1989]                        AMPLIFYING THE TENTH AMENDMENT                     933

those concerned with the relationship between the states and the federal government. The process itself, however, is unbalanced because of the seventeenth amendment.

In retrospect, the passage of the seventeenth amendment was an extremely important event for the states and for society. Furthermore, its passage led to a fundamental change in the balance of power between the states and the federal government. A review of the reasons for its passage, however, suggests that its passage was inappropriate and that the change in the balance of power was unintended.

THE PASSAGE OF THE SEVENTEENTH AMENDMENT

The original process of selecting senators through the state legislature failed to work consistently.¹⁶² This failure, ultimately, led to the passage of the seventeenth amendment in 1913.¹⁶³ The process to select senators did not work because it followed the same procedure necessary to pass a bill, which required a majority vote of both houses of the state legislature. When selecting senators, however, this requirement frequently led to deadlocks and, as a result, to substantial vacancies in the Senate.¹⁶⁴ For instance, in the First Congress, the State of New York was without representation for three months because of a deadlock.¹⁶⁵ Between the years of 1891 and 1905, forty-five deadlocks created vacancies in the Senate from one to seven vacancies in twenty states.¹⁶⁶ The original process of selecting senators also caused considerable compromise, confusion and interference with the state legislature's service to its state because of the time taken to break deadlocks.¹⁶⁷

Consequently, a few states began to experiment with the idea of popular election of senators. According to one approach, the state would first hold a popular election. Thereafter, the members of the state legislature were required to vote for the winner.¹⁶⁸ The desire to "tinker" with popular election methods reflected a national movement during the eighteenth century which recognized the popular election method as a panacea for fixing political and procedural problems; the U. S. Senate was no exception.¹⁶⁹ When deadlocked elections or senatorial scandals occurred, the demand surged for the popular election of senators.¹⁷⁰ The increased demand for popular election and the ease with which a senator could be selected with popular election led to its increased use among the states. Its success eventually led to the passage of the seventeenth amendment.¹⁷¹

In hindsight, however, some of the worst abuses associated with senatorial elections might have been corrected without taking the election from the

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162. G. HAYNES, THE SENATE OF THE UNITED STATES 81-82 (1938) [hereinafter SENATE].

163. Id.

164. Id.

165. Id. at 86.

166. Id.

167. Id. at 86-95.

168. Id. at 100.

169. G. HAYNES, THE ELECTION OF SENATORS 100-103 (1906) [hereinafter ELECTION],

170. Id. at 107.

171. SENATE, supra note 162, at 96-116.

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