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The 17th Amendment, State Laws and the Independent Judiciary
Albany Law Review ^ | 2003 | Donald J. Kochan

Posted on 04/08/2013 1:00:14 PM PDT by Jacquerie

Oh Happy Day! Today is the hundredth anniversary of the 17th Amendment!

Lets Make a Deal. When consumers purchase goods, they expect the products to last. Everyone expects some durability to their purchases. Legislation is also a product.

Retail consumers of Congressional law can only catch a glimpse at the give and take of brief public hearings and meager open debate. What we do not see is more important. An incredible amount of personal and monetary capital goes into major legislation. Various interest groups invest tremendous sums in lobbyists, polling, media, etc to get their pet interests passed by Congress. Within the House and Senate, support granted and support denied among fellow Congressmen and Senators is the coin of the realm.

As with high-end tangible goods, the incredibly expensive bills passed by Congress and signed into law are expected to last, to be durable. Tangible goods of poor quality, that will likely not last very long, sell at discount. In similar fashion, legislation of poor quality, will not command high prices.

Legislation is a product. Its manufacturers are Congress and State Legislatures. Quality products command higher prices. The Quality Assurance inspectors are Scotus and inferior courts. Just as independent QA inspectors over time can establish a track record that products they approve will last, an independent court system can give peace of mind to lobbyists and their patrons who spend so much time and expense.

Congress/States/Courts Relationship. Pre-17th, Federal and State legislation shared a common denominator. State legislators not only wrote State laws, they also appointed the men who composed one half of the institution that wrote Federal Law. By this, the States had enormous power to not only participate in federal law making, they could veto undesirable bills from the House and deny office to Presidential nominees whose past indicated hostility to State interests.

Pre-17th, the States had both the ability and tendency to use the Senate to achieve their institutional objects. Included among the powers were those that affected the institutional relationship between Congress and the courts. Article III of the Constitution subjects Scotus and Federal courts to Congressional limitation; it is so encompassing that theoretically, Congress could reduce the entire system to John Roberts sitting at a card table with a candle.

By these checks, our Framers provided the means of political self-protection to both Congress and the Courts. Where the Courts could invalidate unconstitutional laws, Congress could limit and define the Court’s jurisdiction, determine its budget, and create or shut down a lower court without messy impeachments.

What developed in Pre-17th America, if not a symbiotic relationship, was a two way street of mutual respect. Each side was reluctant to provoke rebuke or retaliation from the other. Congress did not impinge on the Court’s independence, and regularly appropriated funds for its expansion and operations. In return, the Court rarely invalidated Congressional or State Laws. Retribution could hurt. Prior to the 17th, from 1801 to 1912, Scotus shot down 2% of challenged State and local laws, compared to 0.3% of challenged Federal Laws. Post 17th to 1994, Scotus vetoed 9% of State and local laws, compared to 1% of National Laws.

Post 17th, Senators were eliminated as agents of State interests. The broad division of power between the national and State governments was destroyed. The effect was to strip the States of their only weapon against national encroachments. A State legislature could no longer count on its Senators to protect its institutional law making and judicial interests and prevent consolidation of national power. When Congressional self-interest disappeared, when retaliation from the States was impossible because they did not have a voice in Congress, the conditions for upholding their legislation disappeared.

States were reduced to the level of any other lobby. The 17th actually incentivized Senators to encroach on state sovereignty, because States now competed with Congress to satisfy interest groups.

As corollary to the demise of federalism, no institution remained to limit the national government to enumerated powers.

When State legislatures lost their access to Congress, they lost their ability to use any congressional control mechanisms to encourage the national judiciary to uphold State laws.

Durability of the Law. Post-17th, State laws lost precious durability and value. Why should interest groups devote enormous expense and time when Scotus is increasingly prone to find State laws unconstitutional? At the same time, a “go along to get along” relationship between Congress and Scotus ensured durability and value to national legislation.

Scotus risks no political retribution nor loss of political capital when it vetoes state laws. Whatever political equilibrium was involved in the give and take in State law making is of no interest or concern to the national courts. OTOH, Scotus has a variety of incentives to avoid similar behavior when it comes to national laws, because to go along with national laws is to avoid disciplinary actions from Congress.

