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In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying positive political theory to examine the potential effects of the Seventeenth Amendment while remaining generally agnostic concerning whether the hypothesized decrease in state power represents a sound governing structure.
This Article’s main focus is on examining the institutional weapons available to state legislatures in the pre-Seventeenth Amendment world resulting from state legislatures' influence in Congress. It posits that these weapons could be used to influence outcomes at the Supreme Court and other federal courts if those courts threatened the institutional interests of state legislatures, mainly the durability of state legislative acts. This Article hypothesizes that the Seventeenth Amendment left federal courts free to hold state laws unconstitutional without significant fear that the institutional interests of the federal court system and the interests of individual judges would face retaliation for such holdings.
This Article ends with empirical material that supports the theory that the federal courts have treated the constitutionality of state laws differently before and after the Seventeenth Amendment. Although evidence of causation must be explored further, there is substantial empirical evidence that suggests that the Seventeenth Amendment may have altered the relationship between state legislatures and federal courts.