(dissenting) :
The loud, clear, and supreme command of the Seventeenth Amendment is that Senators are to be “elected by the people * * *.” Though not all change is progress, none of us doubts that this expansion of popular sovereignty was a forward step for a cherished national ideal. But the office of Senator is too important to be left vacant even for brief periods. And so, as a stopgap, in a proviso, the Amendment allows Governors to make “temporary appointments until the people fill the vacancies by election as the legislature may direct.” According to the defendants, with the approval of my respected colleagues on this court, that proviso is entitled to so expansive a role that nearly half the senatorial term may be occupied by an appointee rather than by a choice of the people.
This is an unprecedented extension of the “temporary” appointive power. It is sanctioned today in what appears to be the first judicial scrutiny of the pro*876viso in question. The result, I believe, is an error. It is said to rest, initially, upon what my brethren perceive as “clear language” — namely, the five words (“as the legislature may direct”) at the end of the proviso — but the language had a “clear” meaning of a quite different sort to those who wrote it. Bloating that tag-end phrase, the majority’s construction follows from an almost total disregard of the Amendment’s primary terms and vital sense. Indeed, the majority opinion (like the brief of the State’s Attorney General) does not even quote the positive first paragraph of the Seventeenth Amendment, but sets out only the second paragraph, concerning vacancies, in a kind of artificial isolation which may help to account for what I believe to be a plainly misplaced emphasis.
The majority’s result is also thought to find support in the unconsidered, untested enactments of some state legislatures, none of which appeared, even on their surface, to go as far as New York’s officials now claim a right to go in blocking the popular will. But perhaps the most remarkable thing of all is that the revered principle of government “by the people,” so clearly at the heart of the Seventeenth Amendment, is today subordinated when there is no faint echo of any genuinely countervailing interest, state or federal, to be furthered in the process. I say this in full awareness that the majority opinion refers repeatedly to “substantial state interests” as supposed justification for the way New York’s authorities have dealt with the Seventeenth Amendment. In the end, however, this array of asserted “interests” — ranging, as I shall explain below, from trivial to merely debatable— amounts to nothing that should be thought to “balance” into a 30-month paralysis the sovereignty of the people proclaimed by the Amendment.
I.
The most powerful, and probably sufficient, arguments against defendants’ position are found in the words of the Seventeenth Amendment, in sound and familiar guides to their construction, in the arrangement of those words, and in their constitutional setting, which includes, of course, elementary principles of representative government familiar to all of us. Postponing those central subjects, I note that useful light and perspective are afforded by referring first to the pertinent provisions of the Constitution as they were originally written and as they stood just prior to the changes wrought by the Seventeenth Amendment.
Article I, section 3, clause 1, provided that the Senators from each State were to be “chosen by the legislature thereof * * The next succeeding clause, in the portion most pertinent here, said:
“if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.”
One or two features of that language and its setting are notable for our purposes :
(1) The power of executive appointment was to arise only during a recess of the legislature, and appointments under that authority were not to survive the next session of the legislature.
(2) State legislatures as the Founders knew them met annually.1 Thus, an executive appointee to the Senate could practically never have been expected to hold office for more than a year before the primary method of selection, by the legislature, was once again enforced.*8772 And in fact no such appointee up to 1814 ever held office for longer than a year.3 In the years after adoption of the Constitution, however, state legislature came increasingly to meet biennially, resulting in some drift (apparently never tested or debated) away from the original understanding.4
Thus, when the Seventeenth Amendment came to be adopted — substituting choice by the people for choice by the legislature — it had been familiar for well over 100 years that the preferred mode of selection under the Constitution was to be dominant over and confine the interim power of appointment. Our problem may fairly be stated — and in some measurable degree resolved — by asking whether the Amendment can be read to have allowed substantially longer appointments to postpone the will of the people than had been intended to postpone a legislative designation.
Further illumination from the original Constitution is found in its provisions respecting the House of Representatives. Members of the House were, of course, elected “by the people” from the beginning (Article I, section 2, clause 1) for two-year terms. There was no provision for interim executive appointments. Instead, clause 4 of the same section provided, as it still does:
“When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”
Again, it seems useful to note specifically some pertinent thoughts generated by this cognate provision:
(1) Though House terms were never to last more than two years, the state executive was and is directed to (he “shall”) order elections to fill interim vacancies.
(2) The mandatory language of the Seventeenth Amendment, saying the executive “shall issue writs of election to fill such vacancies,” duplicates the language applicable from the beginning to the House.
(3) Neither the governor nor the people are ever in “recess,” and it appears that no need was perceived to have recess appointments during the presumably brief period required to fill the vacancy by popular election.
(4) Since each state was to have only two Senators, and each was to represent the State as a whole, a Senate vacancy would in most cases effect a greater proportionate loss of representation than would a vacancy in the House. See 2 Farrand, The Records of the Federal Constitution of 1787 at 231 (Madison’s notes) and 242 (King’s notes) (rev.ed. 1966). Cf. H.R.Rep. No. 88, 56th Cong., 1st Sess. 4-5 (1900). Accordingly, by providing for executive appointments, the framers undertook to ensure that there would be no Senate vacancies even during the state legislative recesses of less than a year.
*878Apart from the details, the most striking aspect of the provisions respecting the House was that vacancies which could never have lasted for over two years were to be filled by popular election. The obvious, and obviously workable, premise was that effective elections could be organized and completed with sufficient speed so that it would be worthwhile to fill such relatively brief gaps in this way.
