Beyond The Shell And Husk Of History
The history of the seventeenth amendment, and it's implications for current reform proposals.
By; Todd J. Zywicki
http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf
By; Todd J. Zywicki
http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf
The 17th Amendment’s Effect on the Healthcare Vote in the Senate
The 17th Amendment’s Effect on the Healthcare Vote in the Senate
Richard Bradford
The Senate healthcare vote on December 24, 2009 presents an opportunity to examine the effect of the 17th amendment on voting in the Senate. No state, without its consent, shall be deprived of its equal suffrage in the Senate. That is one half of a core principle in the Constitution. The other half of that principle was that senators, two from each state, would be chosen by each state’s legislature. In 1913, this second half was stripped from the Constitution, and the question is whether the first half was effectively nullified at the same time, even though it’s still part of the Constitution.
The 17th Amendment, ratified in 1913, changed the method of choosing senators. Since then, senators have been chosen by popular vote of the people of each state, not by the state legislature. Do the states still have a vote in the Senate, as guaranteed by the Constitution, or have they been deprived of that vote? In the Constitution, “state” means the state government, or more specifically, the state legislature. The people and the state are separate and distinct entities in the Constitution, and were each given separate methods of direct representation in Congress; the people got the House of Representatives, and the states got the Senate. These two different methods of representation are critical to the balance in our federal system. In Federalist Paper No. 62, Madison wrote that “Another advantage accruing from this ingredient in the constitution of the Senate is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of the majority of the people, and then, of a majority of the states.”
On Christmas Eve, 2009, when the vote took place, 24 states were represented by two democratic senators, 14 states by two republican senators, and 12 states had split representation, one democrat and one republican. The vote went strictly down the party line. The 24 “democratic” states produced 48 yes votes. The 14 “republican” states produced 27 no votes (Senator Bunning of Kentucky did not vote). The 12 “split” states produced 12 votes each way, making up the total of 60 yea votes and 39 nay votes. Were the 50 states properly represented by this vote?
If states could express their position, it would be as a unit, as each state came to a unified position, especially on legislation as consequential as healthcare. But 12 split states voted both ways, effectively cancelling out their vote. This statistic alone indicates that those 12 states were not represented at all, much less adequately. It makes no sense to vote yes and no on the same bill. The 17th Amendment made this possible, since senators no longer owe any allegiance to their state legislature.
The 12 split states are Alaska, Florida, Indiana, Iowa, Louisiana, Missouri, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, and South Dakota. Massachusetts has since become a split state with the election of Scott Brown. Eleven of these 12 states have expressed a position legislatively, either by resolution or proposed law. Ten are opposed to the healthcare bill. New Hampshire is the only state to favor the bill, and its legislature passed a resolution urging Congress to pass healthcare. The other state, Nevada, expressed no legislative position that could be found. The Nevada legislature has been out of session since early 2009. But Nevada joined the Florida lawsuit against the healthcare legislation, and that is the best indication available. In addition to Nevada, six other states of the 12 are also plaintiffs in the Florida lawsuit. They are Alaska, Florida, Indiana, Louisiana, Nebraska, and South Dakota. The lawsuit further confirms their position against the healthcare legislation.
Therefore, 11 states were opposed to, and 1 state was in favor of, the healthcare bill. That should have produced 22 no votes and 2 yes votes if the states were properly represented in the Senate. But the vote was actually 12 yes and 12 no. These 12 states have definitely lost their constitutionally guaranteed representation in the Senate.
Continuation from the article by
Richard Bradford
Of special note is that all of these states, except Nevada, have passed strong “10th Amendment” type resolutions reaffirming their state rights and urging congress to stop interfering with state sovereign power to police and regulate their citizens. Five of these states have applied to congress to call a convention to propose a balanced budget amendment, and Missouri has passed a resolution declaring the current process of choosing senators defective, and calling on congress to amend the 17th amendment to have senators chosen by state legislatures.
Moving to the other 38 states, 13 are co-plaintiffs in the Florida suit. Eight of those are each represented by two republicans, all of whom voted against the legislation. Those states are Alabama, Arizona, Georgia, Idaho, Mississippi, South Carolina, Texas and Utah. Research of the legislation in those 8 states reveals strong opposition to the healthcare bill, and it is evident that these 16 senators voted their legislatures’ position. But the remaining 5 states in the suit are represented by two democrats. The legislative records for these reveal that, besides joining the lawsuit, Michigan, North Dakota, and Washington have each proposed a state constitutional amendment to nullify the federal legislation, and Colorado filed a resolution against healthcare. Pennsylvania came down in favor of the legislation, and in a resolution, urged the State Attorney General to withdraw from the lawsuit. That makes 4 of these 5 states whose senators went with their party instead of their state.
But the crown jewel of examples is Virginia. In November, 2009, Virginia began debate on the Healthcare Freedom Act. This law protects Virginia citizens from the federal law, and is the basis for Virginia’s separate lawsuit. Virginia’s State Government position wasn’t just a resolution; it became a state law, passed easily in both houses of the legislature. The legislature’s position, a clear no, was well known before the Senate vote. But Virginia’s Senators, Mark Warner and Jim Webb, both democrats, voted in favor of the legislation. This flagrant disregard of state’s wishes is the most egregious example of the effect of the 17th Amendment on voting in the Senate. Two other votes were almost as bad. The “cornhusker kickback” and the “Louisiana purchase” are the two most infamous examples of the party’s ability to impose its will on Senators Ben Nelson and Mary Landrieu, and to secure their votes against their states’ wishes. Both Louisiana and Nebraska are co-plaintiffs in the Florida lawsuit.
The bottom line is first, that the 12 split states were improperly represented in the Senate, and now with Massachusetts becoming split, 13 states will always be improperly represented, as long as party loyalty is the dominant force in voting. The parties will never allow split representation states to vote as a unit. Second, 21 states are suing to have the federal healthcare law overturned, 20 in the Florida suit, and Virginia by itself. Those 21 states produced 19 votes in favor of the healthcare law. Only two of those 19 yes votes, those by Pennsylvania’s senators, have been found to conform to the state legislature’s wishes. The other 17 went against the position of the state legislatures.
How can these things happen? The answer is undoubtedly because of the 17th amendment. Senators have been cut loose from their state, and are beholden only to their party and the moneyed special interests within their party. The state governments have lost their representation, and have been deprived of their direct vote in the Senate. The 17th Amendment did in fact nullify the entire federalist principle in the constitution. The balance in the federal system established in the constitution is gone.
Richard Bradford
The Senate healthcare vote on December 24, 2009 presents an opportunity to examine the effect of the 17th amendment on voting in the Senate. No state, without its consent, shall be deprived of its equal suffrage in the Senate. That is one half of a core principle in the Constitution. The other half of that principle was that senators, two from each state, would be chosen by each state’s legislature. In 1913, this second half was stripped from the Constitution, and the question is whether the first half was effectively nullified at the same time, even though it’s still part of the Constitution.
The 17th Amendment, ratified in 1913, changed the method of choosing senators. Since then, senators have been chosen by popular vote of the people of each state, not by the state legislature. Do the states still have a vote in the Senate, as guaranteed by the Constitution, or have they been deprived of that vote? In the Constitution, “state” means the state government, or more specifically, the state legislature. The people and the state are separate and distinct entities in the Constitution, and were each given separate methods of direct representation in Congress; the people got the House of Representatives, and the states got the Senate. These two different methods of representation are critical to the balance in our federal system. In Federalist Paper No. 62, Madison wrote that “Another advantage accruing from this ingredient in the constitution of the Senate is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of the majority of the people, and then, of a majority of the states.”
On Christmas Eve, 2009, when the vote took place, 24 states were represented by two democratic senators, 14 states by two republican senators, and 12 states had split representation, one democrat and one republican. The vote went strictly down the party line. The 24 “democratic” states produced 48 yes votes. The 14 “republican” states produced 27 no votes (Senator Bunning of Kentucky did not vote). The 12 “split” states produced 12 votes each way, making up the total of 60 yea votes and 39 nay votes. Were the 50 states properly represented by this vote?
If states could express their position, it would be as a unit, as each state came to a unified position, especially on legislation as consequential as healthcare. But 12 split states voted both ways, effectively cancelling out their vote. This statistic alone indicates that those 12 states were not represented at all, much less adequately. It makes no sense to vote yes and no on the same bill. The 17th Amendment made this possible, since senators no longer owe any allegiance to their state legislature.
The 12 split states are Alaska, Florida, Indiana, Iowa, Louisiana, Missouri, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, and South Dakota. Massachusetts has since become a split state with the election of Scott Brown. Eleven of these 12 states have expressed a position legislatively, either by resolution or proposed law. Ten are opposed to the healthcare bill. New Hampshire is the only state to favor the bill, and its legislature passed a resolution urging Congress to pass healthcare. The other state, Nevada, expressed no legislative position that could be found. The Nevada legislature has been out of session since early 2009. But Nevada joined the Florida lawsuit against the healthcare legislation, and that is the best indication available. In addition to Nevada, six other states of the 12 are also plaintiffs in the Florida lawsuit. They are Alaska, Florida, Indiana, Louisiana, Nebraska, and South Dakota. The lawsuit further confirms their position against the healthcare legislation.
Therefore, 11 states were opposed to, and 1 state was in favor of, the healthcare bill. That should have produced 22 no votes and 2 yes votes if the states were properly represented in the Senate. But the vote was actually 12 yes and 12 no. These 12 states have definitely lost their constitutionally guaranteed representation in the Senate.
Continuation from the article by
Richard Bradford
Of special note is that all of these states, except Nevada, have passed strong “10th Amendment” type resolutions reaffirming their state rights and urging congress to stop interfering with state sovereign power to police and regulate their citizens. Five of these states have applied to congress to call a convention to propose a balanced budget amendment, and Missouri has passed a resolution declaring the current process of choosing senators defective, and calling on congress to amend the 17th amendment to have senators chosen by state legislatures.
Moving to the other 38 states, 13 are co-plaintiffs in the Florida suit. Eight of those are each represented by two republicans, all of whom voted against the legislation. Those states are Alabama, Arizona, Georgia, Idaho, Mississippi, South Carolina, Texas and Utah. Research of the legislation in those 8 states reveals strong opposition to the healthcare bill, and it is evident that these 16 senators voted their legislatures’ position. But the remaining 5 states in the suit are represented by two democrats. The legislative records for these reveal that, besides joining the lawsuit, Michigan, North Dakota, and Washington have each proposed a state constitutional amendment to nullify the federal legislation, and Colorado filed a resolution against healthcare. Pennsylvania came down in favor of the legislation, and in a resolution, urged the State Attorney General to withdraw from the lawsuit. That makes 4 of these 5 states whose senators went with their party instead of their state.
But the crown jewel of examples is Virginia. In November, 2009, Virginia began debate on the Healthcare Freedom Act. This law protects Virginia citizens from the federal law, and is the basis for Virginia’s separate lawsuit. Virginia’s State Government position wasn’t just a resolution; it became a state law, passed easily in both houses of the legislature. The legislature’s position, a clear no, was well known before the Senate vote. But Virginia’s Senators, Mark Warner and Jim Webb, both democrats, voted in favor of the legislation. This flagrant disregard of state’s wishes is the most egregious example of the effect of the 17th Amendment on voting in the Senate. Two other votes were almost as bad. The “cornhusker kickback” and the “Louisiana purchase” are the two most infamous examples of the party’s ability to impose its will on Senators Ben Nelson and Mary Landrieu, and to secure their votes against their states’ wishes. Both Louisiana and Nebraska are co-plaintiffs in the Florida lawsuit.
The bottom line is first, that the 12 split states were improperly represented in the Senate, and now with Massachusetts becoming split, 13 states will always be improperly represented, as long as party loyalty is the dominant force in voting. The parties will never allow split representation states to vote as a unit. Second, 21 states are suing to have the federal healthcare law overturned, 20 in the Florida suit, and Virginia by itself. Those 21 states produced 19 votes in favor of the healthcare law. Only two of those 19 yes votes, those by Pennsylvania’s senators, have been found to conform to the state legislature’s wishes. The other 17 went against the position of the state legislatures.
How can these things happen? The answer is undoubtedly because of the 17th amendment. Senators have been cut loose from their state, and are beholden only to their party and the moneyed special interests within their party. The state governments have lost their representation, and have been deprived of their direct vote in the Senate. The 17th Amendment did in fact nullify the entire federalist principle in the constitution. The balance in the federal system established in the constitution is gone.
17th Amendment Overview – Part 1
The 17th Amendment of the U. S. Constitution was ratified in May, 1913 under President Woodrow Wilson – one of the most Progressive presidents our Country has had. From the 1880’s into the 1920’s, the “Progressive and Socialist movement” grew and included well- known political names like Teddy Roosevelt, Woodrow Wilson, Robert LaFollette, John Dewey and William Jennings Bryan.
One of their main objectives was to convince others that the Constitution and the Declaration of Independence - that promoted “separation of powers”, “individual natural rights of the people” and “checks and balances” -were roadblocks to regulatory and redistributive policy ambitions.
It took 134 years for politicians to come discover and realize the power of their organization (the government in 1779-1913). Sadly, with the 'practice' of politics, the system becomes corrupted and the politicians 'worry' most about party and personal power than serving best the people and the states they represent in the service of good and honest governance.
In the original Constitution, our Founding Fathers gave the state governments a strong voice in national government by requiring the states to select two Senators per state chosen by the STATE legislature. See Article 1, Section 3 of the Constitution.
The Founders’ had the basic belief: when government power is joined and unlimited, it is insensitive to the needs of the governed (the people). They wanted to prevent overreach of the government and distribute the power - deliberately designing a system of checks and balances.
Two Senators residing in their own states - living among their own people - representing and voting the interests of those states. The Founders’ saw the need for national unity - important and necessary - but not more important or supreme - than state sovereignty.
The 17th was also “sold” as one man one vote. It was represented in the public discourse of the time - as a much preferred way of direct voting over the “onerous” method at the state level. Few saw the danger to the sovereignty of the states at the time, so involved were the people in the movement to modern advancement - they little appreciated the wisdom of the past. The generations that had fought for freedom and liberty from oppressive government - were gone and their wisdom and their warnings toward liberty’s constant vigil had been buried with them.
Ironically, the 17th Amendment created the same form of government that our fore-fathers had fought a war of independence to be free from. The 'thief' did not have to 'steal' in the shadows the balance guaranteed in the Constitution...the power was given away with the open hand of forgotten memory and ignorance.
The Constitution is a COMPACT of STATES and the Senate was designed to give each State an EQUAL vote in the Federal Government. This was to protect the States from laws like the UNFUNDED MANDATES that Congress now passes on to the States; if the Senators were the proxies (fiduciaries) of the State Legislature now, would they ever vote to overpower the State Legislatures and local governments?
Before the 17thAmendment, there were cases of political favor and corruption within the state levels of government. The problems ranged from “charges” of bribery to unbreakable deadlocks. There also was an Electoral College tie.
The Progressive and Socialist, as well as the Communist Parties were making their inroads into the political landscape….. Special interests, power-growing political party systems – argued that if you moved the state representation of Senators into the centralized wing, and allowed the people to vote for their Senators, rather than having the state legislatures nominate the senate representatives - the people would think they were more involved because of the popular vote.
How much easier the process of buying the influence of one, rather than effect the many in a legislative body. Divide and conquer has always been an effective strategy. This action empowered the political parties and created the environment ripe for special interests and (lobbyists) who could affect popular elections with incentives and purchased loyalty. The Senate as a body can withhold funding for the states to force compliance. The party in current political power can promote, and effect legislation at the federal level.
