Posted on 05/30/2005 5:58:31 PM PDT by Remember_Salamis
Repeal the Seventeenth Amendment by Thomas J. DiLorenzo May 17, 2005
Every once in a blue moon someone in Congress (usually Congressman Ron Paul of Texas) proposes a law or resolution that would actually improve the prospects for human liberty and prosperity. It’s rare, but not nonexistent. One such case is Senate Joint Resolution 35, introduced into the U.S. Senate on April 28, 2004, which was recently brought to my attention by Laurence Vance.
S.J. Res. 35 reads: "Resolved . . . . The seventeenth article of amendment to the Constitution of the United States is hereby repealed." That’s Section 1. Section 2 reads that "The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years . . ."
This was the original design of the founding fathers; U.S. senators were not directly elected by the voting public until 1914. Thus, S.J. Res. 35 proposes a return to founding principles and is therefore a most revolutionary idea. A good overview of the history of the Seventeenth Amendment is Ralph A. Rossum’s book, Federalism, the Supreme Court, and the Seventeenth Amendment. Rossum correctly points out that the system of federalism or "divided sovereignty" that the founding fathers created with the Constitution was never intended to be enforced by the Supreme Court alone. Congress, the president, and most importantly, the citizens of the states, were also to have an equal say on constitutional matters.
The citizens of the states were to be represented by their state legislatures. As Roger Sherman wrote in a letter to John Adams: "The senators, being . . . dependent on [state legislatures] for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States."
Rossum also quotes Hamilton as saying that the election of senators by state legislatures would be an "absolute safeguard" against federal tyranny. George Mason believed that the appointment of senators by state legislatures would give the citizens of the states "some means of defending themselves against encroachments of the National Government."
Fisher Ames thought of U.S. senators as "ambassadors of the states," whereas Madison, in Federalist #62, wrote that "The appointment of senators by state legislatures gives to state governments such an agency in the formation of the federal government, as must secure the authority of the former." Moreover, said Madison, the mere "enumeration of [federal] powers" in the Constitution would never be sufficient to restrain the tyrannical proclivities of the central state, and were mere "parchment barriers" to tyranny. Structural arrangements, such as the appointment of senators by state legislatures, were necessary.
State legislatures did not hesitate to instruct U.S. senators on how to vote. In fact, the very first instruction that was given to them was to meet in public! The Virginia and Kentucky Resolves of 1798 (see William Watkins, Reclaiming the American Revolution) were the work of state legislatures that instructed their senators to oppose the Sedition Act, which essentially made it illegal to criticize the federal government.
State legislatures were instrumental in Andrew Jackson’s famous battle with the Bank of the United States (BUS), which ended with the Bank being de-funded and replaced by the Independent Treasury System and the era of "free banking" (1842–1862). State legislatures throughout the U.S. instructed their senators to oppose the BUS in the senate. Senator Pelog Sprague of Maine was forced to resign in 1835 after ignoring his legislature’s instructions to vote against the Bank. The U.S. Senate voted to censure President Andrew Jackson for opposing the BUS, but the states responded by forcing seven other senators to resign for taking part in that vote. (It seems that it’s not only twenty-first century Republicans who run for office by calling Washington, D.C. a cesspool, and then thinking of it as more like a hot tub once they get there).
The founding fathers understood that it would never be in the Supreme Court’s self-interest to protect states’ rights. Rossum quotes the anti-federalist writer "Brutus" on this point:
It would never be in the self-interest of the Court to strike down federal laws trenching on the inviolable and residuary sovereignty of the states, because every extension of power of the general legislature, as well as of the judicial powers, will increase the powers of the courts.
"Brutus’ also pointed out that with increased powers of the courts would likely come increased compensation for federal judges.
The adoption of the Seventeenth Amendment in 1913 (along with the income tax and the Fed) was a result of the deification of "democracy" that began with the Union victory in the War to Prevent Southern Independence. The war was fought, said Lincoln at Gettysburg, so that "government of the people, by the people, for the people" should not perish from the earth. This of course was absurd nonsense, but Lincoln’s silver-tongued rhetoric was apparently persuasive enough to those residing north of the Mason-Dixon line.
The direct election of senators was said to be more democratic, and therefore would reduce, if not end, corruption. There was a good bit of corruption involved in the election of senators, but the source of the corruption was: democracy!
As Rossum recounts, in 1866 a new federal law was passed that mandated for the first time how the states were to appoint senators. First, a voice vote would be taken in each house. If there was no overwhelming choice, then a concurrent vote would be taken. This process revealed information about voting preferences to minority cliques within the legislatures, who then knew who they had to support or oppose. The end result was frequent gridlocks (71 from 1885 to 1912 alone). The deadlocks were inevitably ended by bribery. Thus "democracy, in the form of the 1866 law, led to the bribery, so that the natural "cure" for the problem was: More democracy!
The Seventeenth Amendment was one of the last nails to be pounded into the coffin of federalism in America. The citizens of the states, through their state legislators, could no longer place any roadblocks whatsoever in the way of federal power. The Sixteenth Amendment, which enacted the income tax in the same year, implicitly assumed that the federal government lays claim to all income, and that citizens would be allowed to keep whatever their rulers in Washington, D.C. decided they could keep by setting the tax rates. From that point on, the states were only mere appendages or franchises of the central government.