Both the original provision respecting temporary appointments for Senate vacancies and the House provision for elections to fill vacancies were combined in significant fashion when the Seventeenth Amendment was drafted. The constitutional language relating to the House was carried over without change in its mandate requiring the ordering of elections by the state executive. The original language relating to the Senate— and providing, as we have seen, for vacancies between the annual meetings of the original state legislatures — was likewise adapted to the new scheme of popular elections. The amended draft, ultimately to become the Seventeenth Amendment, was offered by Senator Bristow. Speaking with authority as author of the language in question, and as a key proponent of the Amendment, Senator Bristow supplied a cogent, squarely apposite, and never questioned account of the drafting enterprise. His words, described by my senior colleagues as “one brief reference to the vacancy provision * * * [which] supports plaintiffs’ position in this case,” bear reproduction here:
“The only other change that is proposed to be made in the Constitution as it is now is a provision for the filling of vacancies. The Constitution as it now reads, referring to vacancies in the Senate, says:
‘And if vacancies happen by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.’
“Instead of that, I provide the following :
‘When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.’
“Which is exactly the language used in providing for the filling of vacancies which occur in the House of Representatives, with the exception that the word ‘of’ is used in the first line for the word ‘from,’ which, however, makes no material difference.
“Then my substitute provides that—
‘The legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.’
“That is practically the same provision which now exists in the case of such a vacancy. The governor of the State may appoint a Senator until the legislature elects. My amendment provides that the legislature may empower the governor of the State to appoint a Senator to fill a vacancy until the election occurs, and he is directed by this amendment to ‘issue writs of election to fill such vacancies.’
“That is, I use exactly the same language in directing the governor to call special elections for the election of Senators to fill vacancies that is used in the Constitution in directing him to issue writs of election to fill vacancies in the House of Representatives.” 47 Cong.Rec. 1482-83 (1911).
That “one brief reference” does not stand alone. Like the final version of the Amendment, its precursors characteristically took from the Constitution the words relating to House vacancies (in Article I, section 2, clause 4) which instruct the state executive to “issue Writs of Election to fill such Vacancies.” See, e. g., H.Res. 90, H.R.Rep. No. 368, 52d Cong., 1st Sess. 1 (1892); H.Res. 20, H.R.Rep. No. 944, 53d Cong., 2d Sess. 1 (1894); H.J.Res. 28, H.R.Rep. No. 88, 56th Cong., 1st Sess., pt. 2, p. 2 *879(1900). Then, adapting the provision in Article I, section 3, clause 2, for “temporary appointments” between sessions of the state legislature, the proposed versions provided for such appointments until the next general election for “members of the House of Representatives in Congress” 5 or merely until “the time of the next general election.” 6
Of greatest interest, however, is the language sponsored and explained in 1892 by Representative Henry St. George Tucker, who proposed an amendment for the popular election of Senators with a vacancy provision identical to the ultimately ratified text, except for the unexplained omission of a comma in the latter.’7 Explaining the proposed language, Congressman Tucker’s Report, H.R.Rep. No. 368, 52d Cong., 1st Sess. 4-5 (1892), said:
“Where vacancies occur the executive of the State shall direct writs to issue for holding the election by the people to fill the vacancies; or, by law, the legislature may empower the executive to fill the same temporarily until an election can be had.
“Under this clause the governor must order an election to fill the vacancy that has occurred. This preserves the principle of election by the people. In some States, however, in which there are annual elections, this would be a hardship, for the vacancy would in most cases not be of long duration, and to add another State election would be imposing an unnecessary expense on the people, so that the proviso was thought to be wise by which the governor may be empowered to fill the vacancy ‘until the people fill the vacancy by election, as the legislature may direct.’
“Under this provision in a State where there are biennial elections the legislature might direct that if a vacancy occurred within a year [or any other period it might fix] after the election, the vacancy should be filled by an election by the people; but if the vacancy occurred more than a year after the election the vacancy should be filled by executive appointment. This optional feature in the filling of vacancies was as far as your committee deemed it prudent to go in this direction.”
That predecessor explanation, undoubtedly well known to the later legislative leaders who copied the Tucker proposal with which it went,8 was a clearly sensible and apt description of what the language was meant to accomplish. No other or different account was given for the substantially identical language later passed and ratified. Without pretending to use jeweler’s scales, we must surely acknowledge that some weight attaches to the quoted words. And this item, like many others, is opposed to defendants’ position.
It fits perfectly with the language and surroundings of the vacancy provision to say, as Congressman Tucker did, that the state legislature was authorized to “empower the executive to fill the same temporarily until an election can be had.” Not, as defendants argue, until the end of any time short of six years which the state legislature might choose to deem “temporary.” More specifically, Mr. Tucker, properly emphasizing the controlling “principle of election by the people,” but yielding to the countervailing “expense on the people” of repeated elections in a single year, explained the “optional feature” as permitting appoint*880ments for no more than a year. And that, of course, recalled and adapted the original understanding — confining the appointive power as narrowly against the people as it had been confined against the state legislature.
Other items of pertinent history point in the same direction. Among the Founders themselves, the device of gubernatorial appointment was deprecated as a somewhat dubious expedient; there was skepticism as to whether “executives might be safely trusted” with such power, which, one member observed, would remove “the appointment too far from the people * * Such doubts appear to have been overridden only “in order to prevent inconvenient chasms in the Senate.” 2 Farrand, The Records of the Federal Convention of 1787 at 231 (Madison’s Notes) (rev. ed. 1966).
