Skip to comments.The 17th Amendment and Republican Freedom
Posted on 04/08/2013 12:00:11 PM PDT by Jacquerie
Happy Anniversary! Today marks 100 years of the 17th Amendment.
To Freepers, our statist government is a daily fingernails across the chalkboard experience. What will the likes of Senators Schumer and Durbin or Representatives Hoyer, Lee and Pelosi try to pull next? Why did our national government morph from one designed to protect our freedoms into one that promises increasing oppression? More to the point, why did the federal government generally remain within its Constitutional bounds prior to WWI and not thereafter?
Thank the 17th Amendment.
It fundamentally altered the Constitution; it pulled the keystone from the arch of our Framers structure. The structure upon which our freedoms depend is not a Bill of Rights as many believe; it was and remains the separation of powers. That separation began with a division of power between the States and Federal government, not with the division of legislative, judicial and executive departments within the Federal government.
In Federalist 51, James Madison briefly contrasted the structure of ancient, simple republics and our new compound republic. As opposed to simple republics, in which the people granted power to a single government, in our Constitution power was first divided between the States and Federal governments. To quote Madison, Hence a double security arises to the rights of the people. The different governments will control each other, at the same that each will be controlled by itself. By different governments, Madison meant the States and new federal government.
Republican freedoms are not only threatened by oppression from rulers; the greater threat resides within the people themselves. Madison described this democracy as the tyranny of the majority: If a majority be united by a common interest, the rights of the minority will be insecure. One method to combat majoritarian tyranny was by creating a will in the community independent of the majority . . . A Senate representing the States provided Madisons independent will. Our current Senate structure merely invites a republic destroying majoritarianism which, from their study of history, our Framers sought to avoid.
Consider the guarantees in our Bill of Rights. How many remain in force? When did the national (it has not been federal for 100 years) government gather its full steam assault on them? It began when the structural protection previously provided by the States was removed. Without the institutional means to secure our rights, provided by the States, the Bill of Rights became but unenforceable parchment barriers to consolidated government made possible by the 17th.
Freepmail to jump on or off the train.
With passage of the 17th it is hard to come up with any reason for the senate to exist.
They now interpret it as limits set on the people, meaning what is not expressly provided for in the Bill of Rights belong to the Feds, whose only limit is what is expressly written into the Constitution, everything else being allowed for them (through their "interpretation").
See Wickard v. Filburn for the case that turned the Constitution on its head.
Good essay. Thanks.
How about a big steaming bowlful of pure democracy ... guaranteed to take your rights.
Empty DC - the most liberal place in America and end its influence on the minds of our elected representatives.
Having them at home means they're closer to their state than to internationalists, lobbyists and the professional political entourage.
If two houses, both elected by popular vote of We The People had been
the best that the members of the constitutional convention could come up with,
they would have all thrown up their hands, given up,
and gone about the business of amending the Articles of Confederation.
Legislators working from home is an idea worth developing.
And the national media has a multiplier effect upon the de-federalization of the Senate.
Senators run in the national media, unlike House candidates.
...Perhaps there’s a case that can be made to make the House less majoritarian- though that’s the opposite of the original plan it may return some balance.
I think James Wilson of PA was the only delegate who made any effort to have the people elect the whole of Congress and the President. He didn’t get far.
Does the phrase “malefactors of great wealth” ring a bell? It was, IMHO, an attack on the concept of private property.
Translated, the phrase means “You, and you, and you, have “too” much. It should be taken from you and given to others less fortunate. By force, if necessary.”
That was all happening about 100 years ago.
That's why my first vanity post in 2002 was called Repeal the 17th Amendment: The Elegant Campaign Finance Reform.
Get rid of 33 of the most expensive elections that occur every two years. These days, the Chuck Schumers of the Senate use their vast campaign warchests to fund other Democrat candidates in House and Senate races.
Eliminate the Senate elections, and you begin to tear down the huge national party funding blocs that have arisen.