Progressive and socialist ideological agendas have been added from the power-grab gained from the ratification of the 14th Amendment, combined with the taxing power of the 16th Amendment, and finally, the voting power that the centralized the inclusion of the Senate [at the federal level in Congress], gives.
These 3 amendments, in combination, have destroyed the original intent and the principles of the Constitution as it was originally written.
It was little debated at the time and its implications to federalism were scarcely considered. The People were presented with the idea that the 17th promoted national unity and would serve as a deterrent to corruption and elitism.
One of their main objectives was to convince others that the Constitution and the Declaration of Independence - that promoted “separation of powers”, “individual natural rights of the people” and “checks and balances” -were roadblocks to regulatory and redistributive policy ambitions.
It took 134 years for politicians to come discover and realize the power of their organization (the government in 1779-1913). Sadly, with the 'practice' of politics, the system becomes corrupted and the politicians 'worry' most about party and personal power than serving best the people and the states they represent in the service of good and honest governance.
In the original Constitution, our Founding Fathers gave the state governments a strong voice in national government by requiring the states to select two Senators per state chosen by the STATE legislature. See Article 1, Section 3 of the Constitution.
The Founders’ had the basic belief: when government power is joined and unlimited, it is insensitive to the needs of the governed (the people). They wanted to prevent overreach of the government and distribute the power - deliberately designing a system of checks and balances.
Two Senators residing in their own states - living among their own people - representing and voting the interests of those states. The Founders’ saw the need for national unity - important and necessary - but not more important or supreme - than state sovereignty.
The 17th was also “sold” as one man one vote. It was represented in the public discourse of the time - as a much preferred way of direct voting over the “onerous” method at the state level. Few saw the danger to the sovereignty of the states at the time, so involved were the people in the movement to modern advancement - they little appreciated the wisdom of the past. The generations that had fought for freedom and liberty from oppressive government - were gone and their wisdom and their warnings toward liberty’s constant vigil had been buried with them.
Ironically, the 17th Amendment created the same form of government that our fore-fathers had fought a war of independence to be free from. The 'thief' did not have to 'steal' in the shadows the balance guaranteed in the Constitution...the power was given away with the open hand of forgotten memory and ignorance.
The Constitution is a COMPACT of STATES and the Senate was designed to give each State an EQUAL vote in the Federal Government. This was to protect the States from laws like the UNFUNDED MANDATES that Congress now passes on to the States; if the Senators were the proxies (fiduciaries) of the State Legislature now, would they ever vote to overpower the State Legislatures and local governments?
Before the 17thAmendment, there were cases of political favor and corruption within the state levels of government. The problems ranged from “charges” of bribery to unbreakable deadlocks. There also was an Electoral College tie.
The Progressive and Socialist, as well as the Communist Parties were making their inroads into the political landscape….. Special interests, power-growing political party systems – argued that if you moved the state representation of Senators into the centralized wing, and allowed the people to vote for their Senators, rather than having the state legislatures nominate the senate representatives - the people would think they were more involved because of the popular vote.
How much easier the process of buying the influence of one, rather than effect the many in a legislative body. Divide and conquer has always been an effective strategy. This action empowered the political parties and created the environment ripe for special interests and (lobbyists) who could affect popular elections with incentives and purchased loyalty. The Senate as a body can withhold funding for the states to force compliance. The party in current political power can promote, and effect legislation at the federal level.
Progressive and socialist ideological agendas have been added from the power-grab gained from the ratification of the 14th Amendment, combined with the taxing power of the 16th Amendment, and finally, the voting power that the centralized the inclusion of the Senate [at the federal level in Congress], gives.
These 3 amendments, in combination, have destroyed the original intent and the principles of the Constitution as it was originally written.
It was little debated at the time and its implications to federalism were scarcely considered. The People were presented with the idea that the 17th promoted national unity and would serve as a deterrent to corruption and elitism.
The 17th Amendment Overview – Part 2
The 17th Amendment, upon ratification, brought a different political direction to the legislative process – instead of state-up government – the 17th would make it federal-down to state dictate. Experience had taught the Founders the dangers of the application of ruling authority. Guided by the principle of creating an opposite system of government they designed their ingenious template of “checks and balances”, with divisions and distributions of power.
As James Madison stated in Federalist 10:
“Before taking effect, legislation would have to be ratified by two independent power sources: the people’s representatives in the House and the state legislatures’ agents in the Senate.”
As originally designed, the Founders’ system BOTH protected nationalism and ensured that relatively few benefits would be provided to “special interests”, seeking the opportunity to effect governmental concerns and corrupt representative government.
There is widespread agreement that the 17th Amendment was to the detriment of the states, and that it has played/will continue to play, a large part in the dramatically changing the role of the national government. It serves to marginalize the power of the states and increases the power of political parties.
The problems cited under the original Constitution’s Senate structure pale in comparison to the effects of the 17th Amendment on today’s government.
The Founders expressed many thoughts to the intent of our Constitution. The implication of the 17th Amendment as being true to their intention and reverence of state sovereignty is, by many challenged. It does in fact; present itself in direct opposition to their opinion.
Thomas Jefferson
"I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition."
Thomas Jefferson:
"A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit, and incurring the horrors of a war and long oppressions of enormous public debt. If the game runs sometimes against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are at stake. - From a letter to John Taylor (June 1798), after the passage of the Alien and Sedition Acts."
Thomas Jefferson:
"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." - Letter to Abigail Adams (1804)
Thomas Jefferson:
"An opinion prevails that there is no longer any distinction, that the republicans & Federalists are completely amalgamated but it is not so. The amalgamation is of name only, not of principle. All indeed call themselves by the name of Republicans, because that of Federalists was extinguished in the battle of New Orleans."
But the truth is that finding that monarchy is a desperate wish in this country, they rally to the point which they think next best, a consolidated government. Their aim is now therefore to break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth.
Hence new Republicans in Congress are preaching the doctrines of the old Federalists, and the new nick-names of Ultras and Radicals. But I trust they will fail under the new, as the old name, and that the friends of the real constitution and union will prevail against consolidation, as they have done against monarchism.
"I scarcely know myself which is most to be deprecated, a consolidation, or dissolution of the states. The horrors of both are beyond the reach of human foresight." - Thomas Jefferson to William B. Giles, December 26, 1825
So begins our resource material presentation to support the argument to repeal the 17th Amendment.
As James Madison stated in Federalist 10:
“Before taking effect, legislation would have to be ratified by two independent power sources: the people’s representatives in the House and the state legislatures’ agents in the Senate.”
As originally designed, the Founders’ system BOTH protected nationalism and ensured that relatively few benefits would be provided to “special interests”, seeking the opportunity to effect governmental concerns and corrupt representative government.
There is widespread agreement that the 17th Amendment was to the detriment of the states, and that it has played/will continue to play, a large part in the dramatically changing the role of the national government. It serves to marginalize the power of the states and increases the power of political parties.
The problems cited under the original Constitution’s Senate structure pale in comparison to the effects of the 17th Amendment on today’s government.
The Founders expressed many thoughts to the intent of our Constitution. The implication of the 17th Amendment as being true to their intention and reverence of state sovereignty is, by many challenged. It does in fact; present itself in direct opposition to their opinion.
Thomas Jefferson
"I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition."
Thomas Jefferson:
"A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit, and incurring the horrors of a war and long oppressions of enormous public debt. If the game runs sometimes against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are at stake. - From a letter to John Taylor (June 1798), after the passage of the Alien and Sedition Acts."
Thomas Jefferson:
"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." - Letter to Abigail Adams (1804)
Thomas Jefferson:
"An opinion prevails that there is no longer any distinction, that the republicans & Federalists are completely amalgamated but it is not so. The amalgamation is of name only, not of principle. All indeed call themselves by the name of Republicans, because that of Federalists was extinguished in the battle of New Orleans."
But the truth is that finding that monarchy is a desperate wish in this country, they rally to the point which they think next best, a consolidated government. Their aim is now therefore to break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth.
Hence new Republicans in Congress are preaching the doctrines of the old Federalists, and the new nick-names of Ultras and Radicals. But I trust they will fail under the new, as the old name, and that the friends of the real constitution and union will prevail against consolidation, as they have done against monarchism.
"I scarcely know myself which is most to be deprecated, a consolidation, or dissolution of the states. The horrors of both are beyond the reach of human foresight." - Thomas Jefferson to William B. Giles, December 26, 1825
So begins our resource material presentation to support the argument to repeal the 17th Amendment.
Democratizing the Constitution: The Failure of the Seventeenth Amendment
From The Center for Constitutional Studies
C. H. Hoebeke
[From HUMANITAS, Volume IX, No. 2, 1996 © National Humanities Institute]
It was with no small sense of vindication that Secretary of State William Jennings Bryan signed the proclamation of 31 May 1913, declaring the Seventeenth Amendment duly ratified and incorporated into the fundamental laws of the United States. More than twenty years earlier as a Nebraska congressman, "The Great Commoner" had joined the struggle to free the Senate from the control of corrupt state legislatures, and despite three failed campaigns for the presidency, he never wavered in his determination to make the Senate a popularly elected body. Now, after the most protracted political battle in that usually bloodless revolution historians refer to as the Progressive Era, Secretary Bryan put his seal upon the reform that, in the expectations of those who had labored for it, would end the dominance of party "bosses" and the state "machines," stamp out the undue influence of special interests in the Senate, make it more responsive to the will of the people, and of course, eliminate, or greatly reduce, the execrable practice of spending large sums of money to get elected.
As we shall see, even while the amendment was still being considered by the American public, there were ample reasons to doubt its effectiveness and to question the credulity, if not the integrity, of those who proposed it. But more than eight decades after the amendment, the current condition of Senate elections and Senate politics makes the sanguine predictions of 1913 look wholly naive. Progressive Era reformers scandalized by the rare campaign expenditure of a hundred thousand dollars might be shocked senseless to learn that by the 1990s the average cost of a Senate seat would be well over five million dollars, that a candidate would not even approach the threshold of scandal until he had spent fifteen or twenty million dollars. If there was once cause for concern in the muckraking stories of industrial tycoons and railroad barons buying Senate influence through contributions to the state legislators, then the largess of lobbyists and activists that is today handed openly and directly to Senate candidates (overwhelmingly in favor of incumbents) should be a cause for outright alarm. And if in 1913 the old-time brokers of Senate elections were cleared from their smoke-filled rooms, the current regime of media consultants, professional pollsters, mass-market specialists, and "constituent-minded" software is hardly the victory over political cynicism that Bryan and the Progressives had envisioned.
In retrospect, the amendment failed to accomplish what was expected of it, and in most cases failed dismally. Exorbitant expenditures, alliances with well-financed lobby groups, and electioneering sleights-of-hand have continued to characterize Senate campaigns long after the constitutional nostrum was implemented. In fact, such tendencies have grown increasingly problematic. Insofar as the Senate also has participated in lavishing vast sums on federal projects of dubious value to the general welfare, and producing encyclopedic volumes of legislation that never will be read or understood by the great mass of Americans, it can hardly be the case that popular elections have strengthened the upper chamber's resistance to the advances of special interests. Ironically, those elections have not even succeeded in improving the Senate's popularity, which, according to one senior member, currently places a senator at about "the level of a used-car salesman."
Of course, the same criticisms have been directed with increasing intensity against the House of Representatives, which, unlike the Senate, has never undergone a fundamental alteration in the manner of its elections. Perhaps, then, the amendment is not the sole or even the primary cause of the Senate's decline. Or perhaps its consequences have actually extended to both houses of Congress. What can be asserted confidently is that the amendment did not redress the grievances of Progressive reformers.
Viewing such a miscarriage against the backdrop of present political discontent, one might conclude that the chief shortcoming of Progressivism was that it did not go far enough in establishing what was often referred to in the early twentieth century as "The People's Rule." Whatever gains were made by the direct election of senators and similar reforms of the era, such as local and state recall elections, party primaries, and direct legislation in the form of statewide initiatives and referenda, they have not quieted the protests against the average American's perceived loss of control over the political system. Indeed, judging from the rhetoric of the talk shows and campaigning politicians, the prevailing sentiment has changed very little since the Seventeenth Amendment. The contention that power must be dislodged from "the interests" and restored to "the people" is asserted as strongly today as it was in the time of Robert La Follette and Woodrow Wilson. Reformers of the twentieth century--whether the Progressives and their New Deal-Great Society successors seeking to rein in the might of sinister economic forces, or the contemporary champions of free markets and deregulation taking up the fight against big government and oppressive bureaucracy--typically have been populists at heart, inspired to play the role of Leading The People in revolt against the system.
The economic skirmishes between the regulatory liberalism of the past and the laissez-faire liberalism resuscitated from an earlier past belie a fundamental continuity of American political reform. Whether the menace of the hour is perceived to be socialism or capitalism, blame is not affixed merely to the errors and excesses of policy, but ultimately extends to the very political order that has permitted or promoted them. The difficulties, complications, and setbacks of governing a diverse and populous continent typically have been ascribed to representative institutions that thwart the will of the people. Amelioration is therefore seen as a simple matter of circumscribing the authority of representatives and of establishing means of expressing the popular desires more clearly and enacting them more promptly. In this sense, today's neoconservative advocate of constitutionally mandated term limits and balanced budgets is, with regard to the animating principle of reform, the spiritual heir of the Progressive who prevailed in transferring the choice of senators from state legislatures to the people.
The predilection for revoking representative authority and replacing it with more direct means of popular expression might not seem obvious from a cursory glance at the Constitution, which has seen relatively few amendments in the two centuries of its existence. But behind the document's seemingly tranquil history, hundreds of proposals have been made to create more plebiscitary law-making methods, restrict the deliberations of House and Senate, and guarantee rule according to the momentary wishes of the majority in the fundamental law. The Constitution has withstood most such assaults only because of the founders' sagacity in making change difficult, although this feature, too, has often come under the attack of ambitious populists. State constitutions, on the other hand, have proven not nearly as resistant. Subject to alterations at the hands of anonymous pluralities of voters in statewide referenda, expanding by process of accretion into detailed delineations of rules and regulations that make them practically indistinguishable from ordinary codes of statutes, the constitutions of the states more accurately depict America's long-standing distrust of representative bodies.
At the federal level, the Seventeenth Amendment is unique for having been the first and, to date, the only successful incursion of populist reformers against the representative structure instituted by the founding fathers. Of course, encroachments on the established processes have continued in other, more subtle, ways, such as in the increasing reliance on popular-opinion polls in determining the course of national policy, or the tremendous power of the mass media to influence the deliberations, and even the agenda, of Congress. While such changes have come about by circumstance and usage rather than design, they undoubtedly have debilitated the capacity of elected delegates to be representative in the sense that Edmund Burke used the term in his famous admonition to the Electors of Bristol, that is, in refusing to bow to unwarranted pressures from individual citizens and interest groups who are outside the constituted processes. But the constitutional change that divested state legislators of the power to represent their constituents in the election of U.S. senators, and that invested that power in mass statewide electorates stands alone for having been deliberate. In fact, it is the only plebiscitarian subversion of the federal system to have been accomplished through the formal representative process itself.
Read more.....http://www.nhinet.org/hoebeke.htm
C. H. Hoebeke
[From HUMANITAS, Volume IX, No. 2, 1996 © National Humanities Institute]
It was with no small sense of vindication that Secretary of State William Jennings Bryan signed the proclamation of 31 May 1913, declaring the Seventeenth Amendment duly ratified and incorporated into the fundamental laws of the United States. More than twenty years earlier as a Nebraska congressman, "The Great Commoner" had joined the struggle to free the Senate from the control of corrupt state legislatures, and despite three failed campaigns for the presidency, he never wavered in his determination to make the Senate a popularly elected body. Now, after the most protracted political battle in that usually bloodless revolution historians refer to as the Progressive Era, Secretary Bryan put his seal upon the reform that, in the expectations of those who had labored for it, would end the dominance of party "bosses" and the state "machines," stamp out the undue influence of special interests in the Senate, make it more responsive to the will of the people, and of course, eliminate, or greatly reduce, the execrable practice of spending large sums of money to get elected.