Durability of Congressional legislation is unaffected by adverse rulings on state laws; therefore it is not in Congressional interest to protect State legislative deals passed into law. A national court system unafraid of adverse response from Congress will be more likely to pursue self-interest when interpreting State laws, unless the laws are congruent with Congressional policy preferences.

Prior to the 17th, when Senators had direct interests in the durability of both Federal and State measures, Scotus showed similar respect for State and Federal Laws. Personal pride and nationwide concern motivated Senators to protect Federal laws. Their protective interest concerning State Laws was even more compelling, for these were the statutes of primary importance to their constituents, the States. A national court’s confrontation with State legislatures also meant a confrontation with Congress.

Pre 17th, Scotus repeatedly refused to apply the Fourteenth Amendment to the States. Witness the fifty year absence of women’s suffrage. Post 17th, Scotus incorporated (applied to the States) on their own, over decades, much of the Bill of Rights via the Fourteenth Amendment. Incorporation was a significant intrusion into the republican independence of the States. By this, large areas of public policy were handed over to untouchable federal judges.

Conclusion Post 17th, no institutional reason exists for any member of Congress to use precious personal capital to protect State laws from judicial invalidation. Since states no longer have a place in the previous federal system, they cannot respond to differential treatment by the courts. Lacking agents, confrontation with State legislatures no longer meant a confrontation with Congress. It was only a matter of time before the States’ historic prerogatives over internal commerce and police powers were threatened.

The boldfaced assaults on State sovereignty began when the States no longer had the means to protect themselves.

Above adapted from: Albany Law Review 2003, State Laws and the Independent Judiciary, by Donald J. Kochan

Consider below a partial list of Scotus rulings and laws that went beyond enumerated powers or violated the 9th, 10th Amendments. No one can prove a negative, but if Senators were still responsible to State Legislatures, still protective of their place in a federal system, it is reasonable to ask:

1.) Would a President bother to nominate statist judges hostile to the Constitution in general and the 10th Amendment in particular?
2.) Would a Senate of the States confirm progressives to federal courts?
3.) Would Congress retaliate against judges who violate State sovereignty and erode our personal freedoms?

Wickard v. Filburn (1942). Eviscerated the Commerce clause. Stole retained power of intra-state commerce from the States.
Penn Central Transportation Co. v. New York (1978) Taking property by regulation.
Roe v. Wade (1973) Legalized murder.
Obamacare (2010) Recall that over half of the States and people opposed this monstrosity.

Every violation of our Constitution made the next one easier. There are probably hundreds of repressive laws and court decisions that would not have had a chance had it not been for the 17th Amendment.

TOPICS: History; Reference
KEYWORDS: 17th; 17thamendment; constitution; diversion; ntsa; seventeenth; sideshow; statesrights

1 posted on 04/08/2013 1:00:14 PM PDT by Jacquerie
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To: NVDave; txrefugee; freedumb2003; muawiyah; cripplecreek; WhiskeyX; Carry_Okie; Rodamala; apillar; ..

Single day, high volume 17th Amendment Ping!

Freepmail to . . . .

2 posted on 04/08/2013 1:02:21 PM PDT by Jacquerie (How few were left who had seen the republic! - Tacitus, The Annals)
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To: All
Previous 17th Amendment post:

The 17th Amendment and Republican Freedom

3 posted on 04/08/2013 1:09:52 PM PDT by Jacquerie (How few were left who had seen the republic! - Tacitus, The Annals)
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To: Jacquerie

Thank you!!!

4 posted on 04/08/2013 1:20:18 PM PDT by loveliberty2
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To: Jacquerie

1913 was probably the worst year in American history. Federal Reserve Act, and ratification of the 16th and 17th amendments to the Constitution.

5 posted on 05/02/2013 11:57:23 AM PDT by wita
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To: wita

So very true. A couple of horrible amendments, fitting for a horrible decade.

6 posted on 05/02/2013 1:10:53 PM PDT by Jacquerie (How few were left who had seen the republic! - Tacitus, The Annals)
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