Wouldn’t it be great if Senators didn’t give a rip what the dinosaur media have to say?
So true. Its amazing we have held on as long as we have. I don’t think it can go on much longer. The Left has corrupted, and controls every major institution.
The following list of our Founders' protections for liberty is copied with permission from an essay in a Bicentennial Volume honoring our Constitution (see footnote). It highlights your point about the wisdom of the Founders' method for the Senate:
Checks And Balances
Limited And Balanced
The Constitution was devised with an ingenious and intricate built-in system of checks and balances to guard the people's liberty against combinations of government power. It structured the Executive, Legislative, and Judiciary separate and wholly independent as to function, but coordinated for proper operation, with safeguards to prevent usurpations of power. Only by balancing each against the other two could freedom be preserved, said John Adams.
Another writer of the day summarized clearly the reasons for such checks and balances:
"If the LEGISLATIVE and JUDICIAL powers are united, the MAKER of the law will also INTERPRET it (constitutionality).
Should the EXECUTIVE and LEGISLATIVE powers be united... the EXECUTIVE power would make itself absolu te, and the government end in tyranny.
Should the EXECUTIVE and JUDICIAL powers be united, the subject (citizen) would then have no permanent security of his person or property.
"INDEED, the dependence of any of these powers upon either of the others ... has so often been productive of such calamities... that the page of history seems to be one continued tale of human wretchedness." (Theophilus Parsons, ESSEX RESULTS)
What were some of these checks and balances believed so important to individual liberty? Several are listed below:
HOUSE (peoples representatives) is a check on SENATE - no statute becomes law without its approval.
SENATE is a check on HOUSE - no statute becomes law without its approval. (Prior to 17th Amendment, SENATE was appointed by State legislatures as a protection for states' rights - another check the Founders provided.)
EXECUTIVE (President) can restrain both HOUSE and SENATE by using Veto Power.
LEGISLATIVE (Congress - Senate & House) has a check on EXECUTIVE by being able to pass, with 2/3 majority, a bill over President's veto.
LEGISLATIVE has further check on EXECUTIVE through power of discrimination in appropriation of funds for operation of EXECUTIVE.
EXECUTIVE (President) must have approval of SENATE in filling important posts in EXECUTIVE BRANCH.
EXECUTIVE (President) must have approval of SENATE before treaties with foreign nations can be effective.
LEGISLATIVE (Congress) can conduct investigations of EXECUTIVE to see if funds are properly expended and laws enforced.
EXECUTIVE has further check on members of LEGISLATIVE (Congress) in using discretionary powers in decisions regarding establishment of military bases, building & improvement of navigable rivers, dams, interstate highways, etc., in districts of those members.
JUDICIARY is check on LEGISLATIVE through its authority to review all laws and determine their constitutionality.
LEGISLATIVE (Congress) has restraining power over JUDICIARY, with constitutional authority to restrict extent of its jurisdiction.
LEGISLATIVE has power to impeach members of JUDICIARY guilty of treason, high crimes, or misdemeanors.
EXECUTIVE (President) is check on JUDICIARY by having power to nominate new judges.
LEGISLATIVE (Senate) is check on EXECUTIVE and JUDICIARY having power to approve/disapprove nominations of judges.
LEGISLATIVE is check on JUDICIARY - having control of appropriations for operation of federal court system.
LEGISLATIVE (Peoples Representatives) is check on both EXECUTIVE and J U DICIARY through power to initiate amendments to Constitution subject to approval by 3/4 of the States.
LEGISLATIVE (Senate) has power to impeach EXECUTIVE (President) with concurrence of 2/3, of members.
The PEOPLE, through their State representatives, may restrain the power of the federal LEGISLATURE if 3/4 of the States do not ratify proposed Constitutional Amendments.
LEGISLATIVE, by Joint Resolution, can terminate certain powers granted to EXECUTIVE (President) (such as war powers) without his consent.
