instructions were viewed.

 
A.     President Jackson’s Use of Instructions

Although Jackson was not the first to use instructions for political purposes, he was devastatingly successful at deploying them to expand the Democratic party in the South.  As state legislatures began to turn Democratic in the mid-1830s, Jackson urged Southern Democratic state legislators to instruct their Whig senators on the politically divisive matters of the day.  This would put the senators in the position of either voting against their party or against their instructions—a difficult choice in areas like Virginia, where most people strongly believed in the sanctity of instructions.  In such areas, a vote against an instruction was more than a vote against the community’s desired outcome; it was an insult to the community—a declaration that its formal opinion, democratically expressed, did not matter. Thus, senators from these places faced an especially delicate task when deciding whether to violate their instructions or violate their conscience—and many, not surprisingly, resigned before or shortly after their votes.

 
B.     Instructions and the Lead-up to the Civil War

After Jackson’s use of instructions to “intervene in state politics and purge his opponents”5 in the Senate, the doctrine was strongly, if not indelibly, associated with Southern Democrats.  Leading up to the Civil War and faced with the momentous decision of whether to secede from the Union, some state legislatures in the South used instructions to express their views to their senators.  However, with party lines drawn, some saw the instructions as divisive.  In Maryland, an attempt to issue such an instruction upset the Whigs, who objected to the “ill-timed introduction of an abstract party principle in the face of a great crisis.”6 Not surprisingly, the issue of slavery was more important than instructions.  Even before the Civil War, the doctrine of instructions was losing its moral force.

 
C.     Instructions After the Civil War

The Civil War led to an enormously different Constitution, and the doctrine of instructions was one of the casualties.  The Thirteenth Amendment, drafted shortly after President Abraham Lincoln’s reelection, was a radical break with the past constitutional system; it “pulverized bedrock legal principles and practices in more than one-third of the states and imposed new affirmative federal obligations on every state.”7 The balance of power dramatically shifted away from the states.  After President Andrew Johnson vetoed the 1866 Civil Rights Act—claiming that it would “sap and destroy our federative system,” imperil “the rights of the States,” and “centraliz[e]” and “concentrat[e]” “all legislative powers in the National Government”8—Congress responded in dramatic fashion by overriding his veto.  This, indeed, was a different government.

 
D.     A Power Reversal: Federal Regulation of State Elections

Four months after using its newly minted Thirteenth Amendment authority to pass the 1866 Civil Rights Act, Congress used its authority under the Founders’ Constitution to prevent state recalcitrance.  Acting to regulate the time and manner of Senate elections under Article I, Congress decreed that state legislatures, on the day of election, should vote concurrently for a senator:  If the two houses did not agree, then on the next day a joint vote of all state legislators should be conducted.  Writing less than two decades after the Act was passed, prominent Republican Senator James Blaine declared that whereas before the Civil War there was a “reluctance to interfere” with the states, after the War “thoughtful statesmen” believed that “every thing which may be done by either Nation or State may be better and more securely done by the Nation.”9 Little wonder, then, that the practice of states instructing federal legislators on how to vote virtually disappeared after the War.  The roles were reversed:  Now the states were taking instructions from the federal government.

The South’s loss in the Civil War, and the resulting constitutional changes, dealt a fatal blow to the doctrine of instruction; never again was it meaningfully exercised.  Progressive ideas like the direct primary for Senate elections spread quickly through the populist South.  By 1910, more than half of the Union’s senators were directly elected by the people.  One year later, thirty-seven state legislatures, by their actions and their words, had “indicated that they no longer wanted to elect senators.”10 The enactment of the Seventeenth Amendment shortly thereafter eliminated any possibility that instructions would again be effective.

States still commonly “urge” their representatives to vote certain ways, but often these resolutions are viewed as political stunts and are disobeyed at no cost.  More persuasive, perhaps, are letters, phone calls, and emails from constituents, which returns us to Madison’s conception of instructions:  A right of “the people . . . to express and communicate their sentiments and wishes”11 to their representatives.

 
Conclusion

Instructions began as a way to make government more democratic.  The House of Commons in England proudly brandished instructions as an indication of popular support, and colonists in New England governed, in large part, by the use of town meetings.  After adopting the Constitution, towns lost their supreme political status.  Nevertheless, instructions survived the Founding and were reincarnated in state legislatures, which used them to command U.S. senators.  But again, after changes in the structure of government after the Civil War and a corresponding shift in constitutional culture (as senators saw no need to resign to protect their reputation), instructions ultimately faded away.

The history of instructions in America reminds us that the meaning of the text of the Constitution—here the “six years” provision—depends not just on how the text is interpreted by courts, but on how those words are “made flesh” by the actors—including state actors—who are invited by the constitution to play a role in our government.dingbat

 

Acknowledgments:

Copyright © 2010 New York University Law Review.

Christopher Terranova received his J.D. from New York University School of Law in 2009.

This Legal Workshop Editorial is based on the following Student Note: Christopher Terranova, The Constitutional Life of Legislative Instructions in America, 84 N.Y.U. L. REV. 1331 (2009).

  1. THE FEDERALIST NO. 63, at 380-81 (James Madison) (Clinton Rossiter ed., 1961).
  2. U.S. CONST. art. I, § 3, cl. 1.
  3. 1 THOMAS H. BENTON, THIRTY YEARS’ VIEW; OR, A HISTORY OF THE WORKING OF THE AMERICAN GOVERNMENT FOR THIRTY YEARS, FROM 1820 TO 1850, at 528-29 (New York, D. Appleton & Co. 1854).
  4. ANDREW W. YOUNG, THE AMERICAN STATESMAN: A POLITICAL HISTORY 622 & 986 n.I (New York, J.C. Derby 1855) (emphasis omitted).
  5. Clement Eaton, Southern Senators and the Right of Instruction, 1789-1860, 18 J. S. HIST. 303, 316 (1952).
  6. See Maryland Legislature: The Right of Instruction, BALT. SUN, June 12, 1861, at 4 (statement of Mr. Legg).
  7. AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 376 (2005).
  8. 8 JOINT COMM. ON PRINTING, A Compilation of the Messages and Papers of the Presidents, 1789-1897, at 3611 (1807).
  9. 2 JAMES G. BLAINE, TWENTY YEARS OF CONGRESS: FROM LINCOLN TO GARFIELD 160 (Norwich, Conn., The Henry Bill Publ’g Co. 1886).
  10. William H. Riker, The Senate and American Federalism, 49 AM. POL. SCI. REV. 452, 467 (1955).
  11. 1 ANNALS OF CONG. 766 (Joseph Gales ed. 1834).

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