The federal government finally became a pure monopoly and citizen sovereignty became a dead letter. Further arming itself with the powers of legal counterfeiting (the Fed) in the same year, the federal government could ignore the wishes of great majority of the citizens with reckless and disastrous abandon, as it did with its entry into World War I just a few years later.
If Americans ever again become interested in living in a free society, one of their first orders of business should be the repeal of the Seventeenth Amendment.
Even the Socialists in the Cali Legislature would appoint somebody to protect California Socialists (and Californians in general). It doesn't change the basic dynamic.
Also, If the legislature had the power to appoint senators, it would garner FAR MORE attention during elections. Most people don't know who their state reps are (I guess most people don't know who their congressman is either, but that's besides the point). The hundreds of millions of dollars that get poured into senate campaigns would be redirected towards legislature races, giving candidates greater exposure to the voter.
The state legislatures were able to recall the Senators. Now, one has to wait 6 years. That's one of the benefits of repeal.
Secondly, it makes it somewhat harder for New York or California to foist their crap on other states who want no part of said crap.
Maybe, just maybe, democracy can and does work. The question before us -- which you ignore -- is whether it would better work without the 17th amendment than with it, and not whether or not the Republic died in 1861, or 1912 or 1913.
Not to be subtle or anything, but there's a bit more to the workings of federalism than the direct election of the Senate.
Democracy has not been served by the 17th amendment precisely for opposite reasons than DiLorenzo suggests. The 17th amendment has negated democracy in destroying the constituents' relationship to both the state legislature and the Senators, who are further removed from the voter by the severe dilution of the direct election over the State legislature's more direct relation to the constituent.
x, I know you feel that the 17th didn't change much. Indeed, in the makeup of the Senate post-17th, little changed. (Go Boies Penrose!). Still, it failed in its purposes. I see no gains in it other than a transfer of corruption. In the diluted role of the citzen in transfering the Senate selection from local/representative to state-wide referendum, I see far more lost than gained. I still hope to convince you of this. Thanks, btw, for your good post.
Not really; wouldn't guys like Travanglini and Berry appoint themselves?
In a 1-party state like Mass, the dems would attack each other for a chance to go to the "big show".
There's nothing that a socialist hates more than a socialist of a different stripe.
A fact is a fact. Post-17th, the States DO NOT have representation at the federal level.
The U.S. system of checks and balances, carefully designed by our founging fathers, is no more. Due to our piss-poor public schools, most Americans understand "checks and balances" as the relationship between the three branches of federal government. However, it was also designed to allow for peripheral government, i.e. the States, to check Federal Power.
THIS SYSTEM IS NOW GONE.
Hopefully, they'll give us two ineffectual lightweights like J F'ing Kerrey. Teddy 'the swimmer' Kennedy has done a lot of damage.
"Since we have no statement in the Constitution of a required Quorum,..."
I thought that the Quorum requirement was in the US Constitution,
Article One, Section Five - Membership, quorum, ajournments, rules; Power to punish or expel; the Journal.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Seems as if the Quorum requirement is both defined and mandated by the US Federal Constitution...
dvwjr
It is a hard call. However, you probably wouldn't get the free-wheeling, owes nothing to nobody, rich SOBs that we currently have in office. The state party machines would likely put in well-controlled puppets. The parties have much longer memories than do the voters. We'd probably get something like Deborah Poritz, but held on a short leash; wildly liberal, but not allowed to do more than dabble in her personal interests rather than NJ state interests. The state legislature could always divert blame to the Senator, and run on the basis of recalling said Senator. Since there's so much blame to go around here, the Senators would probably have to watch their step much closer.
As repugnant as it appears at first glance, I think repeal of the 17th would improve things, even in NJ.
I beg to differ. While the senators do want more money for their state, they are currently not accountable to their state. If my senator Santorum doesnt want to do what the state legislature asks him to do, there is no reprimand. By repealing the 17th, senators can be recalled by the state if they are not doing the will of the state. Also since senate races are usually the most costly in terms of lobbyists and all of the campaign money finance regulations and other garbage that goes on, having states select senators would drastically reduce corruption. IMHO a representative democracy is more corrupt than a representative republic because the elected/selected individuals are held accountable to more than just one constituent (ie. the people). So i'd have to say while you are correct in saying that states would like the extra money, the added accountablility would make senators more responsive to their state rather than self interest.
Which is far better than having Lautenberg lookout for his own corporation, or Corzine riding his hobby horses and then getting tired of the job part way through.
Repealing the 17th would also get rid of the Midwest Tom Daschles and Byron Dorgans of the World who are conservative at home, but liberal in D.C.
We'll just have to disagree then.
Another issue is the concentration of lobbyists. Under the 17th, all of the lobbyists are concetrated in one area: Washington. If it was repealed, they would be spread out among the 50 state capitals. This would make their lobbying efforts more difficult at a minimum.
Oh wait, this must be an article by DiLorenzo. Thanks for wasting my time.
Seems to me I'm making a convert for the "execution" option! (ROTFLMAO)
What I find is the phrase ".... Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members....". In an earlier spot it refers to a term of 6 years.
No doubt someone tried it, but the Constitution of the United States simply doesn't have such procedures as far as I can tell.
Direct election simply increased the number of people eligible to vote for a Senator. Otherwise there's been absolutely no impact on anything.
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