As we shall see, even while the amendment was still being considered by the American public, there were ample reasons to doubt its effectiveness and to question the credulity, if not the integrity, of those who proposed it. But more than eight decades after the amendment, the current condition of Senate elections and Senate politics makes the sanguine predictions of 1913 look wholly naive. Progressive Era reformers scandalized by the rare campaign expenditure of a hundred thousand dollars might be shocked senseless to learn that by the 1990s the average cost of a Senate seat would be well over five million dollars, that a candidate would not even approach the threshold of scandal until he had spent fifteen or twenty million dollars. If there was once cause for concern in the muckraking stories of industrial tycoons and railroad barons buying Senate influence through contributions to the state legislators, then the largess of lobbyists and activists that is today handed openly and directly to Senate candidates (overwhelmingly in favor of incumbents) should be a cause for outright alarm. And if in 1913 the old-time brokers of Senate elections were cleared from their smoke-filled rooms, the current regime of media consultants, professional pollsters, mass-market specialists, and "constituent-minded" software is hardly the victory over political cynicism that Bryan and the Progressives had envisioned.
In retrospect, the amendment failed to accomplish what was expected of it, and in most cases failed dismally. Exorbitant expenditures, alliances with well-financed lobby groups, and electioneering sleights-of-hand have continued to characterize Senate campaigns long after the constitutional nostrum was implemented. In fact, such tendencies have grown increasingly problematic. Insofar as the Senate also has participated in lavishing vast sums on federal projects of dubious value to the general welfare, and producing encyclopedic volumes of legislation that never will be read or understood by the great mass of Americans, it can hardly be the case that popular elections have strengthened the upper chamber's resistance to the advances of special interests. Ironically, those elections have not even succeeded in improving the Senate's popularity, which, according to one senior member, currently places a senator at about "the level of a used-car salesman."
Of course, the same criticisms have been directed with increasing intensity against the House of Representatives, which, unlike the Senate, has never undergone a fundamental alteration in the manner of its elections. Perhaps, then, the amendment is not the sole or even the primary cause of the Senate's decline. Or perhaps its consequences have actually extended to both houses of Congress. What can be asserted confidently is that the amendment did not redress the grievances of Progressive reformers.
Viewing such a miscarriage against the backdrop of present political discontent, one might conclude that the chief shortcoming of Progressivism was that it did not go far enough in establishing what was often referred to in the early twentieth century as "The People's Rule." Whatever gains were made by the direct election of senators and similar reforms of the era, such as local and state recall elections, party primaries, and direct legislation in the form of statewide initiatives and referenda, they have not quieted the protests against the average American's perceived loss of control over the political system. Indeed, judging from the rhetoric of the talk shows and campaigning politicians, the prevailing sentiment has changed very little since the Seventeenth Amendment. The contention that power must be dislodged from "the interests" and restored to "the people" is asserted as strongly today as it was in the time of Robert La Follette and Woodrow Wilson. Reformers of the twentieth century--whether the Progressives and their New Deal-Great Society successors seeking to rein in the might of sinister economic forces, or the contemporary champions of free markets and deregulation taking up the fight against big government and oppressive bureaucracy--typically have been populists at heart, inspired to play the role of Leading The People in revolt against the system.
The economic skirmishes between the regulatory liberalism of the past and the laissez-faire liberalism resuscitated from an earlier past belie a fundamental continuity of American political reform. Whether the menace of the hour is perceived to be socialism or capitalism, blame is not affixed merely to the errors and excesses of policy, but ultimately extends to the very political order that has permitted or promoted them. The difficulties, complications, and setbacks of governing a diverse and populous continent typically have been ascribed to representative institutions that thwart the will of the people. Amelioration is therefore seen as a simple matter of circumscribing the authority of representatives and of establishing means of expressing the popular desires more clearly and enacting them more promptly. In this sense, today's neoconservative advocate of constitutionally mandated term limits and balanced budgets is, with regard to the animating principle of reform, the spiritual heir of the Progressive who prevailed in transferring the choice of senators from state legislatures to the people.
The predilection for revoking representative authority and replacing it with more direct means of popular expression might not seem obvious from a cursory glance at the Constitution, which has seen relatively few amendments in the two centuries of its existence. But behind the document's seemingly tranquil history, hundreds of proposals have been made to create more plebiscitary law-making methods, restrict the deliberations of House and Senate, and guarantee rule according to the momentary wishes of the majority in the fundamental law. The Constitution has withstood most such assaults only because of the founders' sagacity in making change difficult, although this feature, too, has often come under the attack of ambitious populists. State constitutions, on the other hand, have proven not nearly as resistant. Subject to alterations at the hands of anonymous pluralities of voters in statewide referenda, expanding by process of accretion into detailed delineations of rules and regulations that make them practically indistinguishable from ordinary codes of statutes, the constitutions of the states more accurately depict America's long-standing distrust of representative bodies.
At the federal level, the Seventeenth Amendment is unique for having been the first and, to date, the only successful incursion of populist reformers against the representative structure instituted by the founding fathers. Of course, encroachments on the established processes have continued in other, more subtle, ways, such as in the increasing reliance on popular-opinion polls in determining the course of national policy, or the tremendous power of the mass media to influence the deliberations, and even the agenda, of Congress. While such changes have come about by circumstance and usage rather than design, they undoubtedly have debilitated the capacity of elected delegates to be representative in the sense that Edmund Burke used the term in his famous admonition to the Electors of Bristol, that is, in refusing to bow to unwarranted pressures from individual citizens and interest groups who are outside the constituted processes. But the constitutional change that divested state legislators of the power to represent their constituents in the election of U.S. senators, and that invested that power in mass statewide electorates stands alone for having been deliberate. In fact, it is the only plebiscitarian subversion of the federal system to have been accomplished through the formal representative process itself.
Read more.....http://www.nhinet.org/hoebeke.htm
It's the Constitution that's Radicalizing Our Politicians
By John W. Truslow, III April 24, 2010 It is likely that conservatives will fail to understand why health care "reform" became law, and they are likely to fail if they start any post-mortem by accepting the conventional wisdom's realist premise: 1) Two election cycles produced a critical mass of radicals in the legislative and executive branches of government. 2) The personalities of those in the elected majority were more dynamic and compelling than those in the minority. And 3) the tactics employed by the majority prevailed over those with less adequate tools at their disposal.
Without challenging the premises, conservative analysis so far has asserted the only conclusions it could: Elect more conservatives, recruit more vibrant leaders, and become more ruthless in the application of power when it is obtained. These are the strategies of populist radicals, and commentators have suggested that conservatives should and can beat the radicals at their own game. However, given the prevailing cultural and demographic winds, that is not only exceptionally unlikely over the next century, but it is also both shortsighted and unhelpful precisely because it is a prescription for neither stability nor securing lasting liberty -- only an electoral variation doomed to be swept in and out again with the flow of the political tides. Conservatives must begin from a different starting position and make other, more significant changes.
The conservative claim is that structural order must be restored, or put another way: If the construction of the political system remains the same, then the outputs of that system also will remain the same. The three-part preoccupation with establishing a permanent majority, the cult of personality (including the veneration of President Reagan), and dubious tactics to secure required ends is a postmodern perversion of conservatism, and these tendencies distract from the core values that make conservatives critical to the sustainability of society.
In contrast to the above, 1) Conservatives understand that unchecked majority rule can be tyranny. 2) Conservatives distrust the coercive power of individual celebrity, putting their faith in just institutions. 3) Conservatives believe that a principled process is more valuable than an efficient practice. So, when analyzing the current political debacle as conservatives, there is a very different conclusion to be drawn: The system itself encourages radicalism (be they Republicans in 2003 or Democrats in 2010), and without systemic change, radicalism will continue to advance. Therefore, conservatives must work first to restore the integrity of the constitutional order.
The 17th Amendment to the U.S. Constitution (1913) is a clear catalyst for American radicalism, bringing a century of immeasurable disorder to the original constitutional framework. Before the passage of the 17th Amendment, the Constitution provided moderate, temperate government primarily by limiting the federal government's power. It did this by a) establishing a political -- not judicial -- arena for the competition of unaligned self-interests, b) broadly diffusing power through a process of checks and balances existing between the federal and state governments, and also among the three branches of the federal government, and c) enumerating specific powers, such as the commerce clause (from which Congress justifies the bulk of its current activity). The 17th Amendment eviscerated all three parts of that structure, and in doing so created the context in which radicalism has flourished in both parties. Consider each of these in turn:
First, before the passage of the 17th Amendment, members of the Senate were chosen by state legislatures to be the agents of those sovereign governments in Washington, D.C., much like ambassadors today at the United Nations. While a member of the House would represent the intemperate passions of the people as citizens, a senator would represent the very different interests of the people's state governments. The interests of the two bodies were purposefully not aligned -- their constituencies were different. The 17th Amendment allowed for the direct election of senators by the citizens of each state. What the U.S. had prior to 1913 was a bicameral legislature competing bill-by-bill for the direction and scope of the federal government. Now that both representatives and senators have an identical interest (pandering to the citizenry), Congress is one herd of cattle in two pens.
Second, by removing the states' voice in the federal government, the 17th Amendment crippled the original meaning of both "separation of powers" and "checks and balances." As a direct result, the states are effectively powerless to stop the expansion of national government into their sovereign affairs. There is no other effective restraint. Put differently, given the structure of government under the 17th Amendment, there is no reliable way to stop the spread of national government power because the constitutional check against its expansion has been eliminated. Electing a majority of "better" candidates to high office will not solve this problem because -- as the Framers well knew -- a system in which political power is unchecked radicalizes the behavior of any man within it.
Third, mindful of their different constituencies, the Constitution gave the Senate functions different from those of the House, such as the confirmation of Supreme Court justices. There was a reasonable expectation that the emissaries of the states in the Senate would approve only of those nominees possessing a view of government that defended the state's sovereignty and right to govern responsively. With the Senate no longer populated with members appointed to represent the interests of the states, Supreme Court justices have allowed the original (and very limiting) meaning of the commerce clause to erode in favor of Congress's interests.
Congress -- now aligned with the majority's fanaticism -- has responded by taking as much power as possible. Consider the plight of states' Attorneys Generals as they file suit to halt the implementation of the health care reform law: The states are making their constitutional appeal to justices confirmed by senators who do not have the states' interests at heart. Prior to the 17th Amendment, there was virtually no chance that any legislative action filled with unfunded mandates to the states would ever clear a Senate composed of states' representatives. Today, all the states can do is pray that justices confirmed by the exact body that voted for the law in question will come to their aid. Good luck with that.
Conservatives view the current political structure as broken, not simply populated by the wrong group of scoundrels. Focusing first on large conservative majorities, better communicators, and merciless implementation is playing the short game. To set the country on a sustainable path, we must first embrace the old and tried and repeal the 17th Amendment.
John W. Truslow, III is Director of the Campaign to Restore Federalism, found online at restore federalism.org.
on "It's the Constitution that's Radicalizing Our Politicians"
http://www.americanthinker.com/2010/04/its_the_constitution_thats_rad.html
Without challenging the premises, conservative analysis so far has asserted the only conclusions it could: Elect more conservatives, recruit more vibrant leaders, and become more ruthless in the application of power when it is obtained. These are the strategies of populist radicals, and commentators have suggested that conservatives should and can beat the radicals at their own game. However, given the prevailing cultural and demographic winds, that is not only exceptionally unlikely over the next century, but it is also both shortsighted and unhelpful precisely because it is a prescription for neither stability nor securing lasting liberty -- only an electoral variation doomed to be swept in and out again with the flow of the political tides. Conservatives must begin from a different starting position and make other, more significant changes.
The conservative claim is that structural order must be restored, or put another way: If the construction of the political system remains the same, then the outputs of that system also will remain the same. The three-part preoccupation with establishing a permanent majority, the cult of personality (including the veneration of President Reagan), and dubious tactics to secure required ends is a postmodern perversion of conservatism, and these tendencies distract from the core values that make conservatives critical to the sustainability of society.
In contrast to the above, 1) Conservatives understand that unchecked majority rule can be tyranny. 2) Conservatives distrust the coercive power of individual celebrity, putting their faith in just institutions. 3) Conservatives believe that a principled process is more valuable than an efficient practice. So, when analyzing the current political debacle as conservatives, there is a very different conclusion to be drawn: The system itself encourages radicalism (be they Republicans in 2003 or Democrats in 2010), and without systemic change, radicalism will continue to advance. Therefore, conservatives must work first to restore the integrity of the constitutional order.
The 17th Amendment to the U.S. Constitution (1913) is a clear catalyst for American radicalism, bringing a century of immeasurable disorder to the original constitutional framework. Before the passage of the 17th Amendment, the Constitution provided moderate, temperate government primarily by limiting the federal government's power. It did this by a) establishing a political -- not judicial -- arena for the competition of unaligned self-interests, b) broadly diffusing power through a process of checks and balances existing between the federal and state governments, and also among the three branches of the federal government, and c) enumerating specific powers, such as the commerce clause (from which Congress justifies the bulk of its current activity). The 17th Amendment eviscerated all three parts of that structure, and in doing so created the context in which radicalism has flourished in both parties. Consider each of these in turn:
First, before the passage of the 17th Amendment, members of the Senate were chosen by state legislatures to be the agents of those sovereign governments in Washington, D.C., much like ambassadors today at the United Nations. While a member of the House would represent the intemperate passions of the people as citizens, a senator would represent the very different interests of the people's state governments. The interests of the two bodies were purposefully not aligned -- their constituencies were different. The 17th Amendment allowed for the direct election of senators by the citizens of each state. What the U.S. had prior to 1913 was a bicameral legislature competing bill-by-bill for the direction and scope of the federal government. Now that both representatives and senators have an identical interest (pandering to the citizenry), Congress is one herd of cattle in two pens.
Second, by removing the states' voice in the federal government, the 17th Amendment crippled the original meaning of both "separation of powers" and "checks and balances." As a direct result, the states are effectively powerless to stop the expansion of national government into their sovereign affairs. There is no other effective restraint. Put differently, given the structure of government under the 17th Amendment, there is no reliable way to stop the spread of national government power because the constitutional check against its expansion has been eliminated. Electing a majority of "better" candidates to high office will not solve this problem because -- as the Framers well knew -- a system in which political power is unchecked radicalizes the behavior of any man within it.
Third, mindful of their different constituencies, the Constitution gave the Senate functions different from those of the House, such as the confirmation of Supreme Court justices. There was a reasonable expectation that the emissaries of the states in the Senate would approve only of those nominees possessing a view of government that defended the state's sovereignty and right to govern responsively. With the Senate no longer populated with members appointed to represent the interests of the states, Supreme Court justices have allowed the original (and very limiting) meaning of the commerce clause to erode in favor of Congress's interests.
Congress -- now aligned with the majority's fanaticism -- has responded by taking as much power as possible. Consider the plight of states' Attorneys Generals as they file suit to halt the implementation of the health care reform law: The states are making their constitutional appeal to justices confirmed by senators who do not have the states' interests at heart. Prior to the 17th Amendment, there was virtually no chance that any legislative action filled with unfunded mandates to the states would ever clear a Senate composed of states' representatives. Today, all the states can do is pray that justices confirmed by the exact body that voted for the law in question will come to their aid. Good luck with that.
