Is Any Part of the Constitution Unconstitutional?

American Spectator ^ | December 2010 - January 2011 issue | Andrew P. Napolitano

[neverdem]

The short answer to the question above is: Yes.

Here is the back story. The elections this past November were truly historic for those who love freedom. The Tea Party, a grassroots libertarian insurgency cobbled together from disaffected Republicans and libertarians, managed not only to strike fear into the Establishment, but actually to throw off the Establishment's hand-picked candidates in favor of those supporting limited government. The Republicans were able to ride this wave, taking control of the House and achieving a filibuster-positive number in the Senate. What many voters may not have known, though, is that if the Constitution we cherish were still in its original form with respect to the Senate, they would never have been able to vote for Rand Paul or Marco Rubio, and that would have been a good thing.

The 17th Amendment to the Constitution, which provides for the direct popular election of senators, was enacted in 1913, at the height of the Progressive Era. Originally, the Constitution had provided for state legislatures to appoint U.S. senators, a realistic reflection that the Constitution was a compact of sovereign states. It meant that senators would not be focused on public campaigning; they could do what they were elected to do. They would represent the interests of the states that sent them -- not the people in the states, but the states as sovereign entities.

The Founding Fathers' original intent in providing for indirect election of senators was to place a strong check on the power of the federal government. At the federal table, the people were to be represented by the House of Representatives, the nation as a nation was to be represented by the president, and the states as sovereign entities were to be represented by the senators whom the states sent to Washington...

[Titus Quinctius Cincinnatus]

If you meant it as false then the parenthetical “very often” was extraneous

The parenthetical was intended to convey the fact that even though the process was designed to prevent flippant and spurious amendments, nevertheless it happens sometimes, just not "very often."

[loveliberty2]

". . . and it was made hard to amend . . . . "

The most significant provision of that amazing Constitution for self-government was that which provided the only valid means for its own amendment in Article V--the Founders' requirement that any amendment would be subject to the will of "its only KEEPERS,"(Justice Story)--"We, the People."

See Dr. Walter Berns' essay entitled, "Do We Have a Living Constitution?" edited and published in the book, "Our Ageless Constitution" (Stedman & Lewis). From that essay come the following excerpts:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton

Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:

• "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."

[allmendream]

Thanks for providing the original language to the thoughts we are attempting in our glib modern tongues to convey.

The founders sure could write!

[Tailgunner Joe]

I have to say that I disagree. The small states do in fact deserve power out of proportion to the size of their populations. Otherwise New York and California will just decide everything. The small states would have had no reason to enter the Union and ratify the Constitution if they had not been granted such power.

[NonValueAdded]

"The Tea Party, a grassroots libertarian insurgency ..."

Libertarian? Hey Andrew, No Labels!!! No, not that bunch ...

[devere]

“Before 1913, if a senator were to assault state sovereignty, the people of that state were able to exert influence on the state legislature, which is held accountable every two years by a popular vote. The state legislature would be able to recall a senator immediately, thus sending a powerful message that those in the highest seats of federal power could be instantly dethroned.”

Judge Napolitano is surprisingly poorly informed. Never in the history of the USA has any member of the Senate or House of Representatives been recalled, and it is very doubtful that the recall statutes that currently exist would be upheld if they were ever utilized.

On the whole our state legislatures have been quite corrupt. There were nine cases brought before the US Senate alleging that Senate election by state legislators was due to bribery. Election deadlocks were common, and at one point Delaware had no senators for two years. By 1910 almost 2/3 of the states had called for a constitutional convention to propose direct election of senators, and Congress finally acted to propose direct election.

Repeal of the 17th amendment is an idea whose time will never come. What is needed are mechanisms for the states and people to directly overrule bad acts of Congress. If Switzerland could design such mechanisms, why can’t we?

[redpoll]

>>>Judge Nepolitano jumps the shark with this one by arguing that amending the constitution via a device defined in the constitution is unconstitutional.<<<

Agreed. I think that he intended to point out that the direct election of senators subverts the original intent of the Constitution, which is true, but the change was done through Constitutional means. About jumping the shark, though, I’d have to just take a deep breath and understand that all of us occasionally write or say something which didn’t come out the way we intended. This reminds me of a poster I had in my office when I was running this small company in Oregon. It showed this guy screaming with his hands on his head, terrified, with the caption, “Oh, sh*t! You did it exactly the way I told you to do it.”

The judge had a bad night. It happens.

[americanophile]

No, CA & NY would continue to enjoy their margins in the House, but wouldn’t have any more or less power than a Delaware or Rhode Island in the Senate.

[Kevmo]

bflr

[neverdem]

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[xkaydet65]

The article doesn’t seem to match the title.I can’t find where he supports his claim that the XVII is unconstitutional.I believe he may be referring to the clause in Art 1 where the Constitution states that no amendment can ever change the number of Senators per state.Napolitano may be trying to claim the Constitution accepts NO change in any matter involving the Senate.As for his main point,if my NYS legislature had control of who went to the Senate,Gillibrand and Schumer would,in comparison,look like Henry Clay and Daniel Webster.

[Alamo-Girl]

Thanks for the ping!

[loveliberty2]

Thanks. The concise statements of the Founders go straight to the heart of the battle of ideas between those who advocate for liberty and those who would lead us into tyranny.