In the event, as we know, balancing legislative power against the executive, the Founders apparently deemed it tolerable to accept appointments likely to last less than a year precisely because they were to be effective only “for so short a time.” Ibid.
Preserving this narrow view of the appointing power, the Senate itself, in the years before the passage of the Seventeenth Amendment, consistently refused to seat an appointee of the governor if a state legislative term intervened between the occurrence of the vacancy and the appointment, or if the state legislature convened after the appointment and failed to elect. 1 Haynes, The Senate of the United States 161-63 (1960); Senate Election, Expulsion and Censure Cases from 1789 to 1960, S. Doc. No. 71, 87th Cong., 2d Sess. 2, 7, 19, 20 (1962).
While the documentation is by no means conclusive, there is substantial evidence to indicate that those who pressed for the Seventeenth Amendment were familiar with that history and that attitude. Thus, in reports recommending close predecessor counterparts of what became the Amendment, Congressman Corliss, in 1900 and 1902, observed:
“Never in the history of the Senate, it can be creditably said, has that body seated a person seeking admission by appointment from the governor after the legislature of the state had failed to elect.” H.R.Rep. No. 88, 56th Cong., 1st Sess. 5 (1900).9
The same reports reflected a grudging and narrowly confined view of the power to be given the Governor under the new provisions for popular elections. They observed that in the existing scheme of legislative designation of Senators,
“ ‘the governor of a State and his friends, by cabal, intrigue, and maneuver may so arrange that the legislature will decide not to elect, or would fail to elect, in order that the governor might gather to himself the power to fill the vacancy.’ ” H.R.Rep. No. 88, supra at 6; H.R.Rep. No. 125, supra at 6.
They expressed a determination to thwart expansions of the gubernatorial power over vacancies and to make it “impossible to defeat the will of the people * *
Ibid.
While the quoted words were written in 1900, and again in 1902, they reflected sentiments that appear to have remained active in the final stages leading to the Seventeenth Amendment. Those earlier reports were cited in the report of a decade later which brought the amending enterprise to fruition. See S.Rep. No. 961, 61st Cong. 3d Sess. 12, 13 (1911), which cited the above reports, and the substance of which was in turn copied in H.R.Rep. No. 2, 62d Cong., 1st Sess. 1 (1911). What may be far more significant, the language carried over and enacted from drafts many years old is exactly consistent both with the quoted explanations and the revealing history of senatorial appointments prior to the Seventeenth Amendment.
The historical materials I have mentioned are of special interest when it is *881agreed, as it must be, that the Constitution supplies no arithmetical or dictionary solution for our problem. It seems clear, notwithstanding the extreme contrary view to which the logic of defendants’ position has somehow driven them, that the provision in the Seventeenth Amendment for “temporary appointments,” pending the preferred course of choice by popular election, could not faithfully be read to allow appointments for anything approaching the full six years in the case of a vacancy occurring early in the term.10 Given that premise (upon which the three members of this court are agreed), the need is for a constitutional judgment, having regard to the context and paramount purpose of the text, declaring the point (or at least the closely defined “neighborhood”) where the line limiting “temporary” must be drawn. And so it is pertinent, if not in itself decisive, that the long pre-existing environment in which the Amendment was placed (1) had made familiar a pattern of executive appointments in the Senate averaging well under a year, (2) had been constructed with such a time limitation clearly in view, and (3) included a provision for special elections to fill House vacancies for unexpired terms inevitably shorter than two years in duration.
II.
I arrive, finally, at what is center stage in this case, the text of the Seventeenth Amendment. The two permanently operative paragraphs read as follows:
“The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”11
The vital substance of the change this Amendment wrought was its provision that the Senators of a State should be “elected by the people thereof * * Where the occasion arises to say what it is about, capturing its essence, we are likely to observe that “when Senators are chosen, the Seventeenth Amendment states the choice must be made ‘by the people.’ ” Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 809, 9 L.Ed.2d 821 (1963). The Amendment marked a new and higher stage in the unfolding “concept of ‘we the people’ under the Constitution * * * ” Id. at 379-380, 83 S.Ct. at 808. It was tendered by the Congress for ratification after the pressure for such an expansion of popular sovereignty had mounted to the point of irresistibility. 1 Haynes, The Senate of the United States 81-106 (1960); S.Rep. No. 961, 61st Cong., 3d Sess. 14-15 (1911).
It is vital to dwell upon and to apprehend fully that this broadening by the Seventeenth Amendment of the area for “the exercise by the people of their choice,” United States v. Classic, 313 U.S. 299, 317, 61 S.Ct. 1031, 1038, 85 L.Ed. 1368 (1941), implements one of the enduring and “great purposes which were intended to be achieved by the Constitution as a continuing instrument of government.” Id. at 316, 61 S.Ct. at *8821038.12 “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964); see also Reynolds v. Sims, 377 U.S. 533, 555, 561-562 (1964). And so where this kind of elemental right is expanded, it is important to keep in sharp focus that it is the right which is “of the essence” and that “restrictions” or qualifications fall naturally into a straitened and subordinate place. See Reynolds v. Sims, 377 U.S. 533, 555, 561-562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). We should be guided by this as a pervasive axiom in the study of the problem before us.
Following the primary mandate for popular election in its first paragraph, the second paragraph of the Amendment begins with the same major and preferred procedure as the means of filling vacancies, namely, by “writs of election * * *.” It is only thereafter that the expedient here in question is permitted, as a proviso, in the authorization saying “That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” The two clauses together end as they begin, with the reasserted power of “the people * * * by election” to terminate the temporary appointment and install their choice.