It is the PEOPLE who have final check on both LEGISLATIVE and EXECUTIVE when they vote on their Representatives every 2 years, their Senators every 6 years, and their President every 4 years. Through those selections, they also influence the potential makeup of the JUDICIARY.
It is up to each generation to see that the integrity of the Constitutional structure for a free society is maintained by carefully preserving the system of checks and balances essential to limited and balanced government. "To preserve them (is) as necessary as to institute them," said George Washington.
Footnote: Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part III: ISBN 0-937047-01-5
First, as I've mentioned in related threads, one of the reasons that the Founding States established the federal Senate was arguably to police appropriations bills originating in the HoR to make sure that such bills complied with Congress's Section 8-limited powers.
In fact, as I've been posting in related threads today, Justice John Marshall had officially clarified that Congress is prohibited from laying taxes in the name of state power issues, essentially issues which Congress cannot justify under Section 8.
"Congress is not empowered to tax for those purposes which are within the exclusive province of the States." --Justice John Marshall, Gibbons v. Ogden, 1824.
So it was probably one of the Senate's jobs to kill HoR appropriations bills which not only wrongly usurped 10A protected state powers, but also stole state revenues associated with those unique powers.
Regarding 17A, I now argue that it is not the problem concerning today's unconstitutionally big federal government. After all, Senators take an oath to protect and defend the Constitution regardless who elects them.
The problem with 17A is that it shows how badly citizens had become detached from the Constitution and its history by the 1910s. After all, mostly rural citizens may have had a keen interest in how much a postage stamp cost, Congress's power to regulate the postal service arguably the only exception to otherwise not having any constitutional authority to regulate intrastate commerce, but I doubt it.
It makes more sense that the OWG Progressive Movement had succeeded in spooking bored, Constitution-ignorant citizens into pressuring their state lawmakers to ratify 17A. This is evidenced by the states later not working hard enough to protect their sovereignty when Constitution-ignoring socialist FDR essentially encouraged Congress to ignore its Article V requirement to petition the states for specific new powers before establishing his constitutionally indefensible New Deal spending programs.
And today's Constitution-ignorant voters still haven't been taught that candidates who run for federal office don't have the constitutional authority to tax and spend for most of the federal services that they promise to voters to get themselves elected.
Yes, I think the Framers got it right.
All true. I only think Madison got it right when he supported structural protections in the form of competing interests rather than a bill of rights. I just cannot imagine a Senate of the States going along with many of the oppressive laws enacted these past 100 years.
The 16th, 17th and 18th Amendments were all Woodrow Wilson incarnations. Wilson who as a Princeton academic thinking himself superior and refined to the previous Theodore Roosevelt rough riding brutes was able to ride a short wave of populism to bring American society up to the ‘standards’ of European monarchies. He also steered America into its first world war.
Wilson’s air and belief of superiority was not only false but self-deceiving. He was not aware of the human condition that the Founders were so keenly astute. In age of wireless radio, of telephones, automobiles, skyscrapers, motion pictures and other modern era miracles, Wilson thought then as many do today that human nature was fundamentally altered.
The 18th was repealed but the 16th and 17th slowly encroached on American freedoms and government institutions until we have a centralized state today with 50 subsidiary administrations. The latter in itself is doesn’t ‘sound or seem’ so bad but for the unintended consequences of an irrelevant 10th Amendment from which federal government encroachment is strengthened.
The combination of the 16th and the 17th Amendments gave our socialist power brokers the tools they needed to radically alter the American idea.
It wasn’t Roosevelt that started this prolonged transformation into a socialist state, it was Wilson. Roosevelt was merely a tactician whereas Wilson was the progenitor but in reality he was a dupe. a very unwise indeed stupid man who believed his own lies about himself.
And a hundred years later, the Statists continue to deny our nature as they attempt to "fundamentally transform" these once United States. They're doing a bang up job of it. Only a few hundred labor camps will necessary for hold-out Constitutional conservatives.