Conservatives view the current political structure as broken, not simply populated by the wrong group of scoundrels. Focusing first on large conservative majorities, better communicators, and merciless implementation is playing the short game. To set the country on a sustainable path, we must first embrace the old and tried and repeal the 17th Amendment.
John W. Truslow, III is Director of the Campaign to Restore Federalism, found online at restore federalism.org.
on "It's the Constitution that's Radicalizing Our Politicians"
http://www.americanthinker.com/2010/04/its_the_constitution_thats_rad.html
Repeal the 17th Amendment!
From National Review Online
In our grubby, unhelpful political lexicon, certain words exist solely to end conversations. The most prominent such word is “racist.” Less popular, but by no means less potent, are “democracy” and “rights.” When welded together as “democratic rights,” the pair becomes all-powerful — strong enough to send grown men spinning for the exits and to render eloquent speakers mute.
For a good example of this principle in motion, witness the orthodox reaction to anyone who calls for the repeal of the 17th Amendment. (Direct election of senators, if you’re wondering.) Removing this ugly violation from the Constitution it so corrupts is an idea that has long lingered on the fringe (there’s another of those conversation-terminating words) and, until the massive expansion of federal power that marked the past decade and woke up the sleeping libertarians, it seemed destined to remain there in perpetuity. Even now, to declare in public that you think the whole of 1913 was one long, ghastly mistake is to be looked at as if you have just announced that the United States should consider restoring the British monarchy.
Providing what may be the Platonic ideal of such dismissals, Salon’s Alex Seitz-Wald reacted to the renewed interest by declaring in 2012 that, because any increase of democracy was “unquestionably positive,” any modifications were tantamount to “doing away with rights.” America, “we’re told from a young age, is all about democracy,” Seitz-Wald wrote, “and democracy is all about choosing whom you want to be your representative and holding them accountable.” This, he added, “seems like an entirely uncontroversial idea.” I cannot account for Mr. Seitz-Wald’s grasp of America’s history, beyond saying that if he has indeed been told “from a young age” that America is “all about democracy,” then he must be forgiven for believing it. Still, whatever his schools might have told him, the United States is not in fact a democracy but a constitutional republic, and her virtues lie as much in her undemocratic institutions as in her ample provisions for self-rule — more, perhaps.
Doubt it? Look around. Despite the violence that the 17th Amendment did to it, the Senate remains a partially anti-democratic institution; the Supreme Court is an entirely undemocratic institution; the Constitution is undemocratic, too, requiring for any changes to its structure the consent of a supermajority and containing the Bill of Rights, which is as elevated and explicitly counter-majoritarian a component of national law as you will find. The strong American protections of free speech, freedom of religion, the right to bear arms, due process, privacy, and the right to a jury trial are triumphs of minority rights. How about the absence of a state church? Not for nothing did Patrick Henry cry ardently for “liberty or death.” It is liberty, not democracy, that is America’s highest ideal.
Walter Lippmann famously observed that, at some point in their history, “the American people came to believe that their Constitution was a democratic instrument, and treated it as such.” The New York Times’ David Firestone appears to be one of these American people, arguing as he did in 2010 that “a modern appreciation of democracy” makes the idea of directly electing senators “so obvious” that any proposal of change is “unthinkable.” Putting to one side for now the narrow procedural majoritarianism inherent in his definition, Firestone’s thesis runs into two problems: America is not “modern” and it is not a “democracy.” Perish the thought.
Instead, the American system was deliberately designed to balance power between the various branches of government and to guarantee individual rights against majority rule, thus protecting the people from tyranny whether they liked it or not. The United States government was arranged in this way as a permanent bulwark against federal encroachment. “Changing times” was no more a strong justification for the undoing of this system in 1913 than it is now. And whatever the Wilson-era progressives might have held, the federal government was not intended to be a wholly separated layer of government. Instead, it was to be intertwined with the states to such an extent that it could not ride roughshod over their interests without pushback. As James Madison resolved during the debate over the Bill of Rights:
The state legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of the people’s liberty.
It is exactly here that America’s democracy fetishists go wrong. As Madison makes clear in the Federalist Papers, in order to defend the vertical checks and balances that allow America’s federal system to function, senators would be “elected absolutely and exclusively by state legislatures.” The Senate was not intended to be the people’s representative body, but that of the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously.
http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke
In our grubby, unhelpful political lexicon, certain words exist solely to end conversations. The most prominent such word is “racist.” Less popular, but by no means less potent, are “democracy” and “rights.” When welded together as “democratic rights,” the pair becomes all-powerful — strong enough to send grown men spinning for the exits and to render eloquent speakers mute.
For a good example of this principle in motion, witness the orthodox reaction to anyone who calls for the repeal of the 17th Amendment. (Direct election of senators, if you’re wondering.) Removing this ugly violation from the Constitution it so corrupts is an idea that has long lingered on the fringe (there’s another of those conversation-terminating words) and, until the massive expansion of federal power that marked the past decade and woke up the sleeping libertarians, it seemed destined to remain there in perpetuity. Even now, to declare in public that you think the whole of 1913 was one long, ghastly mistake is to be looked at as if you have just announced that the United States should consider restoring the British monarchy.
Providing what may be the Platonic ideal of such dismissals, Salon’s Alex Seitz-Wald reacted to the renewed interest by declaring in 2012 that, because any increase of democracy was “unquestionably positive,” any modifications were tantamount to “doing away with rights.” America, “we’re told from a young age, is all about democracy,” Seitz-Wald wrote, “and democracy is all about choosing whom you want to be your representative and holding them accountable.” This, he added, “seems like an entirely uncontroversial idea.” I cannot account for Mr. Seitz-Wald’s grasp of America’s history, beyond saying that if he has indeed been told “from a young age” that America is “all about democracy,” then he must be forgiven for believing it. Still, whatever his schools might have told him, the United States is not in fact a democracy but a constitutional republic, and her virtues lie as much in her undemocratic institutions as in her ample provisions for self-rule — more, perhaps.
Doubt it? Look around. Despite the violence that the 17th Amendment did to it, the Senate remains a partially anti-democratic institution; the Supreme Court is an entirely undemocratic institution; the Constitution is undemocratic, too, requiring for any changes to its structure the consent of a supermajority and containing the Bill of Rights, which is as elevated and explicitly counter-majoritarian a component of national law as you will find. The strong American protections of free speech, freedom of religion, the right to bear arms, due process, privacy, and the right to a jury trial are triumphs of minority rights. How about the absence of a state church? Not for nothing did Patrick Henry cry ardently for “liberty or death.” It is liberty, not democracy, that is America’s highest ideal.
Walter Lippmann famously observed that, at some point in their history, “the American people came to believe that their Constitution was a democratic instrument, and treated it as such.” The New York Times’ David Firestone appears to be one of these American people, arguing as he did in 2010 that “a modern appreciation of democracy” makes the idea of directly electing senators “so obvious” that any proposal of change is “unthinkable.” Putting to one side for now the narrow procedural majoritarianism inherent in his definition, Firestone’s thesis runs into two problems: America is not “modern” and it is not a “democracy.” Perish the thought.
Instead, the American system was deliberately designed to balance power between the various branches of government and to guarantee individual rights against majority rule, thus protecting the people from tyranny whether they liked it or not. The United States government was arranged in this way as a permanent bulwark against federal encroachment. “Changing times” was no more a strong justification for the undoing of this system in 1913 than it is now. And whatever the Wilson-era progressives might have held, the federal government was not intended to be a wholly separated layer of government. Instead, it was to be intertwined with the states to such an extent that it could not ride roughshod over their interests without pushback. As James Madison resolved during the debate over the Bill of Rights:
The state legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of the people’s liberty.
It is exactly here that America’s democracy fetishists go wrong. As Madison makes clear in the Federalist Papers, in order to defend the vertical checks and balances that allow America’s federal system to function, senators would be “elected absolutely and exclusively by state legislatures.” The Senate was not intended to be the people’s representative body, but that of the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously.
http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke
Federalism and the 17th Amendment
Last month we described the emerging "federalist revolution," the bold campaign many of the states have launched to reclaim their rightful place in the American political system. This movement could well become one of the most significant developments in modern history-but in order to bear good fruit, it must be rooted in the inspired constitutional formula that made America "the land of the free."
Since the only way to restore American federalism is to reinstate the principles on which it was built, this month we're going to focus on the founding fathers' original design for federal-state relations. And on the basis of that design, we'll suggest a strategy that can help unite and empower the states as they work to reestablish their proper role in our nation's government.
How Is Power Divided Between Washington, D.C., and the States?
As we explained in our March newsletter, federalism is the constitutional division of powers between the national and state governments. To function correctly, this kind of political system requires at least two things: a binding agreement that specifies the distribution of powers between the central government and the states, and effective controls for enforcing and maintaining that agreement. To provide these two elements is the main object of the U.S. Constitution. Since both are vital in the current struggle to repair our federal system, let's examine each of them from the founders' viewpoint.
The framers of our Constitution wanted a strong national government, but they also wanted it to be strictly limited to the functions authorized in the Constitution. Most of these are found in Article I, section 8, which outlines the "enumerated powers" delegated to Congress. And not only does the Constitution specify the powers granted to the central government; it actually prohibits that government from exercising any powers not delegated to it. The 10th Amendment expressly declares that these are "reserved to the states respectively, or to the people."
Thomas Jefferson summarized the basic design of the system: "The people, to whom all authority belongs, have divided the powers of government into two distinct departments [i.e., the national and state governments], the leading [characteristics] of which are foreign and domestic...These they have made coordinate, checking and balancing each other, each equally supreme as to the powers delegated to itself." (1)
The founders felt so strongly about this division of powers that they regarded the 10th Amendment as "the foundation of the Constitution." (2) Jefferson insisted that "to take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition." (3)
What Are the Safeguards, and Why Haven't They Worked?
To help enforce and maintain this system of balanced federalism, the Constitution provides both external and internal controls on government. Perhaps the best example of an external control is the people's right to cast their votes in frequent public elections. Yet this alone is not a sufficient protection, because elected officials sometimes "change their tune" after assuming office. All too often, a candidate who wins a national election by claiming to support constitutional principles catches "Potomac fever" upon arriving in Washington and quickly becomes part of the problem rather than part of the solution.
Among the internal controls established by the founders are (1) the oath of office, which requires all federal and state officials to pledge their support for the U.S. Constitution; (2) the separation of powers, which divides authority among the legislative, executive, and judicial branches to prevent any one branch or individual from becoming too powerful; and (3) a series of checks and balances that enable the three branches of government to keep each other within their proper bounds.
Unfortunately, these internal devices for maintaining our federal system are now largely ignored. For instance, although the president and the Supreme Court both have authority to resist unconstitutional laws enacted by Congress, they seldom do so. In fact, the Court has actually ruled that "Congress.is not limited by the direct grants of legislative power found in the Constitution." (4) Over the last several decades, such neglect of constitutional restraints has allowed Washington to become increasingly abusive toward the states and the citizens of this country.
How We Abandoned Federalism in 1913
Many Americans today are unaware that the Constitution provided another "internal control" on the government that was more powerful than all the others combined: the original design of the U.S. Senate.
For more than a century, senators were elected by state legislators rather than by popular vote. (5) The founders said they had organized Congress in such a way that "the people will be represented in one house, the state legislatures in the other." (6) Thus the states were an integral part of the federal government and had a strong voice in the formation of federal policy. As James Madison put it, "No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the states."
(7) According to George Mason of Virginia, the object of this design was to arm the state legislatures with "some means of defending themselves against encroachments of the national government...And what better means can we provide than [to give] them some share in, or rather to make them a constituent part of, the national establishment?"
(8) Madison explained that the House of Representatives was always regarded as a "national" institution because its members were elected directly by the people, but "the Senate, on the other hand, will derive its powers from the states [and in this respect] the government is federal, not national." (9) In other words, the government in Washington is a "federal" government only if it incorporates the states into its very structure.
The founders even cautioned us about the dangers of altering this arrangement. For example, Fisher Ames of Massachusetts declared in 1788: "The state governments are essential parts of the system…The senators represent the sovereignty of the states; they are in the quality of ambassadors of the states...[But suppose] that they [were] to be chosen by the people at large…Whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on who would devolve the duty of defending them against the encroachments of the federal government?"
(10) But in 1913 we rejected this counsel and adopted the 17th Amendment. Since that time, senators have been elected by popular vote-and the states have had no official representation in Washington. The results have been so disastrous that, from the sobering perspective of our day, Jefferson's warning of 1821 seems almost prophetic: "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated."
(11) Let's Give the U.S. Senate Back to the States!
As we noted earlier, the only way to restore American federalism is to reinstate the principles on which it was built. If we want a genuine federal government again, with the balance and controls originally provided by our Constitution, we must repeal the 17th Amendment.
The United States is a republic, not a democracy; we don't need a second House of Representatives. Since all national legislation must be passed by both houses of Congress, why not give the Senate back to the states? As full participants in the legislative process, they could effectively block any laws, taxes, or appropriations which they considered to be unconstitutional or otherwise harmful to the states or the people.
Repealing the 17th Amendment is the safest, most effective and most permanent solution to the current predicament in our federal system. Consider the strategies that the states are now using:
Many of the states have lobbied Congress to reduce the burden of "unfunded mandates" imposed by the central government, and on March 22 President Clinton signed a new law imposing certain restrictions on such mandates. But these restrictions don't go far enough, and they can be eliminated at any time by a simple majority vote in Congress. Even worse, the new legislation does nothing at all about Washington's unlawful seizure of the decision-making powers reserved to the states.
A few states have filed lawsuits against the national government for specific violations of the Constitution. The problem with this approach is that the outcome is in the hands of the federal courts. And as James Madison observed, the legislative and executive branches of government are not the only potential threats to our liberty: "The judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution."
Read more.....http://www.nccs.net/newsletter/apr95nl.html
Since the only way to restore American federalism is to reinstate the principles on which it was built, this month we're going to focus on the founding fathers' original design for federal-state relations. And on the basis of that design, we'll suggest a strategy that can help unite and empower the states as they work to reestablish their proper role in our nation's government.
How Is Power Divided Between Washington, D.C., and the States?
As we explained in our March newsletter, federalism is the constitutional division of powers between the national and state governments. To function correctly, this kind of political system requires at least two things: a binding agreement that specifies the distribution of powers between the central government and the states, and effective controls for enforcing and maintaining that agreement. To provide these two elements is the main object of the U.S. Constitution. Since both are vital in the current struggle to repair our federal system, let's examine each of them from the founders' viewpoint.
The framers of our Constitution wanted a strong national government, but they also wanted it to be strictly limited to the functions authorized in the Constitution. Most of these are found in Article I, section 8, which outlines the "enumerated powers" delegated to Congress. And not only does the Constitution specify the powers granted to the central government; it actually prohibits that government from exercising any powers not delegated to it. The 10th Amendment expressly declares that these are "reserved to the states respectively, or to the people."
Thomas Jefferson summarized the basic design of the system: "The people, to whom all authority belongs, have divided the powers of government into two distinct departments [i.e., the national and state governments], the leading [characteristics] of which are foreign and domestic...These they have made coordinate, checking and balancing each other, each equally supreme as to the powers delegated to itself." (1)
The founders felt so strongly about this division of powers that they regarded the 10th Amendment as "the foundation of the Constitution." (2) Jefferson insisted that "to take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition." (3)
What Are the Safeguards, and Why Haven't They Worked?
