Roberts, C. J., dissenting
a referendum vote. The necessity of the amendment to accomplish the purpose of popular election is shown in the adoption of the amendment.”). In fact, as the decades rolled by without an amendment, 28 of the 45 States settled for the next best thing by holding a popular vote on candidates for Senate, then pressuring state legislators into choosing the winner. See, e.g., Abstract of Laws Relating to the Election of United States Senators, S. Doc. No. 393, 59th Cong., 2d Sess. (1907). All agreed that cutting the state legislature out of senatorial selection entirely would require nothing less than to “Strike out” the original words in the Constitution and “insert, ‘elected by the people’ ” in its place. Cong. Globe, 31st Cong., 1st Sess., 88 (1849) (proposal of Sen. Jeremiah Clemens).
Yet that is precisely what the majority does to the Elections Clause today—amending the text not through the process provided by Article V, but by judicial decision. The majority’s revision renders the Seventeenth Amendment an 86-year waste of time, and singles out the Elections Clause as the only one of the Constitution’s seventeen provisions referring to “the Legislature” that departs from the ordinary meaning of the term.
The Commission had no answer to this point. See Tr. of Oral Arg. 42 (Justice Alito: “Is there any other provision where legislature means anything other than the conventional meaning?” Appellee: “I don’t know the answer to that question.”).
The Court’s response is not much better. The majority observes that “the Legislature” of a State may perform different functions under different provisions of the Constitution. Under Article I, §3, for example, “the Legislature” performed an “electoral” function by choosing Senators. The “Legislature” plays a “consenting” function under Article I, §8, and Article IV, §3; a “ratifying” function under Article V; and a “lawmaking” function under the Elections Clause. Ante, at 19, and n. 17. All true. The