Labor camps will not be necessary. Statists will increasingly control the means and ends of production leaving independents and conservatives on the outside looking in.
“... The problem with 17A is that it shows how badly citizens had become detached from the Constitution and its history by the 1910s”.
But at least then they didn’t have a national media to control their Senatorial elections. The elections were influenced by local media for mostly local concerns.
Elections covered only by local media would probably yield about the same candidates as a legislature would appoint.
They didn’t know a national media would arise.
It is only since the rise of national TV networks that the Senate has become vehemently anti-federalist.
Many say this occured because of the civil rights movement - but that was merely the first occasion that the national media showed it’s power.
The precursor national radio media was made use of by FDR to effect anti-federalist policies too. But TV is much more powerful.
Now we expect any Senate candidate that the media doesn’t like to be destroyed for the slightest slip- even an imaginary one!
Shame the internet has been totally corrupted by the same national media. Had some hope for a while that a more diverse regional, if not states-oriented, counter to the consolidated view of the national media would arise there.
Gee, I gotta say that IS elegant!
Of course the media that would lose all that revenue (and influence) would cover the issue fairly...
A consolidated national media makes a federal system superfluous if it has significant democratic electoral aspects.
Eliminate Senate elections, and you also begin to dry up a large spigot of cash that flows directly to the MSM.
Good point about Senate and media. TV media made it easier for the OWG Progressive Movement to get its propaganda out as evidenced by “conservative” Obama guard dog Fx News.
Why the legislatures of the several States ever ratified this Amendment is beyond me. It is truly incomprehensible.
Note the COMPLETE absence of the STATES!!
That is what the 17th Amendment removed!
There are really only 2 entities: The mob and the Executive.
Call my cynical, but I'd call it part of a mass media wave, even if it was just print. The elites figured out that buying a paper was cheap influence toward instituting centralized power to "solve problems" or to "weed out corruption."
Thanks, Jacquerie, for the ping. Very good article.
Also, it is why a gang of eight is negotiating w/labor unions and business over immigration policy rather than hold open hearings on the matter. The 17th was supposed to make the Senate responsible to the people; it actually isolated us from lawmaking.
Off topic. Do you think Mark Levin is working up to calling for an Article V Convention?
Levin is hinting at doing something. I recall posts on FreeRepublic over the years that the Supreme Court ruled that the states can call for narrow conventions limited to a single amendment. I think that people fear that an Article 5 Convention would open up the Constitution to total revision. I'm wondering if Levin is researching the legitimacy of states calling for a narrow convention that is limited to just this one topic, before taking a stand on amending the Constitution.
It seems from reading Article 5 that Congress can limit itself to proposing a single amendment, but it's unclear what controls are placed over the states calling for an Article 5 convention.
Here is an essay by Publius from 2000 (revised 2006) on "A Convention for Proposing Amendments...as Part of This Constitution" that is good reading.
Here is another interesting post from November of last year: Mark Levin `s Cryptic Reference to 30 U.S. Governors (Con-Con ! ? ) to fan the fire.
You have a good point, but it's a tough sell.
In the mechanism for an Amendments Convention -- I'm using Judge Andrew Napolitano's nomenclature here -- the states request a convention for a given issue. If the two-thirds threshold is reached, Congress is required to set a time and place for a convention dedicated to that specific issue. The states choose delegates to the Amendments Convention either by appointment (according to Robert Natelson at ALEC) or by election (according to the American Bar Association). (Congress will have to sort that out and legislate it.) Once the Amendments Convention meets, it does its business by proposing an amendment (if it has the votes to do so) and then goes home. If it succeeds in proposing an amendment concerning the authorized topic, Congress decides whether the states will ratify by state legislatures or state ratifying conventions. If the three-fourths threshold is reached, the amendment makes it into the Constitution.
The states can in fact request a general convention in which any topic may be discussed, but they don't have to. (I wouldn't want a general convention until we've had at least two successful conventions dedicated to specific topics under our belts.)