So we have in sum a six-year term to be filled by the people; vacancies to be similarly filled; and a power to make “temporary appointments” only until state officials, sworn to obey the Federal Constitution, can make suitable arrangements for the popular will to be expressed. It is, as has been acknowledged, not possible to find in the text alone an explicit prohibition against a “temporary appointment” extending for almost half the six-year term. What is less possible, however, is to accept that the words, and the order of words, comprising the Seventeenth Amendment can tolerably be read to allow such a result.
Undertaking, as we must, to expound a Constitution, we could not readily find complete answers in interpretative “can*883ons” any more than in the text alone. But a pertinent guide to construction helps to explicate and reinforce what follows from weighing the relative values at stake in the case. New York’s Election Law § 296 would have to be justified, if it could be, in a proviso — the kind of narrow, incidental, restricted item of legislative grammar which is always presumptively entitled only to a strict construction. Piedmont & Northern Ry. Co. v. Interstate Commerce Comm., 286 U.S. 299, 311-312, 52 S.Ct. 541, 76 L.Ed. 1115 (1932); United States v. McElvain, 272 U.S. 633, 638-639, 47 S.Ct. 219, 71 L.Ed. 451 (1926); Ryan v. Carter, 93 U.S. 78, 83-84, 23 L.Ed. 807 (1876); Dollar Savings Bank v. United States, 19 Wall. 227, 86 U.S. 227, 235-236, 22 L.Ed. 80 (1873); United States v. Dickson, 15 Pet. 141, 40 U.S. 141, 163-165, 10 L.Ed. 689 (1841). The interim function of the appointing power was thus expressed in the traditional form suited to its subordinate status.
Another guide to construction is even more specifically and substantively pertinent. Long before the passage of the Seventeenth Amendment, the state courts had repeatedly interpreted their constitutional and statutory provisions governing temporary appointments to elective offices to permit an appointee to remain in office “only until the people who elected his predecessor have the first opportunity to fill the office with a person of their own choice * * State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 P. 94, 95-96 (1912). See also, e. g., People ex rel. Baird v. Tilton, 37 Cal. 614, 621 (1869); State ex rel. Weeks v. Gamble, 13 Fla. 9, 14-15, 16 (1870); McCreary v. Williams, 153 Ky. 49, 52-53, 154 S.W. 417, 419-420 (1913); Attorney General ex rel. Lawrence v. Trombly, 89 Mich. 50, 56, 57, 50 N.W. 744, 746, 747 (1891); State ex rel. Smallwood v. Windom, 131 Minn. 401, 155 N.W. 629, 632 (1915); State ex inf. Barrett ex rel. Shumard v. McClure, 299 Mo. 688, 253 S.W. 743, 744 (1923); State ex rel. Castle v. Schroeder, 79 Neb. 759, 760-761, 113 N.W. 192, 193 (1907); People ex rel. Kehoe v. Fitchie, 76 Hun. 80, 28 N.Y.S. 600 (2d Dep’t 1894); Rodwell v. Rowland, 137 N.C. 617, 623, 50 S.E. 319, 321 (1905); State ex rel. Harsha v. Troxel, 125 Ohio St. 235, 181 N.E. 16, 17 (1932); State ex rel. Whitney v. Johns, 3 Or. 533, 535 (1869); Commonwealth ex rel. Broom v. Hanley, 9 Pa. 513, 519 (1848); State ex rel. Rearick v. Board of Com’rs of Lyman County, 34 S.D. 256, 145 N.W. 548 (1914); 132 A.L.R. 574, 576 (1941) (citing cases). Cf. State ex rel. Lanier v. Hall, 74 N.D. 426, 23 N.W.2d 44, 48 (1945).
Even on a rather general approach to problems of construction we should be disposed to find the same premise in the Seventeenth Amendment- — upon the sound presumption “favoring the retention of long-established and familiar principles * * Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952); S. & E.C. v. Capital Gains Bureau, 375 U.S. 180, 194-195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963); Ex Parte Grossman, 267 U.S. 87, 108-109, 45 S.Ct. 332, 69 L.Ed. 527 (1925). But there is far more compelling and focused pressure behind such a conclusion. What the line of state cases reflects is a unified body of axioms for representative government — all leading to the stand that “the emergency of the public business” is “the only excuse for the appointment of any officer made elective under the law * * Todd v. Johnson, 99 Ky. 548, 36 S.W. 987, 989 (1896). That position, required by “general principles of democracy,” State ex rel. Sullivan v. Moore, 49 Ariz. 51, 64 P.2d 809, 816 (1937), is overwhelmingly more significant than defendants’ resort to the dictionary for definitions of “temporary.”
An indication of a similar sort is found in the Constitution of New York State itself, which provides that an appointee filling a vacancy in an elective office may serve no more than approximately a year — or, to be absolutely precise, a conceivable maximum of just un*884der fourteen months.13 This applies, defendants remind us, only to state offices, and they are certainly right about that. What is less clearly right is the suggestion that the New York constitutional provision is therefore of no moment for our problem. It is at a minimum a further illustration and confirmation of how the electoral power of the people should be weighed against an executive power to appoint where the overall design (in New York or elsewhere) is to be a “republican form of government.”
III.
The majority decision for defendants rests upon three main grounds: (1) “clear language” found in the Seventeenth Amendment; (2) “contemporaneous” and later “constructions” of the Amendment in the form of unexplained and untested state statutes; and (3) “substantial state interests” said by the court to underlie N.Y. Election Law § 296. Having brooded respectfully over these things, I am forced to say they seem, singly and collectively, quite insufficient to validate the postponement for 2% years of the popular election required by the Seventeenth Amendment.
