BLANKLEY: To re-empower our states (repeal the 17th Amendment)

The Washington Times ^ | January 26, 2010 | Tony Blankley

[Tolerance Sucks Rocks]

As I was preparing to write a column on the ludi -crous maligning of the Tea Party movement by liberals, Democrats and the mainstream media (which I hope to write next week instead) I started thinking about one of the key objectives of the Tea Party people - the strict enforcement of the 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").

As an early-1960s-vintage member of the then-new conservative movement, I remember us focusing on the 10th Amendment during the 1964 Goldwater campaign. It has been a staple of conservative thought, and the continued dormancy of 10th Amendment enforcement has been one of the failures of our now half-century-old movement.

But just as the Tea Party movement seems in so many ways to represent the 2.0 version of our movement, so I again thought about the 10th Amendment anew. After about 10 seconds' thought, it struck me that the best way to revive the 10th Amendment is to repeal the 17th Amendment - which changes the first paragraph of Article I, Section 3 of the Constitution to provide that each state's senators are to be "elected by the people thereof" rather than being "chosen by the Legislature thereof."(As I Googled the topic, I found out that Ron Paul and others have been talking about this for years. It may be the only subject that could be proposed and ratified at a constitutional convention with three-fourths of the state legislatures.)

[EternalVigilance]

From the America's Independent Party Platform :

Repeal of the Sixteenth and Seventeenth Amendments

We consider the federal income tax to be destructive of our liberty, privacy, and prosperity. Therefore, we are working to bring about its complete elimination and the repeal of the Sixteenth Amendment to the U.S. Constitution. We recommend that the current system be replaced by an equitable, simple, noninvasive, visible, efficient tax, one that does not destroy or even infringe upon our economic privacy and liberty.

We also call for the repeal of the Seventeenth Amendment. Its enactment greatly reduced the power of our state legislatures and state governments – which are much closer to the people – and damaged our system of federalism.

 

[LibLieSlayer]

Reread your own post... mine was not arrogant. This is FREE Republic... as in Freedom... of speech and thought. You have every right to disagree with anyone here... but your post was not in keeping with the spirit of Conservative debate.

LLS

[Dan Middleton]

Beg pardon, the assertion that the people are not smart enough to govern themselves is not in keeping with the spirit of conservatism. And now when someone calls you out for how elitist, condescending, and LIBERAL you sound (not to mention ignorant of the facts, as in the case of your red herring comments about governors), your feelings are hurt? “Help, help, I’m being oppressed!” Please. If you’re not prepared to take the heat for your opinions, keep them to yourself.

[Repeal The 17th]

I suppose an absolutist’s view of “states rights”
would require the federal government to recognize
that each each state had the authority to determine
their own method of choosing their U.S. Senators.

[LibLieSlayer]

I was talking about those that thought their messiah had arrived... it was a sarcastic swipe at dims... and I really am sorry if I offended you but I wanted to offend those that enabled the rape of our Nation. Have a good evening... FRiend.

LLS

[sergeantdave]

Hey, fieldmarshaldj.

Thanks for answering my request.

I think you’re off a few degrees, but let me study your conclusion.

In the meantime, I need to feed my wife chocolate chip cookies.

[sergeantdave]

Okay, I read your post.

Question: What’s your date baseline?

Thanks...

[Oceander]

Repealing the 16th Amendment won't do diddly-squat to prevent an income tax. Folks who think otherwise really, really need to read the Supreme Court's Income Tax Cases a lot more closely than they are.

In particular, one should read, and consider, the following passage from the second opinion, on rehearing, in Pollock v. Farmers Loan & Trust Co., 158 U.S. 601, 603 (1896):

We have considered the act only in respect of the tax on income derived from real estate, and from invested personal property, and have not commented on so much of it as bears on gains or profits from business, privileges, or employments, in view of the instances in which taxation on business, privileges, or employments has assumed the guise of an excise tax and been sustained as such. (emphasis added).

To put that into plain English, a tax on the income earned from carrying on a trade or business, exercising a privilege (such as an attorney), or wages from providing services as an employee or independent contractor is a perfectly good excise tax and NOT A DIRECT TAX, PERIOD and therefore repeal of the 16th Amendment would do nothing to change that.

