Skip to comments.The 17th Amendment and Consent of the Governed
Posted on 06/14/2014 2:02:26 AM PDT by Jacquerie
From Charles de Montesquieu Spirit of the Laws, When once a republic is corrupted, there is no possibility of remedying any of the growing evils, but by removing the corruption and restoring its lost principles.
There is a fundamental contradiction in the structure of our government that is responsible for the increasing turmoil weve witnessed these past few years. Media pleas to get along and compromise reflect snowballing social and political tensions.
Unimaginable only a decade ago, our rulers in Washington, DC prepare for societal collapse. Rather than deal with the sickness that afflicts our republic, they respond to the symptoms, through billion round ammo purchases, and administrative agency task forces to investigate, stymie, and prosecute political opponents.
Like a steam boiler with a disabled governor, the building pressure in a deeply divided American society threatens to blow up in racial, economic or police state violence. We see the collapse of society and free government all around and wonder what exactly happened, and what we can do about it.
The source of our long term ailment is simple to diagnose.
Definition: In free government, the institutions upon which the constitution acts have representation in the government. The Framing generation knew this as Consent of the Governed. We must restore this maxim before it is too late.
In the American system, any proposed law that could garner the support of the House of Representatives and a Senate of the States was likely to be acceptable to the people and the states at large. This embrace of both the people and the states into our government served to reduce the possibility of infighting and social disorders among a more or less homogenous people.
The concept of free government wasnt new in 1787. It is as old as the ancient Greek city-states in which the people participated directly in a government that acted on them. Likewise in the Roman republic, where patricians and plebs alike participated. Under the British system, the whole of society, the commons, lords and king had their place in legislation. Our very own Articles of Confederation constituted free government because the institution which the government acted upon, the states, had representation in the government. Notice the people were not represented under the Articles of Confederation. It wasnt necessary because the government did not act on the people.
Thus, in broad terms, these free government designs were/are stable systems, for no group was empowered to dominate and oppress another by virtue of the absence of that group from the government. Consent of the Governed.
That changed horribly in 1913. For the first time in history, an institution that had a legitimate and necessary place in free government, the states, walked away and subjected themselves to the caprice of the people. With passage of the 17th Amendment, the United States was transformed overnight from a federal republic into a large, unwieldy democratic republic that held arbitrary power over the states. While the Constitution still acted on the states through numerous clauses, the states were not represented. Despite popular representation in the House and Senate, free government for the states and the people they protected was gone. Not Consent of the Governed.
Booting the states from our system of government makes as much sense as booting the people. It makes no sense.
In order to remain a free government with passage of the 17th, every clause in the constitution that affected the states should have been repealed. Thats right, every one. The states were no longer represented, and therefore the government had no legitimate power over them. Passage of the 17th left behind a federal constitution without federalism.
The cynic would immediately point out that removing these clauses is impossible. The people, states, and the government they created are intertwined in their duties, functions and responsibilities. That is correct. Remove all of the clauses that affect the states and the remaining contradictions would likely lead to violence and dissolution. IOW, what we face today.
The 17th Amendment was a blind alley to arbitrary, despotic government. Republican freedom cannot be restored until it is repealed. Consent of the Governed. Article V to restore our federal republic.
Freepmail me to join or jump.
...and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
One might argue that those states not ratifying the 17th amendment are exempt from it.
Seems okay to me. What am I missing that you see as so troubling that we need to repeal the 17th Amendment? Please tell me.
Prior to the 17th amendment, which provided for popular election of Senators, the state legislatures elected the Senators.
Senators thus represented the institution of the State, while the State's Congressmen represented the people of the State.
The 17th Amendment is thus a major reason why the states have lost so much power to the federal government over the past 100 years.
under the guidance of Democrat president woodrow Wilson the 17th amendment was ratified in 1913
I agree with the author that the 17th amendment is the issue that has caused the downfall of the Republic.
However, the author failed to address that the states had to ratify the amendment for it to be put in force. The states did themselves in.
Repealing the 17th amendment would go a long way to bringing America back to a Federal Republic.
few people understand the importance of that distinction
I don't see how you can make that argument unless you also want to argue that those states that didn't ratify the 13th Amendment can still have slavery or those states that didn't ratify the 2nd Amendment can totally ban gun ownership.
Uh, no I did not fail to address that.