To help enforce and maintain this system of balanced federalism, the Constitution provides both external and internal controls on government. Perhaps the best example of an external control is the people's right to cast their votes in frequent public elections. Yet this alone is not a sufficient protection, because elected officials sometimes "change their tune" after assuming office. All too often, a candidate who wins a national election by claiming to support constitutional principles catches "Potomac fever" upon arriving in Washington and quickly becomes part of the problem rather than part of the solution.
Among the internal controls established by the founders are (1) the oath of office, which requires all federal and state officials to pledge their support for the U.S. Constitution; (2) the separation of powers, which divides authority among the legislative, executive, and judicial branches to prevent any one branch or individual from becoming too powerful; and (3) a series of checks and balances that enable the three branches of government to keep each other within their proper bounds.
Unfortunately, these internal devices for maintaining our federal system are now largely ignored. For instance, although the president and the Supreme Court both have authority to resist unconstitutional laws enacted by Congress, they seldom do so. In fact, the Court has actually ruled that "Congress.is not limited by the direct grants of legislative power found in the Constitution." (4) Over the last several decades, such neglect of constitutional restraints has allowed Washington to become increasingly abusive toward the states and the citizens of this country.
How We Abandoned Federalism in 1913
Many Americans today are unaware that the Constitution provided another "internal control" on the government that was more powerful than all the others combined: the original design of the U.S. Senate.
For more than a century, senators were elected by state legislators rather than by popular vote. (5) The founders said they had organized Congress in such a way that "the people will be represented in one house, the state legislatures in the other." (6) Thus the states were an integral part of the federal government and had a strong voice in the formation of federal policy. As James Madison put it, "No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the states."
(7) According to George Mason of Virginia, the object of this design was to arm the state legislatures with "some means of defending themselves against encroachments of the national government...And what better means can we provide than [to give] them some share in, or rather to make them a constituent part of, the national establishment?"
(8) Madison explained that the House of Representatives was always regarded as a "national" institution because its members were elected directly by the people, but "the Senate, on the other hand, will derive its powers from the states [and in this respect] the government is federal, not national." (9) In other words, the government in Washington is a "federal" government only if it incorporates the states into its very structure.
The founders even cautioned us about the dangers of altering this arrangement. For example, Fisher Ames of Massachusetts declared in 1788: "The state governments are essential parts of the system…The senators represent the sovereignty of the states; they are in the quality of ambassadors of the states...[But suppose] that they [were] to be chosen by the people at large…Whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on who would devolve the duty of defending them against the encroachments of the federal government?"
(10) But in 1913 we rejected this counsel and adopted the 17th Amendment. Since that time, senators have been elected by popular vote-and the states have had no official representation in Washington. The results have been so disastrous that, from the sobering perspective of our day, Jefferson's warning of 1821 seems almost prophetic: "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated."
(11) Let's Give the U.S. Senate Back to the States!
As we noted earlier, the only way to restore American federalism is to reinstate the principles on which it was built. If we want a genuine federal government again, with the balance and controls originally provided by our Constitution, we must repeal the 17th Amendment.
The United States is a republic, not a democracy; we don't need a second House of Representatives. Since all national legislation must be passed by both houses of Congress, why not give the Senate back to the states? As full participants in the legislative process, they could effectively block any laws, taxes, or appropriations which they considered to be unconstitutional or otherwise harmful to the states or the people.
Repealing the 17th Amendment is the safest, most effective and most permanent solution to the current predicament in our federal system. Consider the strategies that the states are now using:
Many of the states have lobbied Congress to reduce the burden of "unfunded mandates" imposed by the central government, and on March 22 President Clinton signed a new law imposing certain restrictions on such mandates. But these restrictions don't go far enough, and they can be eliminated at any time by a simple majority vote in Congress. Even worse, the new legislation does nothing at all about Washington's unlawful seizure of the decision-making powers reserved to the states.
A few states have filed lawsuits against the national government for specific violations of the Constitution. The problem with this approach is that the outcome is in the hands of the federal courts. And as James Madison observed, the legislative and executive branches of government are not the only potential threats to our liberty: "The judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution."
Read more.....http://www.nccs.net/newsletter/apr95nl.html
Should the 17th Amendment be repealed?
By John. W. Dean
FindLaw Columnist
Special to CNN.com
Tuesday, September 24, 2002 Posted: 2:08 PM EDT (1808 GMT)
(FindLaw) -- Federalism, the allocation and balancing of power between state and federal government, has emerged as a central concern of the Supreme Court under Chief Justice William Rehnquist. Slowly, but steadily, the Rehnquist Court has been cutting back federal powers, and protecting state's rights.
Many have wondered what the court is doing. Why are the court's five conservatives -- the Chief Justice himself, along with associate justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- creating this new jurisprudence of federalism?
The answer is simple: they are seeking to fill a void in our constitutional structure, a problem created early in the 20th century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the 17th Amendment.
The amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but democratic. And it is a change whose aftermath may haunt the 21st century.
Concerns about federalism, especially post-September 11
Divisions of power are rooted in our Constitution. Experience had taught the framers the dangers of concentrations of ruling authority, resulting in their ingenious template of checks and balances, with divisions and distributions of power.
Ultimate power in a democracy resides with the people. We are not a pure democracy, however, but rather a confederated republic (one that features, as well, county and local political subdivisions).
Thus, while there is national sovereignty, there is also state sovereignty. Power has been so divided and spread for one reason: to provide for and protect the highest sovereignty -- that of each individual citizen.
Only fools reject the wisdom of this founding principle of defusing power. Yet from the outset there has been debate regarding the appropriate allocation and balancing of these powers. The debate has focused on not only whether a particular matter should be dealt with at the state vs. the national level, but also on how these allocations are adjusted from time to time.
Of late, for example, along with laments for those who tragically lost their lives during the September 11 terrorist attack, there has been widespread concern with new realignments of federal/state powers that have followed in the name of homeland security.
Most significantly, as I discussed in a previous column, Washington is assuming powers that have only previously existed during a congressionally declared war.
Creating the United States Senate: The framers' bicameralism
In designing our constitutional system, the framers sought to remedy the limits of the Articles of Confederation, which created a loose association of states with little central power. The new system, they decided, ought to feature a better allocation of powers -- and the federal government should have the powers "necessary and proper" to perform its envisaged functions. The will of the people should be the foundation, and the foundational institution should be the law-making legislative branch.
Unsurprisingly, the revolutionaries were not very impressed with most aspects of the British model of government. They rejected parliamentary government, with its king or queen and three estates of the realm (lords spiritual, lords temporal, and the commons).
But one feature of the British system, the framers did borrow. That was bicameralism -- a word coined by Brit Jeremy Bentham to describe the division of the legislature into two chambers (or, in Latin, camera).
The British Parliament had its House of Lords as the upper chamber and the House of Commons as the lower chamber. Citizens selected members of the House of Commons. The members of the House of Lords, in contrast, were those who had been titled by a king or queen (lords temporal) and the archbishops and bishops of the Church of England (lords spiritual).
Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by the legislatures of the states. Each state would have two senators, while representatives would be apportioned based on population.
James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."
The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:
In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.
The system as designed by the framers was in place for a century and a quarter, from 1789 until 1913, when the 17th amendment was adopted. As originally designed, the framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.
The cloudy reasons behind the 17th amendment
There is no agreement on why the system of electing senators was changed through the enactment of the 17th Amendment. But there is widespread agreement that the change was to the detriment of the states, and that it played a large part in dramatically changing the role of the national government.
Before the 17th amendment the federal government remained stable and small. Following the amendment's adoption it has grown dramatically.
The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the 17th amendment (along with the 16th Amendment, which created federal income tax and was also adopted in 1913) that was the driving force behind federal expansion.
The amendment took a long time to come. It was not until 1820 that a resolution was introduced in the House of Representatives to amend the Constitution to provide for direct elections of senators. And not until after the Civil War, in 1870, did calls for altering the system begin in earnest. But 43 years passed before the change was actually made.
This lengthy passage of time clouds the causes that provoked the amendment to be proposed and, finally, enacted. Nonetheless, scholars do have a number of theories to explain these developments.
George Mason University law professor Todd Zywicki has assembled an excellent analysis of the recent scholarship on the history of the 17th amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.
Two main 17th amendment theories don't hold water on examination
There have been two principal explanations for changing the Constitution to provide for direct election of senators. Some see the amendment as part of the Progressive movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall and referendums.
Others, however, believe the amendment resulted from the problems the prior constitutional system was creating in state legislatures, who under that system were charged with electing senators. These problems ranged from charges of bribery to unbreakable deadlocks.
Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single senator, not the constitutionally mandated two.
Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the 17th amendment as part of the Progressive movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) -- so that direct democracy as an empowerment of the poor might not have been one of its true goals.
What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a senator -- a far easier remedy than the burdensome process of amending the Constitution that led to the 17th Amendment.
Fortunately, Professor Zywicki offers an explanation for the amendment's enactment that makes much more sense. He contends that the true backers of the 17th amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel -- money.
This explanation troubles many. However, as Zywicki observes, "[a]though some might find this reality 'distasteful,' that does not make it any less accurate."
Should the 17th amendment be repealed?
Those unhappy with the Supreme Court's recent activism regarding federalism should consider joining those who believe the 17th amendment should be repealed. Rather than railing at life-tenured justices who are inevitably going to chart their own courses, critics should focus instead on something they can affect, however difficult a repeal might be.
Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money -- decidedly a good thing.
Returning selection of senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the framers. For progressives -- who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process -- returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.
Profession Zywicki likes this idea as well, but is probably right in finding repeal unlikely. He comments -- and I believe he's got it right -- "Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the 17th amendment."
John W. Dean, a FindLaw columnist, is a former Counsel to the President of the United States.
http://archives.cnn.com/2002/LAW/09/23/findlaw.analysis.dean.17th.amendm
FindLaw Columnist
Special to CNN.com
Tuesday, September 24, 2002 Posted: 2:08 PM EDT (1808 GMT)
(FindLaw) -- Federalism, the allocation and balancing of power between state and federal government, has emerged as a central concern of the Supreme Court under Chief Justice William Rehnquist. Slowly, but steadily, the Rehnquist Court has been cutting back federal powers, and protecting state's rights.
Many have wondered what the court is doing. Why are the court's five conservatives -- the Chief Justice himself, along with associate justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- creating this new jurisprudence of federalism?
The answer is simple: they are seeking to fill a void in our constitutional structure, a problem created early in the 20th century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the 17th Amendment.
The amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but democratic. And it is a change whose aftermath may haunt the 21st century.
Concerns about federalism, especially post-September 11
Divisions of power are rooted in our Constitution. Experience had taught the framers the dangers of concentrations of ruling authority, resulting in their ingenious template of checks and balances, with divisions and distributions of power.
Ultimate power in a democracy resides with the people. We are not a pure democracy, however, but rather a confederated republic (one that features, as well, county and local political subdivisions).
Thus, while there is national sovereignty, there is also state sovereignty. Power has been so divided and spread for one reason: to provide for and protect the highest sovereignty -- that of each individual citizen.
Only fools reject the wisdom of this founding principle of defusing power. Yet from the outset there has been debate regarding the appropriate allocation and balancing of these powers. The debate has focused on not only whether a particular matter should be dealt with at the state vs. the national level, but also on how these allocations are adjusted from time to time.
Of late, for example, along with laments for those who tragically lost their lives during the September 11 terrorist attack, there has been widespread concern with new realignments of federal/state powers that have followed in the name of homeland security.
Most significantly, as I discussed in a previous column, Washington is assuming powers that have only previously existed during a congressionally declared war.
Creating the United States Senate: The framers' bicameralism
In designing our constitutional system, the framers sought to remedy the limits of the Articles of Confederation, which created a loose association of states with little central power. The new system, they decided, ought to feature a better allocation of powers -- and the federal government should have the powers "necessary and proper" to perform its envisaged functions. The will of the people should be the foundation, and the foundational institution should be the law-making legislative branch.
Unsurprisingly, the revolutionaries were not very impressed with most aspects of the British model of government. They rejected parliamentary government, with its king or queen and three estates of the realm (lords spiritual, lords temporal, and the commons).
But one feature of the British system, the framers did borrow. That was bicameralism -- a word coined by Brit Jeremy Bentham to describe the division of the legislature into two chambers (or, in Latin, camera).
The British Parliament had its House of Lords as the upper chamber and the House of Commons as the lower chamber. Citizens selected members of the House of Commons. The members of the House of Lords, in contrast, were those who had been titled by a king or queen (lords temporal) and the archbishops and bishops of the Church of England (lords spiritual).
Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by the legislatures of the states. Each state would have two senators, while representatives would be apportioned based on population.
James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."
The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:
In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.
The system as designed by the framers was in place for a century and a quarter, from 1789 until 1913, when the 17th amendment was adopted. As originally designed, the framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.
The cloudy reasons behind the 17th amendment
There is no agreement on why the system of electing senators was changed through the enactment of the 17th Amendment. But there is widespread agreement that the change was to the detriment of the states, and that it played a large part in dramatically changing the role of the national government.
Before the 17th amendment the federal government remained stable and small. Following the amendment's adoption it has grown dramatically.
The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the 17th amendment (along with the 16th Amendment, which created federal income tax and was also adopted in 1913) that was the driving force behind federal expansion.
The amendment took a long time to come. It was not until 1820 that a resolution was introduced in the House of Representatives to amend the Constitution to provide for direct elections of senators. And not until after the Civil War, in 1870, did calls for altering the system begin in earnest. But 43 years passed before the change was actually made.
This lengthy passage of time clouds the causes that provoked the amendment to be proposed and, finally, enacted. Nonetheless, scholars do have a number of theories to explain these developments.
George Mason University law professor Todd Zywicki has assembled an excellent analysis of the recent scholarship on the history of the 17th amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.
Two main 17th amendment theories don't hold water on examination
There have been two principal explanations for changing the Constitution to provide for direct election of senators. Some see the amendment as part of the Progressive movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall and referendums.
Others, however, believe the amendment resulted from the problems the prior constitutional system was creating in state legislatures, who under that system were charged with electing senators. These problems ranged from charges of bribery to unbreakable deadlocks.
Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single senator, not the constitutionally mandated two.
Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the 17th amendment as part of the Progressive movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) -- so that direct democracy as an empowerment of the poor might not have been one of its true goals.
What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a senator -- a far easier remedy than the burdensome process of amending the Constitution that led to the 17th Amendment.
Fortunately, Professor Zywicki offers an explanation for the amendment's enactment that makes much more sense. He contends that the true backers of the 17th amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel -- money.
This explanation troubles many. However, as Zywicki observes, "[a]though some might find this reality 'distasteful,' that does not make it any less accurate."
Should the 17th amendment be repealed?
Those unhappy with the Supreme Court's recent activism regarding federalism should consider joining those who believe the 17th amendment should be repealed. Rather than railing at life-tenured justices who are inevitably going to chart their own courses, critics should focus instead on something they can affect, however difficult a repeal might be.
Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money -- decidedly a good thing.
Returning selection of senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the framers. For progressives -- who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process -- returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.
Profession Zywicki likes this idea as well, but is probably right in finding repeal unlikely. He comments -- and I believe he's got it right -- "Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the 17th amendment."