In other words, if you repealed the 16th Amendment, Congress could still impose an income tax much as it pleases on wages and business profits, but would no longer be able to tax capital gains derived from real property or stocks & bonds (and other financial assets) held for investment.

To put it even more bluntly, only the rich and liberal trust fund babies would benefit from repealing the 16th Amendment, no-one else would.

That being said, there is a lot of wisdom behind the argument that the 17th Amendment should be repealed. The Founders carefully balanced all of the powers they granted in the Constitution, and the purposefully placed the election of the Senators with the state legislatures because they knew that Senators needed to answer to a slightly different constituency if they were to act as any sort of a real brake on the demagoguery potential in the House of Representatives, who were elected by the individual citizens.

The 17th Amendment ruined that very subtle, very important distinction between Senators and Representatives, and essentially converted the Senators into super-Representatives, with three times the term, and with a vote that, today, is the equivalent of the vote of 5, plus, Representatives. In other words, the 17th Amendment turned the Senate into a gang of super-demagogues, as we can now see beyond any peradventure with the likes of Barney Frank and Co.

The 17th Amendment should most definitely be repealed. If there be need for some sort of ersatz populist sweetener, then it should suffice to point out that each individual state legislature can always decide to determine whom their Senators will be by holding popular elections. Nothing in the Constitution has ever, or would ever should the 17th be repealed, prevent that.

.

[John Valentine]

As I see it the 17th did not one whit to end or abate corruption in the selection of Senators. It merely moved the corruption from the election process to the nomination process. In my opinion that makes the situation worse, not better.

[Monorprise]

I agree repeal the 17th amendment is the most critical thing we can do towards restoring our republic.

The function of the senate was to help the power interest of the States keep a check on the power the Federal government.

It was not simply to represent the people regionally, but rather a critical part of the checks and balances of our system.

Simply repealing it wont bring immediate changes, the Senate cant after all repeal laws or un-ratify treaty, or withdraw judges already made.

But it is a critical first step towards slowing the bleeding.

[Monorprise]

We need to repeal 17th amendment and include in the senate a dynamic recall ability. The whole point of the senate is to uses the State politicians desire for power to hold the Federal government in check. Insuring the States remain the primary and most powerful political actor in our federal system.

The advantage of a more powerful state government is simply the fact that we the people can much more easily walk across the boarder.

State’s cant print money, so their taxes must be more or less in the open, furthermore they cant play class warfare because the targeted classes simply leave the state.

Returning our States to the status of primary actor is the way we win the war for small fair government.

Repealing the 17th amendment is a critical long term measure towards that end. It doesn’t really matter if the corruption is in the State legislator process of nominating a senator as long as you can withdraw senators almost a will. The real point is the power interest of the State.

[fieldmarshaldj]

It was as of the post, Feb ‘09 (so the only changes not noted would’ve been Specter’s switch, Franken’s certification & Brown’s election in MA). What I did was, with each state, look at the election date for each member. A Senator would usually be elected immediately after the the legislative election, convening their first session (example: a Senator serving from the period 2009-2015 would be elected by the legislators elected in the Nov ‘08 general). Because the start of Congress used to be in March (prior to 1935), there used to be a couple of months that the legislatures would have in order to elect a new Senator, although sometimes Congress wouldn’t convene until almost the end of a given year, so they might have even longer to do elect a Senator in that instance.

Anyway, for whatever the starting date of a given member’s term, I would look at the political makeup of the overall legislature for a given state, and could ascertain what their political affiliation would be. In my state of TN, for example, the term for one Senator began in 2007, the other in 2009. In 2007, combining the numbers of both the House and Senate added up to a very narrow Democrat majority, which would’ve likely resulted (removing the likelihood of a any party crossover voting) in a Democrat win. In 2009, the GOP won the TN House by a 50-49 margin (albeit all 49 Dems and 1 backstabbing RINO weasel colluded to elect the RINO Speaker) and the Senate by a 19-14 margin. When the two met in joint session last year to elect statewide officeholders, the margin in the Senate was enough to oust the Democrats and elect Republicans, so hence a Republican Senator would’ve been elected in such a session, and would’ve been the first by all accounts since the 1860s. So TN would’ve had a 1D/1R makeup instead of the 2R we have because of the 17th Amendment.

