The 17th Amendment Was a Very Bad Idea

 

 
By Doug Patton June 29, 2010 7:14 AM

"When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre 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." -- Thomas Jefferson, in 1821

The most anti-American president in the history of the country -- at least until Barack Hussein Obama entered the White House -- was Woodrow Wilson. Elected in 1912, Wilson was a racist progressive Democrat who viewed the Founders and the Constitution with disdain. During his first year in office, he promoted two of the most destructive amendments to the U.S. Constitution ever ratified -- the 16th, which gave us the direct federal income tax, and the 17th, which provided for the direct election of U.S. Senators.
 
The popular election of our senators is bad public policy because it stripped the states of the one voice of representation they had in Washington, DC. James Madison, remembered as the Father of the Constitution, cautioned against "nationalism," wherein a strong national government would rule from Washington. Madison instead favored a new system, to be known as "federalism," which would give co-equal powers to the state and the federal governments. One of the key aspects of maintaining this distinction was the manner in which U.S. Senators were selected.
 
The House of Representatives, Madison said, would be the direct advocate for the people, and would be elected through their direct vote. U.S. Senators would be selected by their state legislatures, and would represent the interests of the states. By the end of the 19th Century, widespread corruption within state legislatures was rampant. At least that was the excuse used by those who advocated ratification of the 17th Amendment. As if there is no corruption surrounding this issue under the current system. Anyone been watching the trial of former Gov. Rod Blagojevich in Illinois?

Imagine how much more accountable United States Senators would be to the states they allegedly represent if they had to answer to the legislators in that state, rather than to the fickle whim of voters.

• Blagojevich is on trial for trying to sell Barack Obama's old Senate seat. If the state legislature had been tasked with finding a replacement, rather than the governor, perhaps the people of Illinois might have someone more competent than Roland Burris.
   
  
• Perhaps Sen. Ben Nelson would have listened to his constituents' opinion on Obamacare if he had known that the Nebraska Legislature could have replaced him at will.
   
  
• Do you think that Senate Majority Leader Harry Reid would have so brazenly disregarded the wishes of Nevada had his fate rested in the hands of the legislature?
   
  
• How does the fact that Sen. Chris Dodd of Connecticut raises almost all his campaign money from out of state donors -- a practice that would be neither necessary nor tolerated under the old system -- further the interests of his state?
   
  
• What are the chances Sen. John Kerry would not be called on the carpet by the Massachusetts Legislature for voting in favor of a federal health care bill that duplicates legislation already in effect at the state level?
   
  
• Today, Alaska does not have the authority to allow oil drilling in ANWR because of federal interference.
   
  
• Louisiana Gov. Bobby Jindal is battling the feds over his state's right to protect its coastal wetlands from BP's oil spill. Jindal has also had to take the Obama administration to court in order to stop the president's moratorium on offshore drilling.
   
  
• The state of Arizona is being sued by the Justice Department for enforcing immigration law. Everywhere we turn, the states are being crushed under the boot heel of an out-of-control federal government.
  

The United States has repealed only one amendment in the 223 years since the Constitution was ratified. It is time for the 17th Amendment to join the 18th on the ash heap of history.
 
Doug Patton is a former speechwriter and public policy advisor who now works as a freelance writer. His weekly columns appear in newspapers across the country and on various Internet websites, including Human Events Online and GOPUSA.com, where he is a senior writer and state editor. Readers can e-mail him at dougpatton@cox.net.
 

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The 17th Amendment: Should it be Repealed?

 
Why The Direct Election Of Senators May Have Been A Serious Mistake,
And One That Helps Explain The Supreme Court's States' Rights Views
 
By: John W. Dean - Friday, Sep. 13, 2002
 
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 Twentieth Century. The problem began when, in the name of "democracy," we tinkered with the fundamental federal structure of the Constitution by adopting the Seventeenth Amendment.
 
The Amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but "allowing a democratic process". And it is a change whose aftermath may haunt the Twenty-first 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 focussed on not only whether a particular matter should be dealt with at the state versus 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 11th 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 not directly, but 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 Seventeenth 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 Seventeenth Amendment

 
There is no agreement on why the system of electing Senators was changed through the enactment of the Seventeenth 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 Seventeenth 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 Seventeenth Amendment (along with the Sixteenth 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 forty-three 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 Seventeenth Amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.
 

Two Main Seventeenth 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 Seventeenth 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 Seventeenth Amendment.
 
Fortuntely, Professor Zywicki offers an explanation for the Amendment's enactment that makes much more sense. He contends that the true backers of the Seventeenth 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,

"although some might find this reality 'distasteful,' that does not make it any less accurate."

 

Why Should The Seventeenth Amendment Be Repealed?

 
Those unhappy with the Supreme Court's recent activism regarding federalism should considering joining those who believe the Seventeenth 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.
 
Professor 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 Seventeenth Amendment."

John Dean is a former Counsel to the President of the United States of America.
 

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How To Restore States' Sovereignty

 
By Devvy Kidd: November 13, 2010 © 2010
 
"What's Harry Reid done for us lately?"
 
That question was posed in one of the informal voter opinion sessions in Nevada hosted by Fox News during the recent election cycle. The constitutional response would be:

U.S. senators are not supposed to represent the citizens of the state!

 
When the First Continental Congress was convened via a resolution of the Congress of the Confederation, one of the first issues discussed on May 29, 1787, was the balance of power for a newly created federal government:

3. Resolved, that the National Legislature ought to consist of two branches.
 
4. Resolved, that the member of the first branch of the National Legislature ought to be elected by the people of the several States every _____ for the term of _____; to be of the age of ____years at least. . . .
 
5. Resolved, that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of ____ years at least. . . .

James Madison wrote in The Federalist Papers No. 45:

"The Senate will be elected absolutely and exclusively by the State legislatures."

John Jay, co-author of The Federalist Papers is quoted:

"Jay then informed Governor Clinton that, unlike the Senate, where the two-thirds rule was in force for treaties and impeachment, the lower house had nothing to do with treaties; it represented the people whereas the Senate represented the states – for the Federalists always a significant distinction."

The framers of the Constitution wisely understood the absolute necessity of ensuring we the people would have the right to vote for our representative in Congress, and at the same time because they all jealously guarded freedom and liberty, the states must also have equal representation. We the people would have the ability to remove via the ballot box miscreants and scoundrels, while the state legislatures could recall their U.S. senators who acted against the best interests of their states.
 
The Senate was supposed to be a sort of check and balance, but that disappeared when U.S. senators began to be voted into office by special interests and mobs demanding more from the people's treasury. The absolute right of the states to equal representation was wiped out when the 17th Amendment was declared ratified April 8, 1913.
 

When did government officials start ignoring our national charter – and why does it continue?
Find out in "Who Killed the Constitution?"

 
The limited legislative authority delegated to U.S. senators is very important. They confirm federal judges, U.S. Supreme Court justices, the U.S. attorney general, secretary of state and other Cabinet heads – individuals who can and have had a negative impact on the states of the Union over the decades.
 
The U.S. Senate ratifies treaties. Just look at the destruction of jobs in the states because of "agreements" like NAFTA (No American Factories Taking Applications) and treaties like CAFTA and GATT/WTO. Millions of jobs shipped overseas to Mexico and South America while Americans stand in unemployment lines. Look at the destruction to our industrial and manufacturing sectors – nearly wiped out along with millions of jobs because of those unconstitutional treaties. Then there's the harm to our nation from our illegal participation as a member of the communist U.N. and the treaties coming out of that rancid operation. That is why the states were to have equal representation in the U.S. Senate – to check a president on treaties.
 