John W. Dean, a FindLaw columnist, is a former Counsel to the President of the United States.
http://archives.cnn.com/2002/LAW/09/23/findlaw.analysis.dean.17th.amendm
The Seventeenth Amendment and the Death of Federalism
Ralph A. Rossum
Salvatori Professor of American Constitutionalism
Claremont McKenna College
Claremont, California
Prepared for Delivery at the Panel on "Republicanism, Federalism, and the Constitution"
of the 2003 Fall Regional Meeting of the Philadelphia Society
Williamsburg Woodlands
Williamsburg, Virginia
October 3-4, 2003
My comments today are based largely on a book I recently completed for Lexington Books that explores the Seventeenth Amendment and the death of federalism.[i] Entitled Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy, it is also a critical commentary on the spate of controversial federalism decisions recently handed down by an activist U.S. Supreme Court. Thirteen times since 1976 (and, with much-greater frequency, twelve times since 1992), the Court has invalidated federal laws—many of them passing both houses of Congress by wide margins—in order to preserve what it has described as "the original federal design."[ii] In the book, I challenge the Court’s fundamental jurisprudential assumptions about federalism and argue that (1) the framers did not expect federalism to be protected by an activist Court but rather by constitutional structure—in particular, by the mode of electing the United States Senate;[iii] (2) the political and social forces that culminated in the adoption and ratification of the Seventeenth Amendment eliminated that crucial structural protection and thereby altered the very meaning of federalism itself; and (3), as a consequence, the original federal design has been amended out of existence and is no longer controlling—in the post-Seventeenth Amendment era, it is no more a part of the Constitution the Supreme Court is called upon to apply than, for example, in the post-Thirteen Amendment era, the Constitution’s original fugitive slave clause.
I argue in the book that the framers understood that federalism would be protected by the manner of electing (and, perhaps most importantly, re-electing) the Senate. However, the adoption and ratification of the Seventeenth Amendment, providing for direct election of the Senate,[iv] changed all that.
The Seventeenth Amendment was ultimately approved by the United States Congress and ratified by the states to make the Constitution more democratic. Progressives argued forcefully, persistently, and ultimately successfully that the democratic principle required the Senate to be elected directly by the people rather than indirectly through their state legislatures. The consequences of the ratification of the Seventeenth Amendment on federalism, however, went completely unexplored, and the people, in their desire to make the Constitution more democratic, inattentively abandoned what the framers regarded as the crucial constitutional means for protecting the federal/state balance and the interests of the states as states.
Following ratification of the Seventeenth Amendment, there was a rapid growth of the power of the national government, with the Congress enacting measures that adversely affected the states as states[v]—measures that quite simply the Senate previously would never have approved.[vi] For the initial quarter of a century following the amendment’s ratification in 1913 and then again for the last quarter of a century, the United States Supreme Court’s frequent reaction to this congressional expansion of national power at the expense of the states was and has been to attempt to fill the gap created by the ratification of the Seventeenth Amendment and to protect the original federal design. It has done so by invalidating these congressional measures on the grounds that they violate the principles of dual federalism; go beyond the Court’s narrow construction of the commerce clause; "commandeer" state officials to carry out certain federal mandates; exceed Congress’s enforcement powers under Section 5 of the Fourteenth Amendment, or, most recently, trench on the states’ sovereignty immunity. In so doing, it has repeatedly demonstrated its failure to appreciate that the Seventeenth Amendment not only eliminated the primary structural support for federalism but, in so doing, altered the very nature and meaning of federalism itself.
There is irony in all of this: An amendment, intended to promote democracy, even at the expense of federalism, has been undermined by an activist Court, intent on protecting federalism, even at the expense of the democratic principle. The irony is heightened when it is recalled that federalism was originally protected both structurally and democratically— the Senate, after all, was elected by popularly-elected state legislatures. Today, federalism is protected neither structurally nor democratically—the ratification of the Seventeenth Amendment means that the fate of traditional state prerogatives depends entirely on either congressional sufferance (what the Court calls "legislative grace") or whether an occasional Supreme Court majority can be mustered.[vii]
The book argues that federalism as it was understood by the framers—i.e., the "original federal design"—effectively died as a result of the social and political forces that resulted in the adoption and ratification of the Seventeenth Amendment. The Court, however, has had trouble learning this lesson—it took a quarter of a century to learn it initially, and, during the most recent quarter century, it has repeatedly forgotten it. It argues that the Court—typically by the slimmest of majorities—has refused to acknowledge that its efforts to revive federalism—by drawing lines between federal and state power that the framers denied could be drawn and that they never intended for the Court to try to draw—are merely futile attempts to breathe life into a corpse.
My intention today is twofold: (1) to explain why and how the framers understood that the mode of electing the Senate (rather than reliance on the Supreme Court) would be the principal means not only for protecting the interests of the states as states but also for identifying the line demarcating federal from state powers; and (2) to explore the political and social forces at work in the states that ultimately led to the adoption and ratification of the Seventeenth Amendment and, thereby, to the public’s inattentive alteration of the structural protection of federalism.
The framers understood that federalism would be protected structurally—the mode of electing (and re-electing) the Senate making it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states.[viii] The debates in the Constitutional Convention make this abundantly clear.
On May 31, 1787, very early in the Constitutional Convention, the delegates rejected Resolution 5 of the Virginia Plan that proposed that the "second branch of the National Legislature ought to be elected by those of the first," doing so by a vote of seven states "no," three states "yes." Instead on June 7, they unanimously accepted a motion by John Dickinson and seconded by Roger Sherman providing for the appointment of the Senate by the state legislatures.
The delegates were apparently persuaded by Dickinson’s argument that the "sense of the States would be better collected through their Governments than immediately from the people at large" and by George Mason’s observation that election of the Senate by state legislatures would provide the states with "some means of defending themselves against encroachments of the National Government. In every other department, we have studiously endeavored to provide for its self-defense. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than giving them some share in, or rather making them a constituent part of, the Nat’l Establishment?"
On June 20, James Wilson, a passionate nationalist, warned his fellow delegates that "a jealousy would exist between the State Legislatures & the General Legislature." He observed "that the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Genl. or State Legislatures, provided it be exercised most for his happiness." On the other hand, "[h]is representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl. with the eye of a jealous rival." Wilson’s attack, however, utterly failed, not because the delegates disputed his analysis but because they approved the outcome. Since they were committed to preserving the states as political entities, they found persuasive Mason’s assertions that the states would need the "power of self-defense" [ix] and that "the only mode left of giving it to them was by allowing them to appoint the second branch of the National Legislature." Accordingly, on June 25, the Convention reaffirmed its previous decision to elect the Senate by state legislatures by a vote of nine states "yes," two states "no."[x]
The service rendered to federalism by the mode of electing the Senate was also repeatedly acknowledged and proclaimed during the ratification debates. For example, in "An Examination of the Constitution of the United States," Tench Coxe, writing under the pseudonym of "An American Citizen" in Philadelphia’s Independent Gazetteer, noted that the members of the Senate will "feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence." In the Massachusetts Ratifying Convention, Fisher Ames described senators elected by their state legislatures as "ambassadors of the states," and Rufus King declared that "the senators will have a powerful check in those men [i.e., those state legislators] who wish for their seats, who will watch their whole conduct in the general government, and will give alarm in case of misbehavior."
In Federalist No. 45, Madison declared that, since "[t]he Senate will be elected absolutely and exclusively by the State Legislatures," it "will owe its existence more or less to the favor of the State Governments, and must consequently feel a dependence, which [he regretted] is much more likely to beget a disposition too obsequious, than too overbearing towards them." In Federalist No. 46, he further noted that, if the House of Representatives were to sponsor legislation that encroached on the authority of the states, "a few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter." The Senate, he assured his readers, would be "disinclined to invade the rights of the individual States, or the prerogatives of their governments." In Federalist No. 59, Alexander Hamilton likewise emphasized that the appointment of senators by state legislatures secured "a place in the organization of the National Government" for the "States in their political capacities." He continued: "So far as [the mode of electing the Senate] . . . may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision." Finally, in Federalist No. 62, Madison praised "the appointment of senators by state legislatures" as not only "the most congenial with the public opinion" but also "giving to state governments such an agency in the formation of the federal government, as must secure the authority of the former."
Read more.......http://www.freerepublic.com/focus/f-news/996315/posts
Salvatori Professor of American Constitutionalism
Claremont McKenna College
Claremont, California
Prepared for Delivery at the Panel on "Republicanism, Federalism, and the Constitution"
of the 2003 Fall Regional Meeting of the Philadelphia Society
Williamsburg Woodlands
Williamsburg, Virginia
October 3-4, 2003
My comments today are based largely on a book I recently completed for Lexington Books that explores the Seventeenth Amendment and the death of federalism.[i] Entitled Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy, it is also a critical commentary on the spate of controversial federalism decisions recently handed down by an activist U.S. Supreme Court. Thirteen times since 1976 (and, with much-greater frequency, twelve times since 1992), the Court has invalidated federal laws—many of them passing both houses of Congress by wide margins—in order to preserve what it has described as "the original federal design."[ii] In the book, I challenge the Court’s fundamental jurisprudential assumptions about federalism and argue that (1) the framers did not expect federalism to be protected by an activist Court but rather by constitutional structure—in particular, by the mode of electing the United States Senate;[iii] (2) the political and social forces that culminated in the adoption and ratification of the Seventeenth Amendment eliminated that crucial structural protection and thereby altered the very meaning of federalism itself; and (3), as a consequence, the original federal design has been amended out of existence and is no longer controlling—in the post-Seventeenth Amendment era, it is no more a part of the Constitution the Supreme Court is called upon to apply than, for example, in the post-Thirteen Amendment era, the Constitution’s original fugitive slave clause.
I argue in the book that the framers understood that federalism would be protected by the manner of electing (and, perhaps most importantly, re-electing) the Senate. However, the adoption and ratification of the Seventeenth Amendment, providing for direct election of the Senate,[iv] changed all that.
The Seventeenth Amendment was ultimately approved by the United States Congress and ratified by the states to make the Constitution more democratic. Progressives argued forcefully, persistently, and ultimately successfully that the democratic principle required the Senate to be elected directly by the people rather than indirectly through their state legislatures. The consequences of the ratification of the Seventeenth Amendment on federalism, however, went completely unexplored, and the people, in their desire to make the Constitution more democratic, inattentively abandoned what the framers regarded as the crucial constitutional means for protecting the federal/state balance and the interests of the states as states.
Following ratification of the Seventeenth Amendment, there was a rapid growth of the power of the national government, with the Congress enacting measures that adversely affected the states as states[v]—measures that quite simply the Senate previously would never have approved.[vi] For the initial quarter of a century following the amendment’s ratification in 1913 and then again for the last quarter of a century, the United States Supreme Court’s frequent reaction to this congressional expansion of national power at the expense of the states was and has been to attempt to fill the gap created by the ratification of the Seventeenth Amendment and to protect the original federal design. It has done so by invalidating these congressional measures on the grounds that they violate the principles of dual federalism; go beyond the Court’s narrow construction of the commerce clause; "commandeer" state officials to carry out certain federal mandates; exceed Congress’s enforcement powers under Section 5 of the Fourteenth Amendment, or, most recently, trench on the states’ sovereignty immunity. In so doing, it has repeatedly demonstrated its failure to appreciate that the Seventeenth Amendment not only eliminated the primary structural support for federalism but, in so doing, altered the very nature and meaning of federalism itself.
There is irony in all of this: An amendment, intended to promote democracy, even at the expense of federalism, has been undermined by an activist Court, intent on protecting federalism, even at the expense of the democratic principle. The irony is heightened when it is recalled that federalism was originally protected both structurally and democratically— the Senate, after all, was elected by popularly-elected state legislatures. Today, federalism is protected neither structurally nor democratically—the ratification of the Seventeenth Amendment means that the fate of traditional state prerogatives depends entirely on either congressional sufferance (what the Court calls "legislative grace") or whether an occasional Supreme Court majority can be mustered.[vii]
The book argues that federalism as it was understood by the framers—i.e., the "original federal design"—effectively died as a result of the social and political forces that resulted in the adoption and ratification of the Seventeenth Amendment. The Court, however, has had trouble learning this lesson—it took a quarter of a century to learn it initially, and, during the most recent quarter century, it has repeatedly forgotten it. It argues that the Court—typically by the slimmest of majorities—has refused to acknowledge that its efforts to revive federalism—by drawing lines between federal and state power that the framers denied could be drawn and that they never intended for the Court to try to draw—are merely futile attempts to breathe life into a corpse.
My intention today is twofold: (1) to explain why and how the framers understood that the mode of electing the Senate (rather than reliance on the Supreme Court) would be the principal means not only for protecting the interests of the states as states but also for identifying the line demarcating federal from state powers; and (2) to explore the political and social forces at work in the states that ultimately led to the adoption and ratification of the Seventeenth Amendment and, thereby, to the public’s inattentive alteration of the structural protection of federalism.
The framers understood that federalism would be protected structurally—the mode of electing (and re-electing) the Senate making it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states.[viii] The debates in the Constitutional Convention make this abundantly clear.
On May 31, 1787, very early in the Constitutional Convention, the delegates rejected Resolution 5 of the Virginia Plan that proposed that the "second branch of the National Legislature ought to be elected by those of the first," doing so by a vote of seven states "no," three states "yes." Instead on June 7, they unanimously accepted a motion by John Dickinson and seconded by Roger Sherman providing for the appointment of the Senate by the state legislatures.
The delegates were apparently persuaded by Dickinson’s argument that the "sense of the States would be better collected through their Governments than immediately from the people at large" and by George Mason’s observation that election of the Senate by state legislatures would provide the states with "some means of defending themselves against encroachments of the National Government. In every other department, we have studiously endeavored to provide for its self-defense. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than giving them some share in, or rather making them a constituent part of, the Nat’l Establishment?"
On June 20, James Wilson, a passionate nationalist, warned his fellow delegates that "a jealousy would exist between the State Legislatures & the General Legislature." He observed "that the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Genl. or State Legislatures, provided it be exercised most for his happiness." On the other hand, "[h]is representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl. with the eye of a jealous rival." Wilson’s attack, however, utterly failed, not because the delegates disputed his analysis but because they approved the outcome. Since they were committed to preserving the states as political entities, they found persuasive Mason’s assertions that the states would need the "power of self-defense" [ix] and that "the only mode left of giving it to them was by allowing them to appoint the second branch of the National Legislature." Accordingly, on June 25, the Convention reaffirmed its previous decision to elect the Senate by state legislatures by a vote of nine states "yes," two states "no."[x]
The service rendered to federalism by the mode of electing the Senate was also repeatedly acknowledged and proclaimed during the ratification debates. For example, in "An Examination of the Constitution of the United States," Tench Coxe, writing under the pseudonym of "An American Citizen" in Philadelphia’s Independent Gazetteer, noted that the members of the Senate will "feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence." In the Massachusetts Ratifying Convention, Fisher Ames described senators elected by their state legislatures as "ambassadors of the states," and Rufus King declared that "the senators will have a powerful check in those men [i.e., those state legislators] who wish for their seats, who will watch their whole conduct in the general government, and will give alarm in case of misbehavior."
In Federalist No. 45, Madison declared that, since "[t]he Senate will be elected absolutely and exclusively by the State Legislatures," it "will owe its existence more or less to the favor of the State Governments, and must consequently feel a dependence, which [he regretted] is much more likely to beget a disposition too obsequious, than too overbearing towards them." In Federalist No. 46, he further noted that, if the House of Representatives were to sponsor legislation that encroached on the authority of the states, "a few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter." The Senate, he assured his readers, would be "disinclined to invade the rights of the individual States, or the prerogatives of their governments." In Federalist No. 59, Alexander Hamilton likewise emphasized that the appointment of senators by state legislatures secured "a place in the organization of the National Government" for the "States in their political capacities." He continued: "So far as [the mode of electing the Senate] . . . may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision." Finally, in Federalist No. 62, Madison praised "the appointment of senators by state legislatures" as not only "the most congenial with the public opinion" but also "giving to state governments such an agency in the formation of the federal government, as must secure the authority of the former."