Personally I'd like to see an Amendments Convention to repeal the 16th Amendment. That's a short, simple topic that can't be twisted into something else. Once Congress sorts out the details of our first Amendments Convention, once we hold one, and once we all see that the world doesn't end and the Constitution isn't shredded, Congress and the political parties will be on notice that the people (via the states) have found a way around their intransigence.
After a successful convention run "by the book", expect the states to quickly request an Amendments Convention to repeal the 17th Amendment. Other conventions will follow until the states have put the federal; government back into the prison that Madison designed for it. One of those conventions may, or may not, be a general convention.
Nothing will likely be done until, as in 1787, our backs are against the wall. Back then, adults took the reins, and lead a willing people to a government that suited them.
My fear is that we will not take action to repeal the 17th in time. With our backs against the wall again, I think our corrupt society will go the way of the French Revolution instead.
As for hacks in State legislatures, the federal system worked well enough pre-17th. The Framers accounted for such men. Yes, a tough sell, perhaps impossible, but wouldn't it be great to control the debate instead of being on continual defense?
How does he make it a nationwide conservative issue? I think Hannity and Rush are big enough to listen, and if they agree, they would join the crusade. I'm not no sure about other talk show hosts. The egos are huge and not prone to make another host “look good.”
What of the Tea Party and various conservative organizations?
I can hear Chrissy Matthews’ head explode. OMG, give the Senate to those evil, racist States?
I don't know that Tea Party organizations have the megaphone to nationalize the issue either, as they are also local groups, but once the message is finalized and is out it doesn't hurt to have echoes that repeat the message over and over.
I think the risk is what others have suggested, that an amendment to turn the appointment of Senators back to the states will be messaged by Democrats as taking away the right to vote. They will play up the "disenfranchise" word big-time and link Republicans to Jim Crow. They will say that Republicans are racist and are trying to kick out the people that support African-Americans.
The counter to that is a simple message, but hard to get out: nationalize it by demonizing someone. Ask if people want Harry Reid, Chuck Schumer, and Dick Durbin choosing their Senators instead of your own governor and your own legislature that you voted for? Explain how the Senators are no longer acting in the state's best interest, but running to California and New York to raise campaign funds from Hollywood to run in their own states.
Explain how letting the state legislatures choose their Senators won't throw out Reid or Durbin or Schumer or Leahy, but it will force them to be more sensitive to the issues of their home states as those states legislatures turn over from their own local elections. Explain how Boxer and Landrieu and Cantwell and Murray live in big mansions in Virginia or hotels in DC, and aren't connected in any way to the bills that are passing through the assemblies and senates in California, Washington, or Louisiana.
Ask people if they want Schumer in New York telling someone in Arizona that they can't protect their border, or if they want Reid in Nevada telling someone Wyoming that they can't have a gun.
I think it plays out there. We have to personalize it in the frame of outsiders from other states having more influence over our own laws than we do. That it's time for the states to take back their government.
This is just top-of-mind right now, and worthy of more discussion. It will be a difficult message to sell, an easy message to corrupt, and will take strong-willed politicians to make happen, none of which the GOP are good at doing.
I'm reading a Federalist Pamphlet from April 1788. Among other topics, the author spent a page going over the history of English rights and how they were reluctantly granted by Princes. No written constitution of course, but the people carved out rights from a sea of powers belonging to the sovereign, the King. This pamphlet was designed for the average reader of the time and given wide distribution in Virginia. It would flop as a post at FreeRepublic and be derided by any non-conservative as reactionary, irrelevant . . . dead white men, etc. My larger point is that I fear we have become too corrupted to understand what we lost and why we must return to federal and republican government.
As horrible as the 17th Amendment is, I think the 16th is worse. it is a tough call as to which sucks more.
You may wish to send your links to this Article V conference late this month at http://www.ucfavconference.org/
Yeah. I reread the post from February 2013 between you and the Field Marshal. I think I held my own then, too.