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.
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