Get rid of automatic tax withholding too. Make people write a check and move tax day to Oct 31, right before the election.
Which is why that without the 17th Amendment David Dewhurst would currently be the junior senator from Texas, Bob Bennett would be the junior senator from Utah, and Thad Cochran would be getting ready for the general election.
IDENTIFY them. Understand their tactics. DEPOPULATE them from the body politic.
But when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property. - The Law; Bastiat
The author of The Spirit of Laws has shown by what art the legislator should direct his institutions toward each of these objectives.... But suppose that the legislator mistakes his proper objective, and acts on a principle different from that indicated by the nature of things? Suppose that the selected principle sometimes creates slavery, and sometimes liberty; sometimes wealth, and sometimes population; sometimes peace, and sometimes conquest? This confusion of objective will slowly enfeeble the law and impair the constitution.- The Law; Bastiat
When a politician views society from the seclusion of his office, he is struck by the spectacle of the inequality that he sees. He deplores the deprivations which are the lot of so many of our brothers, deprivations which appear to be even sadder when contrasted with luxury and wealth.
Perhaps the politician should ask himself whether this state of affairs has not been caused by old conquests and lootings, and by more recent legal plunder. Perhaps he should consider this proposition: Since all persons seek well-being and perfection, would not a condition of justice be sufficient to cause the greatest efforts toward progress, and the greatest possible equality that is compatible with individual responsibility? Would not this be in accord with the concept of individual responsibility which God has willed in order that mankind may have the choice between vice and virtue, and the resulting punishment and reward?
But the politician never gives this a thought. His mind turns to organizations, combinations, and arrangements legal or apparently legal. He attempts to remedy the evil by increasing and perpetuating the very thing that caused the evil in the first place: legal plunder. We have seen that justice is a negative concept. Is there even one of these positive legal actions that does not contain the principle of plunder? -The Law; Bastiat
Here I encounter the most popular fallacy of our times. It is not considered sufficient that the law should be just; it must be philanthropic. Nor is it sufficient that the law should guarantee to every citizen the free and inoffensive use of his faculties for physical, intellectual, and moral self-improvement. Instead, it is demanded that the law should directly extend welfare, education, and morality throughout the nation.-The Law; Bastiat
This is the seductive lure of socialism. And I repeat again: These two uses of the law are in direct contradiction to each other. We must choose between them. A citizen cannot at the same time be free and not free.- The Law; Bastiat
Above all, if you wish to be strong, begin by rooting out every particle of socialism that may have crept into your legislation.-The Law; Bastiat
Repeal the 17th. DISMANTLE their collectives.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States
Now that Bennett, Dewhurst and Cochran each work for a couple hundred legislators who keep very close track of their votes, what is the chance they will risk their jobs, and vote to the detriment of their states?
Would they even consider consenting to sitting judges hostile to the 10th Amendment?
By the design of the Framers, it was expected that less than virtuous men and states would look out for their interests. By doing so, they would keep the new federal government in its constitutional box.
The system worked well before 1913. It will again.
And on a side note...
Outside money influence and “cross-over” voting to pick your candidate will screech to a halt...
And in a state that has a few big cities that dominate in population the LOCAL state rep gets ONE vote to elect his senator. I’m sure the citizens in upstate NY are just thrilled with Chuck Schumer...
We would bring back representation to ALL citizens in a state...
I'm not sure I understand your question.
The people are not now represented in Congress.
Excellent object lesson: politicians are almost by definition interested mainly in preserving the club membership. C.S. Lewis’ essay, The Inner Ring, beautifully illustrates what is and what ought to be in this arena.
I go over that in my post.
While the analyses is most astuit = and most likely correct, the solution is a political problem we are unlikely to solve.
We must convince our people of this case before moving upon it. I don’t see how that can be done within so sort a time with in the present mob rule that is tearing upon our union, our culture, our economy, and ultimately our civilization.
We have in the political world today people so uncivilized that they viciously attack and ostracize people simply for holding views long felt acceptable and decent and demanded by their religious believe.
That is not the foundation for civil order and peace, that is the foundation for Civil War. As the very foundation of our faith is tested we cannot fold, and as the very foundation of the radical and culturally intolerant ideology wages war upon our existences we cannot for theses many years they have left have peace.