1. The textual argument is stated firmly, but not dwelt upon, in the majority opinion. It need not be labored in this dissent.
The Seventeenth Amendment used “clear language,” the majority says, in the five words at the end of the vacancy proviso, italicized here:
“That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”
Rejecting plaintiffs’ “subtle reading” for a more “natural reading,” the majority finds in these words “some reasonable measure of discretion” supposedly ample to encompass what New York has done.
However, as the majority notes elsewhere, the “clear” meaning of the language to the man who presented it — the meaning he announced to the Senate which passed it — supports plaintiffs rather than defendants. Likewise, an identical predecessor was explained by its author contrary to the majority’s interpretation. Far from answering our question, we only state it, acceptably all around, when we speak of a “reasonable discretion” left to the state legislatures. The majority’s Tables and Appendices, enlisting so unlikely a body of authority on the Federal Constitution as unannotated state statutes, could hardly be thought relevant if the words “as the legislature may direct” went very far toward a solution.
2. I come to the “contemporaneous interpretations” in the form of state statutes by which the majority has been “strongly influenced.” There are many considerations, in my view, which should have served to weaken or dissipate the influence of this argument. I outline these thoughts in roughly ascending order of importance.
For one thing, these so-called “interpretations” consist only of the bare texts of various (and varying)14 state statutes *885which were never tested or explained in any way that would endow them with reliable meaning. . It reveals no privileged matter to say that in our conferences together we have found ourselves snarled in repeated errors and uncertainties when we debated these sparse, unfamiliar, unconstrued materials. Where patent issues of constitutional law were likely to be stirred whenever the limits were tested — but where the time for testing never came until now — we should hardly accept as a considered gloss upon the United States Constitution “the dead words of the written text [s]15 of diverse state statutes.
Even taking those texts by themselves, we find only five states whose statutes passed between 1913 and 1915 would seem literally to have allowed “temporary appointments” extending for more than two years.16 And it is interesting to recall that New York was clearly outside this category; until 1951 its statutes would have required an election of Senator Kennedy’s successor within less than five months after his death, on November 5, 1968.
Going slightly beyond the state statutes to actual experience, we find a total
of 156 gubernatorial appointments to the Senate in the years from 1913 through the beginning of 1967.17 Of these, 109 (70%) ran for no more than a year; 128 (82%) for no more than 18 months; and 154 (98.7%) for no more than two years.18 Measuring the period from inception of the vacancy to end of appointment (corresponding to the period of just under 30 months from Senator Kennedy’s death on June 6, 1968, to the end of Senator Goodell’s term on November 30, 1970, as announced by Governor Rockefeller), 106 (68%) of the recorded appointments would fall into the category of no longer than a year; 124 (80%) no longer than 18 months; and 152 (97%) no longer than two years.19 In short the actual experience of temporary appointments in the 55 years since the Seventeenth Amendment became effective reveals not a single case of an asserted power to appoint as broad as we have here, and only a minuscule number of approaches to this extreme.
That experience may serve as partial explanation why neither counsel nor judges have found square precedents to guide us.20 But the important point *886now is that the so-called “contemporaneous interpretations” turn out to be untested and unreliable props for what is in fact a novel position in this case.
The absence of judicial or other contests over those state statutes is more than a negative generality; it is, in our context, a factor of potentially critical significance. For, as we have mentioned earlier, there is an old and salutary presumption favoring compression of appointive terms in elective offices. While New York’s law officers now treat their State’s constitutional embodiment of this principle as a protector of popular sovereignty only for state offices, we may suppose that other state officials and state courts might have applied the same bedrock doctrine to the Senate of the United States under the Seventeenth Amendment. And whether they would have or not, this first federal court to face the question should not fail to do so.
Moving onward, we come to some important principles and recent precedents impairing the supposed vigor of state statute books as authorities on Federal Constitutional Law. While the majority speaks of “contemporaneous interpretations” as the essence of this point, it bears emphasis that the great bulk of the statutes supposedly favoring defendants (like New York’s own) post-date by long periods the adoption of the Seventeenth Amendment. We are instructed, on the soundest grounds, that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960); Waterman S.S. Corp. v. United States, 381 U.S. 252, 268-269, 85 S.Ct. 1389, 14 L.Ed.2d 370 (1965). Consider by comparison how utterly useless are later state enactments, by shifting memberships, with no slight evidence of constitutional questions actually faced, as indices to the meaning and intent of the varied “authors” of a federal constitutional amendment.21
*887In any event, far clearer, and more impressively “contemporaneous,” assertions of power by state legislatures have fallen when they could not be squared with what the Federal Constitution was found compellingly to mean. Compare the decision of the Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), with the dissents of Mr. Justice Frankfurter (id. at 310-318, 82 S.Ct. at 760-765) and Mr. Justice Harlan (id. at 333-334, 82 S.Ct. at 772-773); similarly, see the unavailing dissent in Reynolds v. Sims, 377 U.S. 533, 602-608, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); and see Brown v. Board of Education, 347 U.S. 483, 489, 74 S.Ct. 686, 98 L.Ed. 873 (1954), finding “[a]t best, * * * inconclusive” a history which included a showing that a majority of the States ratifying the Fourteenth Amendment had established segregated schools at the time of ratification or shortly thereafter, and that, in most instances, these States retained systems of segregated education for substantial numbers of years.22 As Baker v. Carr and Reynolds v. Sims recall, a decision invalidating the only state statute actually before us would hardly be the first or most far-reaching determination that one or more States may have been insufficiently izealous to enforce fully the regime of popular sovereignty.