Read more.......http://www.freerepublic.com/focus/f-news/996315/posts
The Road to Mass Democracy
Original Intent and the Seventeenth Amendment:
The Independent Review: The Independent Institute
The Constitution of 1787 provided for the appointment of United States senators by state legislatures. In 1913, the Seventeenth Amendment was ratified, installing the current regime of direct election of U.S. senators.
The bloated and special-interest-driven nature of the federal government during this century has led scholars in recent years to reexamine the original framework of the Senate and to consider the causes of the Seventeenth Amendment and its consequences for U.S. twentieth-century politics and society. C. H. Hoebeke’s The Road to Mass Democracy is an important addition to this growing literature.
According to Hoebeke, the Senate was explicitly modeled after the British House of Lords. It was intended to be an upper-class, conservative body that would check the populism of the democratic House of Representatives. State legislatures would serve as intermediaries identifying and elevating to the Senate the “best men,” marked by ability, virtue, and achievement. The Senate would be a “natural” aristocracy, “an agency which would fulfill a function similar to that of the [House of] Lords in checking the runaway tendencies of popular rule, but which at the same time would remain a non-hereditary body” (p. 45).
Hoebeke argues that the idea of using state legislatures as the instrument to create an anti-democratic and conservative body was flawed from the outset. After all, the Constitution itself was a reaction to the democratic excesses of the states and their governments during the period of the Articles of Confederation. The notion that those same state legislatures would appoint senators who would buck a popular tide was absurd. As he demonstrates, even after the adoption of the Constitution the state governments remained far more receptive than the national government to populist reforms.
Despite these flaws, appointment of senators by state legislatures was one of the least controversial elements of the new Constitution. Popular election of senators was proposed at the Constitutional Convention but received almost no support. Beginning after the Civil War, however, and escalating through the late nineteenth century, proposals for direct election became increasingly frequent, until the Seventeenth Amendment was finally adopted.
Traditional explanations for the passage of the Seventeenth Amendment can be divided into two categories: “internal” and “external” (Todd J. Zywicki, “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment,” Oregon Law Review 73 [Winter 1994]: 1007). Neither explanation, however, fully explains the genesis of the amendment.
Internal theorists see the Seventeenth Amendment as a response to the perceived evils of the original method of electing senators, which over time was alleged to have become marked by corruption and gridlock. In some instances the battles in the state legislatures became so charged that no senator was elected at all, resulting in a vacancy in that seat. As Hoebeke notes, these internal explanations overstate the problems with the original system, as most elections were uneventful. Internal models also provide no explanation for the belief that direct election would eliminate corruption and the influence of money in the electoral process. History has shown that direct election increased reliance on political machines to organize voters and increased the importance of raising money to run statewide popular campaigns. Moreover, less intrusive remedies for perceived problems were available, such as repeal of a federal law requiring election of senators by majority vote of the state legislature, rather than by plurality.
External theorists see the Seventeenth Amendment as a footnote to history, a small part of the larger democratizing influence of the Progressive movement. Traditionally, most exponents of external theories have seen increasing democracy as a positive development, as the Seventeenth Amendment supposedly would remove control of the Senate from the smoke-filled back rooms of political manipulators and machines, replacing this corrupt regime with the beneficent sovereignty of “the people.” Hoebeke is an externalist, as he sees the genesis of the Seventeenth Amendment in an ideological commitment to democratic principles and ideals, and especially in Rousseau’s concept of the “general will.” Unlike the Progressives, however, Hoebeke views this commitment to democracy as misplaced and as having consequences unforeseen by proponents of direct election.
For both Hoebeke and the Progressives, direct election of U.S. senators was to be the leading edge of a movement to bring to the federal government the democratic changes occurring on the state level, such as recall, referendum, and judicial elections. But nothing of the sort ever happened. There is no national recall, referendum, or election of federal judges; just direct election of senators. Moreover, the evolution of the electoral college into a democratic institution suggests an alternative evolutionary model for the Senate. In fact, by 1913 most states had adopted mechanisms to allow the people to vote directly for senators, thereby seemingly obviating the need for a constitutional amendment. Thus, the external explanations proffered by Hoebeke and the Progressives are incomplete.
Perhaps a more fundamental problem with Hoebeke’s thesis is his premise that the primary purpose of indirect election by state legislatures was to create an American House of Lords. Emphasizing the aristocratic nature of the Senate causes Hoebeke to minimize the role of the Senate in the structure of the Constitution. In the original Constitution, the Senate was an essential element of both federalism and bicameralism. Hoebeke recognizes these structural features but discounts their importance. In doing so, he ignores a critical element in the story of the Seventeenth Amendment.
Jay S. Bybee (“Ulysses at the Mast: Democracy, Federalism and the Sirens’ Song of the Seventeenth Amendment,” Northwestern University Law Review 91 [Forthcoming, Winter 1997]) argues that the primary purpose of having state legislatures elect senators was to give the states a constituent part in the federal government, thereby appeasing the anti-federalists, protecting the states from federal encroachment, and creating and preserving the structure of federalism. Senators were seen as, and acted as, the states’ “ambassadors” to the federal government, representing the states and their interests.
The Senate was also an important part of the bicameral legislature. The ability of factions or special interests to capture control of the federal government was mitigated by requiring bills to receive the approval of the public, speaking through their representatives in the House, and the approval of the state legislatures, speaking through their representatives in the Senate. The transition to direct election made the constituencies represented in the House and Senate more similar, thereby facilitating creation of logrolling agreements across the two houses of the national legislature. Moreover, it made the procurement of special-interest legislation easier by allowing special interests to lobby the Senate directly, rather than having to proceed through the intermediaries of the state legislatures. In an era of increasing interstate commerce, accompanied by the development of groups whose interests crossed state lines, these “economies of scale” in lobbying were critical. Direct election thereby weakened the protections of bicameralism and made special-interest legislation easier to obtain (Zywicki, pp. 1039–47).
In preserving federalism and bicameralism, the Senate did an extraordinary job before 1913. Throughout the nineteenth century, the federal government remained small and special-interest legislation was limited. The activity of the federal government was largely confined to the provision of “public goods” such as defense and international relations (Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government. New York: Oxford University Press, 1987, p. 114). Although the federal government grew during national crises such as war, the passing of the crisis brought a return to a small federal government (Roger E. Meiners, “Economic Considerations in History: Theory and the Little Practice,” in Economic Imperialism, edited by G. Radnitzky and P. Bernholz. New York: Paragon House Publishers, 1987, p. 95). The so-called “ratchet effect” of federal intervention persisting after the dissipation of the crisis that spawned it was scarcely evident in American history before World War I (Higgs, p. 30). The role of the Senate in thwarting special-interest activity on the national level and protecting the autonomy of the states was critical in preserving this arrangement.
The Seventeenth Amendment was not just a rebellion of “the people” against an inherently aristocratic institution, as Hoebeke suggests. It was primarily a rebellion of emerging special interests against federalism and bicameralism, which restrained the ability of the federal government to produce legislation favorable to those interests. Changing the method of electing senators changed the rules of the game for seeking favorable legislation from the federal government, fostering the massive expansion of the federal government in the twentieth century. Even if Hoebeke has failed to tell the full story of the Seventeenth Amendment, however, he has made an important contribution to our understanding of the system of representative democracy established by the Constitution and the forces that shape its evolution.
http://www.independent.org/publications/tir/article.asp?a=450
The Independent Review: The Independent Institute
The Constitution of 1787 provided for the appointment of United States senators by state legislatures. In 1913, the Seventeenth Amendment was ratified, installing the current regime of direct election of U.S. senators.
The bloated and special-interest-driven nature of the federal government during this century has led scholars in recent years to reexamine the original framework of the Senate and to consider the causes of the Seventeenth Amendment and its consequences for U.S. twentieth-century politics and society. C. H. Hoebeke’s The Road to Mass Democracy is an important addition to this growing literature.
According to Hoebeke, the Senate was explicitly modeled after the British House of Lords. It was intended to be an upper-class, conservative body that would check the populism of the democratic House of Representatives. State legislatures would serve as intermediaries identifying and elevating to the Senate the “best men,” marked by ability, virtue, and achievement. The Senate would be a “natural” aristocracy, “an agency which would fulfill a function similar to that of the [House of] Lords in checking the runaway tendencies of popular rule, but which at the same time would remain a non-hereditary body” (p. 45).
Hoebeke argues that the idea of using state legislatures as the instrument to create an anti-democratic and conservative body was flawed from the outset. After all, the Constitution itself was a reaction to the democratic excesses of the states and their governments during the period of the Articles of Confederation. The notion that those same state legislatures would appoint senators who would buck a popular tide was absurd. As he demonstrates, even after the adoption of the Constitution the state governments remained far more receptive than the national government to populist reforms.
Despite these flaws, appointment of senators by state legislatures was one of the least controversial elements of the new Constitution. Popular election of senators was proposed at the Constitutional Convention but received almost no support. Beginning after the Civil War, however, and escalating through the late nineteenth century, proposals for direct election became increasingly frequent, until the Seventeenth Amendment was finally adopted.
Traditional explanations for the passage of the Seventeenth Amendment can be divided into two categories: “internal” and “external” (Todd J. Zywicki, “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment,” Oregon Law Review 73 [Winter 1994]: 1007). Neither explanation, however, fully explains the genesis of the amendment.
Internal theorists see the Seventeenth Amendment as a response to the perceived evils of the original method of electing senators, which over time was alleged to have become marked by corruption and gridlock. In some instances the battles in the state legislatures became so charged that no senator was elected at all, resulting in a vacancy in that seat. As Hoebeke notes, these internal explanations overstate the problems with the original system, as most elections were uneventful. Internal models also provide no explanation for the belief that direct election would eliminate corruption and the influence of money in the electoral process. History has shown that direct election increased reliance on political machines to organize voters and increased the importance of raising money to run statewide popular campaigns. Moreover, less intrusive remedies for perceived problems were available, such as repeal of a federal law requiring election of senators by majority vote of the state legislature, rather than by plurality.
External theorists see the Seventeenth Amendment as a footnote to history, a small part of the larger democratizing influence of the Progressive movement. Traditionally, most exponents of external theories have seen increasing democracy as a positive development, as the Seventeenth Amendment supposedly would remove control of the Senate from the smoke-filled back rooms of political manipulators and machines, replacing this corrupt regime with the beneficent sovereignty of “the people.” Hoebeke is an externalist, as he sees the genesis of the Seventeenth Amendment in an ideological commitment to democratic principles and ideals, and especially in Rousseau’s concept of the “general will.” Unlike the Progressives, however, Hoebeke views this commitment to democracy as misplaced and as having consequences unforeseen by proponents of direct election.
For both Hoebeke and the Progressives, direct election of U.S. senators was to be the leading edge of a movement to bring to the federal government the democratic changes occurring on the state level, such as recall, referendum, and judicial elections. But nothing of the sort ever happened. There is no national recall, referendum, or election of federal judges; just direct election of senators. Moreover, the evolution of the electoral college into a democratic institution suggests an alternative evolutionary model for the Senate. In fact, by 1913 most states had adopted mechanisms to allow the people to vote directly for senators, thereby seemingly obviating the need for a constitutional amendment. Thus, the external explanations proffered by Hoebeke and the Progressives are incomplete.
Perhaps a more fundamental problem with Hoebeke’s thesis is his premise that the primary purpose of indirect election by state legislatures was to create an American House of Lords. Emphasizing the aristocratic nature of the Senate causes Hoebeke to minimize the role of the Senate in the structure of the Constitution. In the original Constitution, the Senate was an essential element of both federalism and bicameralism. Hoebeke recognizes these structural features but discounts their importance. In doing so, he ignores a critical element in the story of the Seventeenth Amendment.
Jay S. Bybee (“Ulysses at the Mast: Democracy, Federalism and the Sirens’ Song of the Seventeenth Amendment,” Northwestern University Law Review 91 [Forthcoming, Winter 1997]) argues that the primary purpose of having state legislatures elect senators was to give the states a constituent part in the federal government, thereby appeasing the anti-federalists, protecting the states from federal encroachment, and creating and preserving the structure of federalism. Senators were seen as, and acted as, the states’ “ambassadors” to the federal government, representing the states and their interests.
The Senate was also an important part of the bicameral legislature. The ability of factions or special interests to capture control of the federal government was mitigated by requiring bills to receive the approval of the public, speaking through their representatives in the House, and the approval of the state legislatures, speaking through their representatives in the Senate. The transition to direct election made the constituencies represented in the House and Senate more similar, thereby facilitating creation of logrolling agreements across the two houses of the national legislature. Moreover, it made the procurement of special-interest legislation easier by allowing special interests to lobby the Senate directly, rather than having to proceed through the intermediaries of the state legislatures. In an era of increasing interstate commerce, accompanied by the development of groups whose interests crossed state lines, these “economies of scale” in lobbying were critical. Direct election thereby weakened the protections of bicameralism and made special-interest legislation easier to obtain (Zywicki, pp. 1039–47).
In preserving federalism and bicameralism, the Senate did an extraordinary job before 1913. Throughout the nineteenth century, the federal government remained small and special-interest legislation was limited. The activity of the federal government was largely confined to the provision of “public goods” such as defense and international relations (Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government. New York: Oxford University Press, 1987, p. 114). Although the federal government grew during national crises such as war, the passing of the crisis brought a return to a small federal government (Roger E. Meiners, “Economic Considerations in History: Theory and the Little Practice,” in Economic Imperialism, edited by G. Radnitzky and P. Bernholz. New York: Paragon House Publishers, 1987, p. 95). The so-called “ratchet effect” of federal intervention persisting after the dissipation of the crisis that spawned it was scarcely evident in American history before World War I (Higgs, p. 30). The role of the Senate in thwarting special-interest activity on the national level and protecting the autonomy of the states was critical in preserving this arrangement.
The Seventeenth Amendment was not just a rebellion of “the people” against an inherently aristocratic institution, as Hoebeke suggests. It was primarily a rebellion of emerging special interests against federalism and bicameralism, which restrained the ability of the federal government to produce legislation favorable to those interests. Changing the method of electing senators changed the rules of the game for seeking favorable legislation from the federal government, fostering the massive expansion of the federal government in the twentieth century. Even if Hoebeke has failed to tell the full story of the Seventeenth Amendment, however, he has made an important contribution to our understanding of the system of representative democracy established by the Constitution and the forces that shape its evolution.
http://www.independent.org/publications/tir/article.asp?a=450
Senators and Special Interests
A Public Choice Analysis
of the Seventeenth Amendment
by: Todd J Zywicki
This is the PDF book link: http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf
of the Seventeenth Amendment
by: Todd J Zywicki
This is the PDF book link: http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf
State Laws and the Independent Judiciary
An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional
*Donald J. Kochan
Chapman University School of Law
*Albany Law Review, Vol. 66, No. 4, 2003
Chapman University Law Research Paper No. 08-12
Number of Pages in PDF File: 43
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=907518 [Link]
Podcast:
http://repealthe17thamendment.blogspot.com/
*Donald J. Kochan
Chapman University School of Law
*Albany Law Review, Vol. 66, No. 4, 2003
Chapman University Law Research Paper No. 08-12
Number of Pages in PDF File: 43
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=907518 [Link]
Podcast:
http://repealthe17thamendment.blogspot.com/
Below are older version posts explaining the 17th Amendment.