[Monorprise]

The party identification of the Senate and state legislator really is of 2ndary concern to the Senates most vital and primary function of protecting the power interest of the individual States.

If we were to remove the 17th we could look at also specifying in that amendment to make sure state legislators cold dynamically recall their senators and give the State Governor the ability to make temporary senate appointees like the president does with regard to ambassadors until such time as the legislator shall decide on a “permanent” one.

Many States already do this with regard to the mob “elected” senate. So I’m not sure any thing other then a mere repeal of the 17th amendment would be necessary.

The bottom line is:

The propose of the senate was vital structurally to our federal system, in that it helped keep the Federal Government in check and hopefully in the inferior position.

Corruption of the senators themselves is a side issue, and of 2ndary importance to their primary and essential function of helping to keep the Federal government in check and reserving the vast bulk of the power most locally.

When we broke the Senate with the 17th amendment in 1913 it should not be a surprise what has happen to us sense.
On all accounts, treaty, judges, bills, appointments, ect... the Senate had veto on all theses things for good reason. Theses things form the first and primary threat the distribution of power, from a federal system of decentralized power to a tyrannical system of highly centralized power.

The Senate must be driven to protect the States power interest jealously and aggressively or it cannot perform its vital function in helping to maintain the balance of power, and thus our constitutional system, which was depended upon the same balance of power for its practical Enforcement.

[TBP]

This would get liberals, progressives, populists, and others n a screaming fit, but it’s an effective way to protect the interests of the states.

Proof yet again that the Founders knew better.

[Miykayl]

“...lest they want to face recall by the legislature. “

This begins to address the real beauty in the pre-17th Senate.

Regardless of party, a politician needs/wants power. The State also “wants” power.

Think about it. What states would deliberately send a senator to D.C. that would vote away the authority of their home state? And, if they tried to vote away the authority of their home state, what state legislatures would keep them there?

It is an extremely effective check/balance that has been removed.

The congress represented the people, and the senate represented the state. This helped prevent laws from getting passed that was unfair to the people, or strengthened the central government at the expense of the state.

I need to study history and see who was pushing for the 17th...

[Miykayl]

Post # 93 IMO is the best response on this thread.

Well said, Monoprise.

[Tolerance Sucks Rocks]

This would get liberals, progressives, populists, and others in a screaming fit, but it’s an effective way to protect the interests of the states.

Provided that the legislators aren't so bound to party doctrine or so corrupt, as some on here have implied, that they would cheerfully sell away their state's sovereignty in order to have their Senators continue to push that party's national agenda (Marxism for Democrats, Socialism for Republicans).

For the repeal to really work, the state legisL00Tures will have to be cleaned up as well. My initial suggestion would be to overturn Reynolds v. Sims, so that one house of each state legislature can be county-by-county again, if it so chooses, thus keeping big-city and suburban RAT politicians from dominating both houses of the legislature, the way they appear to do in Maryland. Another would be to put redistricting duties in the hands of an impartial body, in order to make districts more competitive in elections.

Of course, the wailing and gnashing of teeth from liberals, progressives, and populists will be music to my ears. :-)

[fieldmarshaldj]

Actually, you’d have to overturn Baker v. Carr.

[Tolerance Sucks Rocks]

If I remember, Baker v. Carr was the decision that established that the method of representation by a state legisL00Ture was a political matter, and Reynolds v. Sims was the one mandating the one-man-one-vote structure that helped foster big city RAT domination in some legislatures?

[Monorprise]

One thing you might want to note is in article 5 of the United States Constitution which specifies the the amendment process to the United States Constitution it makes only one permanent prohibition to any future amendment.

“that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

http://www.archives.gov/exhibits/charters/constitution_transcript.html

The existence of the equal senate was apparently the most critical aspect of our union, so critical that it remains the only thing that may not be changed with an amendment.

The Federal Government exist to protect not destroy the sovereignty of States.

While this 1 clause of the U.S. Constitution may be used to argue for the invalidity of the 17th Amendment. (Depends on the exact definition of the term State, whether its the government or people or all of the above.)

Such an argument has in any case clearly fallen upon deaf ears among not only the court but the American people as well, and so anther amendment to repeal the 17th must be necessary.