3. Let us talk now of the “state interests” deemed so “substantial” by the majority that they justify a “temporary appointment” which will leave to “the people * * * by election” only the power to fill the last month of the 32 that remained of Senator Kennedy’s term when he was murdered.
As it is appealingly described by the State’s Attorney General, one such supposedly weighty “interest” emerges from this proposition: “The selection of a candidate in a primary election and the election of the Senator at a general election in either a gubernatorial or presidential [i. e., even-numbered] year insures the greatest numerical participation of voters in the selection of the Senator.” 23 The troubles with the sentence are;
(1) When § 296 was enacted in its present form (N.Y.Laws 1951, ch. 257), there was no direct primary election for Senator. Such primaries, still somewhat restricted in nature, were not created until 1967. Laws 1967, ch. 716, § 2, effective January 1, 1968.24 So all the talk in defendants’ brief and the majority opinion extolling the virtues of primaries has nothing to do with the case because this could not conceivably have been any supposed part of the unannounced “interests” leading to the 1951 enactment before us.
(2) The asserted striving for “greatest numerical participation of voters” results, in the concrete (and only) cases before us, in (a) no participation by any voters, and (b) the selection of a Republican appointee to complete well over two years of a term to which a Democrat had been elected by the people.25
*888Counsel for defendants have also told us (and the majority embraces this) that there was a “concensus of those in the state that conducting a statewide election was too expensive a proposition, and therefore as the consensus of the political parties the biennial provision was put into Election Law 296.” We should not be finicky about things like hearsay in a case of this kind. But we are entitled (or, probably, required) to know that the location of a “consensus” is sometimes an elusive task. It must be observed, moreover, that the asserted expense is nowhere particularized or documented beyond the generality just quoted. And it is worth noting again in this connection that New York’s own Constitution (supra note 13), expensively or not, forbids the filling of state elective offices by appointments of more than approximately a year’s duration.
This does not mean, of course,- that the question of expense is immaterial. It means only that the subject must be kept in proportion. It is one thing to say “expense” and feel that this goes some distance to justify an extravagant postponement, for 2% years, of a popular election. It is another, far more useful, far more pertinent thing to recall that Congressman Tucker, author of an identical predecessor to the provision we are construing, considered expense and deemed it a sufficient concern to permit the States, along traditional lines, to decide against the holding of more than one election in a single year.
Times have changed since 1892, and since 1913, but not in any way that makes money a more legitimate counterweight today against the value of popular elections. We are more affluent. Campaigning costs more. The problem of campaign expenses is real and troublesome. The problem has generated many proposed solutions, but rarely, if ever, the idea that for this reason interim appointments, postponing popular elections, should be for longer periods.26 It is not jingoistic or inapposite, considering our subject, to mention how sternly this century is testing our professed ideals. It may be supposed, therefore, that a people spending millions for jingles about toothpaste will not need to sacrifice or shrink the principle enshrined in the Seventeenth Amendment because it costs money.
To summarize it, my view about the “substantial state interests” stressed by the majority is that they are at least in some degree exaggerated; that the supposed benefits sought by the State in Election Law § 296 are too remote and unsubstantial to warrant the resulting denial of the popular will; and that the bulk of the asserted objectives (selection of candidates at a primary, handling of campaign expenses) can be achieved without such impairment of so dear a constitutional value. Cf. Harman v. Forssenius, 380 U.S. 528, 543, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). This would be true if we were “balancing” the interests now in deciding how to write the Seventeenth Amendment. It is more clearly true, I submit, when we attend to the indicia of the meaning intended by those who wrote and adopted it for us over half a century ago.
IV.
The majority, sustaining a - delay of 2% years, is not required to decide, and does not decide, how much longer even *889than that the State might validly postpone a popular election. Concluding in dissent that 31 months is too long, I should and do express a view indicating how much is not too long. The answer, I have confessed already, cannot be mathematical, or mathematically demonstrated. But I conclude from the materials reviewed above that there is at least a powerful presumption against an appointment for over a year — i. e., for longer than the period of postponed legislative selection under the original Article I, section 3, clause 2. I would require the most impressive kind of justification for any asserted power to appoint for more than a year. I conclude specifically that the period of substantially over two years in question here is patently excessive.
While this conclusion would require a determination that a state legislative provision must be set aside in deference to the Federal Constitution, this surely would rank among the least exacerbated instances of such friction. Of course, the Seventeenth Amendment would have to prevail even if there were plausible reasons to wish otherwise. But it would be comforting that there is no occasion here for so much as sentimental regret. On plaintiffs’ side is a claim to the right of popular election, “rank[ed] among our most precious freedoms.” Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). On the other side is a claim of executive power which, even in the State’s hierarchy of political powers, occupies the kind of subordinate role we would here assign it. There is, as I have sought to show, no substantial states interest— surely no “compelling interest,” id. at 31, 89 S.Ct. 5 — to enhance whatever doubts I should in candor acknowledge regarding a conclusion which is neither objectively demonstrable nor acceptable to my senior colleagues.