Preface
The Senate today has become a blocking tool for the party in power. It refuses to hear legislation from the House, it has not passed a budget in over 3 years! The senators, being far removed from their respective states are much more susceptible to the special interest monies and lobbying efforts and they are pressured by groups within their own body and by the White House. No piece of legislation better illustrates this failing of the modern day Senate than Obamacare. Remember Harry Reid’s closed-door and the behind-the-scenes drafting of the law; Nancy Pelosi’s famous remark, “we will have to pass the bill before we can know what’s in it”, the last minute voting maneuvers with no congressional floor debate allowed or the public posting at the last minute and frenzied study through the night by news media and private citizens. There were also the bribes - through state monetary rewards - of senators for their votes “the Cornhusker kick-back and the Louisiana Purchase”. Even though the following election would cost many their political careers, Obamacare is now law; an election could not reverse that. This one piece of legislation is the most perfect and definitive example of Senatorial defiance of the People’s will. Over 70% of the American people registered their objection to it -to their discredit, the Senate still passed it over these objections.
Our Founding Fathers had just fought a war of “independence” from just such an oppressive government and were determined to fashion a new government that would NEVER be able to oppress its people again!
The following video is good for understanding the 17th Amendment.
The Senate today has become a blocking tool for the party in power. It refuses to hear legislation from the House, it has not passed a budget in over 3 years! The senators, being far removed from their respective states are much more susceptible to the special interest monies and lobbying efforts and they are pressured by groups within their own body and by the White House. No piece of legislation better illustrates this failing of the modern day Senate than Obamacare. Remember Harry Reid’s closed-door and the behind-the-scenes drafting of the law; Nancy Pelosi’s famous remark, “we will have to pass the bill before we can know what’s in it”, the last minute voting maneuvers with no congressional floor debate allowed or the public posting at the last minute and frenzied study through the night by news media and private citizens. There were also the bribes - through state monetary rewards - of senators for their votes “the Cornhusker kick-back and the Louisiana Purchase”. Even though the following election would cost many their political careers, Obamacare is now law; an election could not reverse that. This one piece of legislation is the most perfect and definitive example of Senatorial defiance of the People’s will. Over 70% of the American people registered their objection to it -to their discredit, the Senate still passed it over these objections.
Our Founding Fathers had just fought a war of “independence” from just such an oppressive government and were determined to fashion a new government that would NEVER be able to oppress its people again!
The following video is good for understanding the 17th Amendment.
Overview
The 17th Amendment of the U. S. Constitution was ratified in May, 1913 under President Woodrow Wilson – one of the most Progressive presidents our Country has had. From the 1880’s into the 1920’s, the “Progressive and Socialist movement” grew from some well- known political names like Teddy Roosevelt, Woodrow Wilson, Robert LaFollette, John Dewey and William Jennings Bryan. The goal was to convince others that the Constitution and the Declaration of Independence that promoted “separation of powers”, “individual natural rights of the people” and “Checks and balances” were roadblocks to their regulatory and redistributive policy ambitions.
And yes – this started in the 1880’s! It took less than 100 years for politicians to come to their own and realize the power of their organization (government). As with all politics, the system becomes corrupted and the politicians are more worried about party and personal power than having a good government. Amazingly, these politicians have “learned” how to argue an amendment to the Constitution well! But, until you understand all the “backstage” implications, and perhaps their “real motives” for their arguments, the total “picture” is not yet complete.
Let’s take a look behind the “stage”. In the original Constitution, our Founding Fathers gave the state governments a strong voice in national government by requiring the states to select two Senators per state chosen by the STATE legislature. See Article 1, Section 3 of the Constitution. Their reasoning made sense. One of the Founders’ basic beliefs was: when government power is joined and unlimited, it is insensitive to the needs of the governed (the people). They wanted to prevent overreach of the government and spread the power as widely as possible through a “structured” opposition of natural self-interests. This reasoning was focused on the checks and balances system embraced by the Founders.
The two Senators would remain in their own states so they could live among the people they represented. The Senators would therefore shop at the peoples’ stores and socialize in the peoples’ homes, etc. Basically, the Founders’ saw that national sovereignty as well as state sovereignty would fit well within a “checks and balances” system.
The 17th was also “sold” as one man one vote. This theory exists in the House of Representatives and the State Legislatures. It was also presented as a much preferred way of direct voting over the “onerous” method at the state level. The Constitution is a COMPACT of STATES and the Senate was designed to give each State an EQUAL vote in the Federal Government. This was to protect the States from laws like the UNFUNDED MANDATES that Congress now passes on to the States; if the Senators were the proxies (fiduciaries) of the State Legislature now, would they ever vote to overpower the State Legislatures and local governments? Before the 17thAmendment, there were cases of political favor and corruption within the state levels of government. The problems ranged from “charges” of bribery to unbreakable deadlocks. There also was an electoral college tie.
The Progressive and Socialists, as well as the Communist Parties were making their inroads into the political landscape….. and special interests – the power grabbers – argued that if you moved the state representation of Senators into the centralized wing, and allowed the people to vote for their Senators, the people would think they were more involved because of the popular vote. In actuality, this action empowered the political parties and created the environment ripe for special interests and (lobbyists) who could effect popular elections with incentives from the “give me’s”. They could also promote as a party, and effect that legislation at the federal level. Uh-oh!! Progressive and socialist ideological implications are gained from the power-grab and when you combine the shift in government balance from the 14th, with the taxing power of the 16th, and finally, the centralized inclusion of the Senate at the federal level in Congress, these 3 amendments destroyed the original intent and the principles of the Constitution as it was written.
It was little debated at the time and its implications to federalism were scarcely considered. The People were presented with the idea that the 17th promoted national unity and would serve as a deterrent to corruption and elitism.
So was born the 17th Amendment that brought a different political direction to the legislative process – instead of state-up government – the 17th would make it federal-down to state. This amendment created the same form of government that they had fought a war of independence from!!
Experience had taught the Founders the dangers of applications of ruling authority which resulted in their ingenious template of “checks and balances”, with divisions and distributions of power. As James Madison stated in Federalist 10, “Before taking effect, legislation would have to be ratified by two independent power sources: the people’s representatives in the House and the state legislatures’ agents in the Senate.” So you see, as originally designed, the Founders’ system BOTH protected nationalism and ensured that relatively few benefits would be provided to “special interests”.
There is widespread agreement that the 17th Amendment “change” was to the detriment of the states, and that it played a large part in the dramatically changing the role of the national government! To be elected a U. S. Senator today, one must have millions of dollars and be a “darling” of the major media outlets plus being beholden to the corruption in the financial/industrial networks.
The problems cited under the original Constitution’s Senate structure pale in comparison to the effects of the 17th Amendment on today’s government. - M.W.
The 17th Amendment of the U. S. Constitution was ratified in May, 1913 under President Woodrow Wilson – one of the most Progressive presidents our Country has had. From the 1880’s into the 1920’s, the “Progressive and Socialist movement” grew from some well- known political names like Teddy Roosevelt, Woodrow Wilson, Robert LaFollette, John Dewey and William Jennings Bryan. The goal was to convince others that the Constitution and the Declaration of Independence that promoted “separation of powers”, “individual natural rights of the people” and “Checks and balances” were roadblocks to their regulatory and redistributive policy ambitions.
And yes – this started in the 1880’s! It took less than 100 years for politicians to come to their own and realize the power of their organization (government). As with all politics, the system becomes corrupted and the politicians are more worried about party and personal power than having a good government. Amazingly, these politicians have “learned” how to argue an amendment to the Constitution well! But, until you understand all the “backstage” implications, and perhaps their “real motives” for their arguments, the total “picture” is not yet complete.
Let’s take a look behind the “stage”. In the original Constitution, our Founding Fathers gave the state governments a strong voice in national government by requiring the states to select two Senators per state chosen by the STATE legislature. See Article 1, Section 3 of the Constitution. Their reasoning made sense. One of the Founders’ basic beliefs was: when government power is joined and unlimited, it is insensitive to the needs of the governed (the people). They wanted to prevent overreach of the government and spread the power as widely as possible through a “structured” opposition of natural self-interests. This reasoning was focused on the checks and balances system embraced by the Founders.
The two Senators would remain in their own states so they could live among the people they represented. The Senators would therefore shop at the peoples’ stores and socialize in the peoples’ homes, etc. Basically, the Founders’ saw that national sovereignty as well as state sovereignty would fit well within a “checks and balances” system.
The 17th was also “sold” as one man one vote. This theory exists in the House of Representatives and the State Legislatures. It was also presented as a much preferred way of direct voting over the “onerous” method at the state level. The Constitution is a COMPACT of STATES and the Senate was designed to give each State an EQUAL vote in the Federal Government. This was to protect the States from laws like the UNFUNDED MANDATES that Congress now passes on to the States; if the Senators were the proxies (fiduciaries) of the State Legislature now, would they ever vote to overpower the State Legislatures and local governments? Before the 17thAmendment, there were cases of political favor and corruption within the state levels of government. The problems ranged from “charges” of bribery to unbreakable deadlocks. There also was an electoral college tie.
The Progressive and Socialists, as well as the Communist Parties were making their inroads into the political landscape….. and special interests – the power grabbers – argued that if you moved the state representation of Senators into the centralized wing, and allowed the people to vote for their Senators, the people would think they were more involved because of the popular vote. In actuality, this action empowered the political parties and created the environment ripe for special interests and (lobbyists) who could effect popular elections with incentives from the “give me’s”. They could also promote as a party, and effect that legislation at the federal level. Uh-oh!! Progressive and socialist ideological implications are gained from the power-grab and when you combine the shift in government balance from the 14th, with the taxing power of the 16th, and finally, the centralized inclusion of the Senate at the federal level in Congress, these 3 amendments destroyed the original intent and the principles of the Constitution as it was written.
It was little debated at the time and its implications to federalism were scarcely considered. The People were presented with the idea that the 17th promoted national unity and would serve as a deterrent to corruption and elitism.
So was born the 17th Amendment that brought a different political direction to the legislative process – instead of state-up government – the 17th would make it federal-down to state. This amendment created the same form of government that they had fought a war of independence from!!
Experience had taught the Founders the dangers of applications of ruling authority which resulted in their ingenious template of “checks and balances”, with divisions and distributions of power. As James Madison stated in Federalist 10, “Before taking effect, legislation would have to be ratified by two independent power sources: the people’s representatives in the House and the state legislatures’ agents in the Senate.” So you see, as originally designed, the Founders’ system BOTH protected nationalism and ensured that relatively few benefits would be provided to “special interests”.
There is widespread agreement that the 17th Amendment “change” was to the detriment of the states, and that it played a large part in the dramatically changing the role of the national government! To be elected a U. S. Senator today, one must have millions of dollars and be a “darling” of the major media outlets plus being beholden to the corruption in the financial/industrial networks.
The problems cited under the original Constitution’s Senate structure pale in comparison to the effects of the 17th Amendment on today’s government. - M.W.
Thoughts on the 17th Amendment
In my memory the Founders envisioned a three part strong legged stool - The Senate [for the States] the House [for the people] and the Executive. They did not trust the courts and as such gave little power to the courts as you can see below.
Section 1 - Judicial powers
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3 - Treason Note
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Jefferson on the subject
Thomas Jefferson quote: "I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."
Thomas Jefferson quote: "A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit, and incurring the horrors of a war and long oppressions of enormous public debt. If the game runs sometimes against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are at stake. - From a letter to John Taylor (June 1798), after the passage of the Alien and Sedition Acts."
Thomas Jefferson quote: "The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." - Letter to Abigail Adams (1804)
Thomas Jefferson quote: "An opinion prevails that there is no longer any distinction, that the republicans & Federalists are completely amalgamated but it is not so. The amalgamation is of name only, not of principle. All indeed call themselves by the name of Republicans, because that of Federalists was extinguished in the battle of New Orleans. But the truth is that finding that monarchy is a desperate wish in this country, they rally to the point which they think next best, a consolidated government. Their aim is now therefore to break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth. Hence new Republicans in Congress, preaching the doctrines of the old Federalists, and the new nick-names of Ultras and Radicals. But I trust they will fail under the new, as the old name, and that the friends of the real constitution and union will prevail against consolidation, as they have done against monarchism. I scarcely know myself which is most to be deprecated, a consolidation, or dissolution of the states. The horrors of both are beyond the reach of human foresight." - Thomas Jefferson to William B. Giles, December 26, 1825
As you can see they were IMO to be a review with accept or reject duties. They were given no powers to modify, change, alter, create rights, deny rights, - they were to return any law that did not meet the Constitution back to the Legislature [State or Federal] for their actions. All Three branches have agreed to permit the other to usurp powers not given by the Constitution.
As many of the Founders said: if the Congress and the court agree on usurpation, the Republic is in danger of being lost. They charged the States with righting this problem as a main duty to defend and protect the rights of the people from government. Some of the States are now in rebellion and NULLIFYING THE USURPED LAWS. This is the proper action per the FF to treat any law created from usurped act to be null, void as if they never existed at all.
Section 1 - Judicial powers
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3 - Treason Note
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Jefferson on the subject
Thomas Jefferson quote: "I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."
Thomas Jefferson quote: "A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit, and incurring the horrors of a war and long oppressions of enormous public debt. If the game runs sometimes against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are at stake. - From a letter to John Taylor (June 1798), after the passage of the Alien and Sedition Acts."
Thomas Jefferson quote: "The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." - Letter to Abigail Adams (1804)
Thomas Jefferson quote: "An opinion prevails that there is no longer any distinction, that the republicans & Federalists are completely amalgamated but it is not so. The amalgamation is of name only, not of principle. All indeed call themselves by the name of Republicans, because that of Federalists was extinguished in the battle of New Orleans. But the truth is that finding that monarchy is a desperate wish in this country, they rally to the point which they think next best, a consolidated government. Their aim is now therefore to break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth. Hence new Republicans in Congress, preaching the doctrines of the old Federalists, and the new nick-names of Ultras and Radicals. But I trust they will fail under the new, as the old name, and that the friends of the real constitution and union will prevail against consolidation, as they have done against monarchism. I scarcely know myself which is most to be deprecated, a consolidation, or dissolution of the states. The horrors of both are beyond the reach of human foresight." - Thomas Jefferson to William B. Giles, December 26, 1825
As you can see they were IMO to be a review with accept or reject duties. They were given no powers to modify, change, alter, create rights, deny rights, - they were to return any law that did not meet the Constitution back to the Legislature [State or Federal] for their actions. All Three branches have agreed to permit the other to usurp powers not given by the Constitution.
As many of the Founders said: if the Congress and the court agree on usurpation, the Republic is in danger of being lost. They charged the States with righting this problem as a main duty to defend and protect the rights of the people from government. Some of the States are now in rebellion and NULLIFYING THE USURPED LAWS. This is the proper action per the FF to treat any law created from usurped act to be null, void as if they never existed at all.
SHORT AND SWEET
The WHY
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OUR PROPOSAL
Propose a Twenty-eighth Amendment* 1. The fourteenth, the sixteenth, and the seventeenth articles of amendment to the Constitution of the United States are hereby repealed. 2. The articles shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the conventions in several states, as provided in the Constitution, within seven years from the date of submission hereof, to the States by the Congress. So simple and it's done! *We seek to have the Item 1 above which is 20 words of the 28th amendment voted on in each of the 50 States' legislatures. * We seek to have all States legislative members educated to our SO SIMPLE AMENDMENT That RESTORE STATES' RIGHTS AND POWERS. *We believe that THE FEDERAL GOVERNMENT IS BROKEN AND IN DEBT - 125 years OF ELECTIONS HAVE NOT CHANGED the GROWTH OF POWERS IN WASHINGTON. *We believe that... WE THE PEOPLE... HAVE LOST CONFIDENCE IN GOVERNMENT - 77% OF THE POPULATION ACCORDING TO GALLOP (today) BELIEVE THAT DC- CANNOT - AND WILL NOT - CHANGE. |