By having the state legislatures appoint their two U.S. senators, the citizens of the states actually benefit in far greater measure than by direct vote. States would appoint senators who would get the U.S. out of the U.N., Bretton Woods, NAFTA, CAFTA, GATT/WTO and begin to impeach activist judges whose decisions directly impact the lives of citizens in the sovereign 50 states. That is the constitutional solution.
 
Several major efforts are under way to repeal the 17th Amendment, but is that the right course to take? You can't repeal an amendment that clearly was not ratified by enough states.
 
In March 2009, I personally went to the National Archives in Washington, D.C., joined by two colleagues. Our purpose was to obtain, which we did, court-certified documents regarding the ratification of that amendment. Having obtained them, there is no doubt the amendment was not ratified by enough states at the time. Five states allegedly didn't ratify until months after then-Secretary of State William Jennings Bryan declared it ratified! All of the historical documents, court-certified, are available.
 
We find in the official publication called "Constitution Jefferson's Manual and Rules of the House of Representatives of the United States Congress, Eighty-Seventh Congress," Thomas Jefferson said, in part: "Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Since many state legislatures were out of session at the time of the vote, have they been deprived of equal Suffrage in the U.S. Senate because they did not participate in the ratification of this amendment? Have those states been deprived of equal suffrage in the Senate as well as the states that took no action, like the state of Georgia?
 
Is fraud (non ratification) enough to allow a state to declare the amendment null and void? Jefferson also wrote in the manual cited above: "Question has arisen as to the power of a State to recall its assent to a constitutional amendment (V. 7042)." What about that?
 
How do the states resolve this critical issue? It will not come from Congress; that is a given cemented in concrete.
 
I am not a lawyer and have no legal training. However, one thing I do believe: It's absolutely wrong to correct a legal fiction using a method which would give legitimacy to that fiction. The same constitutional crisis exists over Obama/Soetoro and the growing call for impeachment. He is without question a usurper. You cannot impeach someone who has legally never held that office. Giving legitimacy to fraud demeans our Constitution and takes away honor and integrity for our system of government purchased with rivers of blood.
 
What options do the states of the Union have should just one state legislature take the courageous step in challenging the ratification?
 
A state legislature could pass a resolution that would be sent to their attorney general to file a lawsuit with the U.S. Supreme Court. Why the Supreme Court? I think because it would be an original-jurisdiction case: Article III, Section 2, of the U.S. Constitution:
 
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.
 
Such a lawsuit most certainly is a controversy to which the United States would be the prime party involving fraudulent ratification of an amendment to the U.S. Constitution. Shouldn't ratification of amendments to the U.S. Constitution be subject to judicial scrutiny where fraud is clearly in evidence? The answer is clearly yes.
 
What about treaties in place should the amendment be declared not ratified? Realistically speaking, you couldn't just declare all the treaties passed since 1913 null and void on the spot, even though legally it would be correct. However, the House of Representatives can introduce a bill like H.R. 4759, which has been languishing since March, to get us out of NAFTA. Simply apply the normal process to get us out of those treaties.
 
The long over due states' rights movement is growing at lightening speed. Americans are learning about the 10th Amendment, the Supremacy Clause, the real meaning of the Welfare Clause and nullification. For the states to fully regain their sovereignty, the 17th Amendment must be challenged. If a state legislature is happy with the individual "voted" into office to serve in the Senate, they can keep that individual. In a calm, rational manner, the problem can be worked.

Is there one state in our union with the courage to challenge this fraud and restore their right to be represented in Congress, or will they remain little more than doormats for corrupt senators?

 
Devvy Kidd authored the booklets, "Why A Bankrupt America" and "Blind Loyalty"; 2 million copies distributed. She left the Republican Party in 1996 and has been an independent voter ever since. Visit Devvy's website at: www.devvy.com. You may also sign up for her free e-mail alerts.
 

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"I am ONE, I am only ONE, with the help of God I will do what ONE can do."