Finally, because the case appears destined for the Supreme Court, I complete this dissent with a few words about the defense suggestion that the Governor is not subject to an order in the nature of mandamus.27 If we reached the suggestion, all three of us have surmised with confidence that we would reject it. “The applicable principle is that, where state officials, purporting to act under state authority, invade rights secured by the Federal Constitution, they are subject to the process of the federal courts in order that the persons injured may have appropriate relief. * * * The Governor of the state, in this respect, is in no different position from that of other state officials.” Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375 (1932). Nothing in the New York cases defendants cite limits the scope of “appropriate relief” to forms outside the area traditionally called “mandamus.”
But it would prove unnecessary to consider this subject at all — including the debatable assumption that the pertinent writ might resemble mandamus. As we could have predicted, the Governor has given his assurance, through his Solicitor General, that a final judgment in this case declaring the constitutional rule will be followed by him and the other responsible officials of the State. There would be no need, therefore, to go beyond the plaintiffs’ prayer for declaratory relief.
I would grant the prayer and adjudge that N.Y. Election Law § 296, together with defendants’ action under it, must be declared invalid under the Seventeenth Amendment.
. See A Collection of the Constitutions of the Thirteen United States of North-American, published by Order of Congress (1783); The American’s Guide (1839) (compilation of state constitutions). See generally, Dealey, Growth of American State Constitutions (1915); Morey, The First State Constitutions, IV Annals of the American Academy of Political and Social Science 201, 220 (1893) ; Nevins, American States During and After the Revolution 1775-1789 at 165-68 (1924).
. Even if the legislature waited until the end of its session to choose a successor, the appointee, having been chosen after the end of the preceding session, would in all likelihood have served less than a year.
. The first departure was the appointment of Senator Jesse Wharton of Tennessee to a term from March 17, 1814 to October 10, 1815. Senate Manual, S.Doc. No. 1., 90th Cong., 1st Sess. 715 (1987) (hereinafter “Senate Manual”).
. As the majority notes, there were 179 appointees who served between 1789 and 1913, when the Seventeenth Amendment became effective. Of these 32 served for over a year, and only 17 served for over 14 months. The longest appointment was that of Senator Robert Wilson of Missouri who served for 22 months, from January 17, 1862, to November 13, 1863. Senate Manual, supra at 694.
. S.Rep. No. 794, 52d Cong., 1st Sess. 2 (1892); S.Rep. No. 530, 54th Cong., 1st Sess. 11 (1896); H.R.Rep. No. 88, 56th Cong., 1st Sess., pt. 2, p. 2 (1900).
. S.Rep. No. 916, 53d Cong., 3d Sess. 1 (1895); H.R.Rep. No. 994, 54th Cong., 1st Sess. 1 (1896).
. See majority opinion note 7 and text. The lost comma has been a subject of little discussion in either the briefs or the prevailing opinion. I follow those tasteful examples.
. Representative Tucker’s authorship was expressly acknowledged on the Senate floor during the debates leading directly to the Seventeenth Amendment. 46 Cong.Rec. 2940 (1911).
. H.R.Rep. No. 125, 57th Cong., 1st Sess. 5 (1902) repeats the quoted words verbatim, except for a change in the eleventh word to “credibly.”
. Invoking the dictionary as a prime aid, and citing an array of cases from remote legal universes, defendants say (Memorandum, p. 12) “it is apparent that an appointment for two years and six months would be a ‘temporary appointment’ since it is less than a full six year term.”
. The third and final paragraph, serving a temporary purpose long since completed, says:
“This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”
. S.Rep. No. 961, submitted by Senator Borah, one of those in the vanguard fighting for the Amendment, reported favorably on S.J. Res. 134, an immediate predecessor and close counterpart of the Resolution passed in the following year. This document described in specific and cogent terms the process of “maintaining” the fundamental principles of the Constitution by the kind of adaptive change the Seventeenth Amendment came to effect (id. pp. 3 — 4):
“It is proper to take into consideration the condition of affairs with reference to popular voting at the time of the formation of the Constitution. Very few of the States gave to their citizens the unqualified right to vote and very few allowed the people tlie right to elect any considerable number of officials. Most of the offices in the State were filled by appointment, some by the legislature, some by the chief executive. For a number of years, the legislature, had been practically a gathering of the people, that is to say, the body through which they acted in sundry matters not strictly legislative. A vast change has taken place since then. At the present time practically all of the officers from precinct officer to the President are elected, with certain exceptions as to the judiciary. The President, in view of the function now performed by the electors, is in reality elected by popular vote. Manhood suffrage has everywhere become general and practically unqualified. “We do not cite these historic facts for the purpose of in any way seeking to impeach or criticize the remarkable men who framed our Constitution. In the science of government none have ever excelled the men who gathered at Philadelphia for the great task of 1787. The general principles of government which they announced and incorporated into the charter few indeed would challenge. But in the mechanism or machinery by which those general principles are applied from decade to decade, or century to century, there may arise the necessity of change. The economic, social, and industrial changes which have taken place since the present method of electing Senators was established seem to require a reconsideration of the method; not for the purpose of changing the fundamental principles of our Government, but for the purpose of maintaining the very principles which the fathers sought to establish.”
. “[I]n case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.” N.Y.Const. Art. XIII, § 3. The “political year” commences in New York on January 1. Id. § 4. In an effort at what may be excessive precision, I have indicated that the quoted provisions might permit an appointee to serve for nearly fourteen months. This would be the case where a vacancy occurred immediately following an annual November election, permitting the appointee, if he were designated promptly, to serve until a year after the succeeding January 1.