We can only take solid in the fact that ultimately our enemy cannot sustain themselves except by conversion of the faithful. IF we and our kin remain committed to biblical teaching they who no longer embrace having kids at all will die out. But it will likely take many generations.
The only alternative for both this problem and the problem of the basic structural problem of our no longer Constitutional Government is a cultural renisants brought forth by this revilation.
Even as weak as we are, if we remain resolute and committed to the Teaching of God, unwavering in our commitment to liberty. the Nieves people will see the ciaos of their ways and slowly come to join us for the stability and true love life needs.
Maybe this (repeal of 17 th Amendment) is the issue we should be seeking to address rather than a “Con Con” or an Article V. Properly articulated, this could appeal to a wide majority, and therefore, State legislatures.
There is no reason why a state couldn’t require that Senatorial candidates be chosen by their state legislatures and then placed before the citizens for the popular election. This would solve the problem without the need to repeal the 17th.
I can make that argument about Senate representation because Article V explicitly addresses it. It does not address slavery or gun ownership. It says “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”. I’m suggesting “equal suffrage in” means voting representation in, “consent” means ratification, and “state” means state legislature. Is this such a stretch?
Of course there would...
Do you believe that a conservative, rural voter has as much representation as a liberal city dweller?
I can go to the polls and choose my rep who will choose my Senator... I know where he lives & works... I also know that he will choose someone to represent HIS interests as well...
Vicious ideologues would be few & far between...
Still, if the constitution acts as it does, directly on the states, they should be in Congress without input from the people.
Consent of the Governed.
Perhaps, so. But Messrs. Dewhurst, Bennett and Cochran would have been charged with protecting the interests of their states (and its people) against the federal government.
As a consequence, the federal Leviathan might be significantly smaller than it is today.
And that would be an outcome you'd favor, wouldn't it?
Those voices questioning the dominance of Washington did not begin to find a voice until the austerity implemented by the Harding and Coolidge administrations following World War I when Washington was faced with the once unimaginable $6 billion federal debt, and before this the first Senate rejection of a negotiated treaty, the League of Nations. The 17th Amendment was ratified amidst the fog of such a time.
At that moment in our history Progressivism and what Wilson called "Americanism" were difficult to distinguish. "Federalism" as Thomas Jefferson and Ronald Reagan eventually understood it had no Party.
All of this is sketched out in very broad strokes, of course, as none of it was anything like that simple.
Coolidge, who originally embraced progressivism, perhaps unwittingly challenged its central planks as Massachusetts' governor when he fired the Boston police strikers, as Wilson issued uncertain statements pushing the League out west, in the year before the GOP convention in 1920 literally demanded his nomination for Vice President.
Back to the present... one of the best arguments I've heard put forth in favor of the 17th amendment's repeal cites the almost invisibility of the state legislatures. Perhaps the People and their media outlets would pay much more needed attention to the shenanigans happening in their state capitals if their legislatures picked Senators and had, also, the power to recall them!
You have provided an excellent summary of the current situation. People are getting sick of our national legislature and maybe we’re getting close to making some fundamental changes in the way it operates.
“Oh, no doubt. The average American can’t see beyond democracy, as if popular elections themselves are the purpose of government.”
You will find pleantly of those in Saddam’s Iraq and the Ayatollah’s Iran,just as you will find plenty of those in America’s future electing the same group of dictators over and over again.
Everything you cite was in Article I. It is wrong to attribute those characteristics to the 17th amendment.
Prior to the 17th, although there wasn't an explicit recall power, there was a de facto recall power in that the state legislature could refuse to send the Senator back. The intent was that the state legislature, sensitive to the feelings of the people, would preserve their own positions by sending someone to Congress who was acceptable to the people or face their own electoral loss.
Today, it is almost impossible to replace a Senator. Only death in office or the most extreme of scandals creates a vacancy these days.
"Equal Suffrage" means equal representation, and the 17th amendment did not change that. It only changed the method of choosing Senators, not the number of them per state.
The Constitution is a tapestry, where if you pull one thread out the whole thing begins to unravel.
You are correct that the Senate represented the states and the House represented the people of the states - in the federal government. But the people are also represented by the state legislatures, too, so the people are doubly represented.