. The majority notes the variations. While the main opinion refers often to a “clear consensus” discerned in the state legislation, it also says “the wide variation” among the state statutes “reflects an interpretation of the Amendment which would allow the states a liberal degree of discretion * * *.” ■ I am sure the *885appearance of inconsistency is superficial only, but it does suggest how treacherous and ambiguous a guide to the Federal Constitution is supplied by collections of state statutory texts by themselves, with no illumination in the form of debates, court tests, or other sources of live understanding.
. Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 84 L.Ed. 1254 (1940); see also Bernhardt v. Polygraphic Co., 350 U.S. 198, 209-210, 76 S.Ct. 273, 100 L.Ed. 199 (1956) (Mr. Justice Frankfurter concurring).
. Mich. Public Acts 1915, No. 156, pp. 261, 262; N.M.Laws 1915 J.R. No. 12, p. 172-73; N.C.Laws 1913, ch. 114, p. 206; Ohio Laws 1914, H.B. No. 3, p. 8; Pa.Laws 1913, No. 454, p. 995.
. Senate Manual, supra note 3 at pp. 661-725. In four instances, a vacancy was filled by appointment, the appointee died, and a successor appointee was named. Giving the benefit of any possible doubt to defendants herein, I have in each such instance tacked the appointments together and treated the pair as a single appointment for computing overall length.
. Two appointees served for approximately 25 months. Senator William M. Butler of Massachusetts served by appointment from November 13, 1924, to December 5, 1926. Senate Manual, supra, at 689. Senator Joseph H. Ball of Minnesota was appointed on October 14, 1940, and served until November 17, 1942. Senate Manual, supra, at 691.
. The longest period thus measured was 27 months. The term served by Senator Ball of Minnesota, supra note 18, lasting until November 17, 1942, was for a vacancy which had commenced on August 31, 1940. Senate Manual, p. 691.
. Additional explanation may lie in differing conceptions of the non-justiciable “political question.” It may be observed, however, that while they never come to the point of resolution, objections were in fact raised by interested groups to exercises of power approaching that involved here. Thus, when Senator Henry Cabot Lodge of Massachusetts died *886five days after tlie regular biennial state election and the appointee was to serve from November 13, 1924 to November 2, 1926, the Democrats threatened to seek the repeal of the Massachusetts statute on the ground that the appointment thus permitted was not “temporary.” 1 Haynes, The Senate of the United States 166-67 n. 2 (1960).
. We owe, and cheerfully pay, deference to state legislatures in their proper spheres. This is not a mandate, or even a license, to ignore what everybody, including judges, knows. Sitting as the first level of the judiciary responsible for saying authoritatively what the Federal Constitution means, we are compelled to know how poorly state legislative proceedings are geared for an authoritative share in the task. Deliberation and scholarship, let us admit, do not characterize the frequently hectic activities of these bodies. For references to the well known facts, see, e. g., Keefe, “The Function and Powers of the State Legislatures,” and Walilke, “Organization and Procedure,” in The American Assembly, State Legislatures in American Politics, at 65-68 and 145-48, respectively (Heard ed. 1966); Keefe and Ogul, The American Legislative Process 126-28, 177-78, 191-93, 206-10, 24A-48 (1964). For the proposition that even the national Congress, far superior in this respect, tends usually to leave constitutional questions for the courts, see generally Morgan, Congress and the Constitution (1966).
The point is illustrated by reference to some statistical records, which are the only kind available, relating to the context of the state statute before us. N.Y. Election Law § 296 was passed by the Assembly on March 15, 1951, the next-to-last day of the session. The Assembly on that day considered 124 bills and 10 resolutions. 123 of the bills and all of the resolutions were passed. 99 of the bills were passed with no negative votes. N.Y. Assembly Journal, 174th Sess., vol. 3, pp. 2779-2954 (1951). § 296 was passed by a vote of 85-62. Id. pp. 2918-19. On March 16, the last day of the session, the Senate passed § 296. It was one of 175 bills considered in the Senate on that day, along with 14 resolutions. 173 of the bills and all of the resolutions were passed. 157 of the bills were passed with no negative votes. N.Y. Senate Journal, 174th Sess., vol. 2, pp. 2008-2158 (1951). § 296 was passed by a vote of 38-23. Id., p. 2039. The Govenor approved § 296 on March 24, 1951. He signed 86 bills on that day.
. Appendix to the Supplemental Brief for the United States as Amicus Curiae at 160-393, Brown v. Board of Education, supra.
. Memorandum of Law on Behalf of Defendants, pp. 10-11.
. Earlier, the voters had been empowered to elect delegates to party conventions, which in turn selected Senatorial candidates.
. The majority not only accepts defendants’ theory about even-numbered years, but adds wliat I think is a strange embellishment. Since local elections occur in old-numbered years (as Senate vacancy elections could and did until 1951), we are told that “[t]he legislature might reasonably have concluded that local elections should be preserved from the more party-oriented political currents generated by statewide or national contests.” When we talk about what the State Legislature “might * * * have concluded,” since we have not a single word from a single legislator about what actually went on, the quality of speculation is not cramped. *888But this particular thought seems to me particularly imaginative, extending beyond what the State Attorney General and Solicitor General recreated on behalf of the defendant Governor and Secretary of State.
. Of., e. g., “Financing Political Campaigns,” Hearings before the Senate Committee on Finance on S. 3496, 89th Cong., 2d Sess. (Aug. 18 and 19, 1966); “Political Campaign Financing Proposals,” Hearings before the Senate Committee on Finance, 90th Cong., 1st Sess. (June 1, 2, 6-9, 1967).
. No similar suggestion is made — in fact, it defendant Secretary of State. is expressly disclaimed — with respect to the