The Constitution relied on the state legislatures to be the body that was closest to the people, which is why the 9th and 10th amendments are so important. It reinforces the expectation that most of the governing of the people would be done by the state legislatures, and that the federal government would be free to focus on international relations on behalf of all of the states, and on disputes between the states.
Today, the federal government is usurping more and more territory that had been the domain of the states. The federal government is mandating over the people food choices, health choices, education choices, housing choices, business choices, family choices, recreational choices, religious choices, transportation choices, property choices, and more.
This is because the 17th amendment removed the firewall that separated the states and the federal government, and that resulted in the federal government running wild without nothing to contain it.
LOL. That is a bit of statist political sophistry. The question is not how many Senators constitute equal suffrage. The question is who gets to pick them. In article V the word "state" does not mean the demos of the state. It means the same thing that the word "state" means everywhere else in the constitution. It means the state legislatures.
Where did you read that suffrage means representation? It doesn't. Suffrage means the right to vote.
suffrage (ˈsʌfrɪdʒ) n
1. (Government, Politics & Diplomacy) the right to vote, esp in public elections; franchise
2. (Government, Politics & Diplomacy) the exercise of such a right; casting a vote
3. (Government, Politics & Diplomacy) a supporting vote
4. (Ecclesiastical Terms) a prayer, esp a short intercessory prayer
It totally destroyed the "equality of representation" at the federal level between that of the people and that of the states. This destruction removed the safeguard of the states interest in defense of the people's interest. They went hand in hand as a double protection against federal over reach. The 17th destroyed one hand and smashed the other into crippled use such that today, though we have the right to vote, we have no representation.
A very good way of looking at it.
The solution is not as simple as just putting a state-recommended slate of candidates before the people to take into the voting booth. The people today are already inundated with recommended slates of candidates from every special interest group that exists.
That is not the correct solution because it doesn't address one of the core problems, which is campaign funding. The side effect of the 17th amendment popular election of Senators is the need for those Senators and candidates to raise campaign funds in order to be elected. I don't know what campaign costs were like in 1913, but they are nothing like what it costs today, especially since the population of the United States has more than tripled since then.
Today, Senators are beholden to the Party apparatus for their campaign funding, so their first loyalties are to party leaders and not state legislators. In exchange for campaign financing, Senators are expected to support party agenda that are often in direct opposition to the interests of the people in their states.
Do away with the 17th amendment, and you do away with 33 of the most expensive elections that occur every two years, and you do away with the need to raise campaign cash. The repeal of the 17th amendment will have the side effect of weakening the influence that political parties have on setting the national agenda, and put more agenda-setting power back on the state legislatures who send the Senators to Congress.
Equal suffrage, equal representation, equal voting, all mean the same thing in the Senate because the purpose of Senators is to vote on bills.
The 17th amendment didn't change the voting power of a state in the Senate because it didn't change the count of Senators for each state.
Changing the way a Senator is selected may change how the state's delegation votes on a particular bill, but it doesn't change the equal voting power of a state in the Senate.
On this post, the premise was that a state that did not ratify the 17th amendment was denied its equal suffrage. I said that the premise was not supportable because the number of votes per state delegation did not change.
See a later post of mine on this point for more clarification.
Sure it did. It completely eliminated the voting power of the states. Now only the people get to vote for Senators. The states have no representation at all.
Equal suffrage, equal representation, equal voting, all mean the same thing
Can you find a dictionary which agrees with that? Suffrage and representation are completely different things.
What changed is who ultimately controlled the senator, the state legislatures, or the people. We need to enable the state legislatures to regain their control over senators who refuse to represent the interest of their states. My suggestion of having the legislatures themselves provide the candidates would still enable the popular election required by the 17th as well as restore this control.
No that was not my premise. All states have been denied any suffrage, equal or otherwise, by the 17th amendment. My premise was that those states that did not ratify the 17th amendment have been denied suffrage without their consent, which Article V does not allow.
This is a red-herring argument. The supposed conflict between the 17th Amendment and Article V is a non-issue.
Even if the argument is one of varying state legislative control over how the Senator votes between those desiring to choose their Senator and those ratifying the popular election of Senators, there is nothing to stop a rogue Senator in either case.
One can argue that the threat of not renewing a Senator's seat in the next term is stronger in the former case, but that is no guarantee that a Senator will actually vote differently. Once there, the Senator remains for six years to vote as he or she pleases.