Posted on 10/20/2002 8:04:26 AM PDT by Boonie Rat
Repeal Seventeenth Amendment
By John MacMullin
With respect to states' rights, it should be readily apparent to all that state governments cannot exert any meaningful influence or control over the federal government, judiciary, or any other federal institution.<.u>
Let us state the problem precisely. At the present time, there are no checks and balances available to the states over federal power or over Congress itself in any area. However, in the history of our country, it was not always this way. In the original design by the Framers of the U.S. Constitution, there was an effective check on Congress through the state legislatures' power to appoint (and remove) U.S. Senators. As such, the core of the problem with state's rights issues lies in the passage of the 17th Amendment which abrogated the state legislatures' right to appoint U.S. Senators in favor of popular election of those officials. This amendment created a fundamental structural problem which, irrespective of the political party in office, or the laws in effect at any one time, will result in excessive federal control in every area. It also results in a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and the evaporation of state influence over national policy.
The reason for the passage of the 17th Amendment should be stated. The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power. The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator. When deadlocked, a state would go without representation in the Senate. For instance, in the very first Congress, the State of New York went without representation in the Senate for three months. Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks. The problem of deadlocked legislatures continued unabated from 1787 until 1913. The seventeenth amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power. Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact.
For more information, I respectfully refer you to a law review article that I wrote, Amplifying the Tenth Amendment, 31 ARIZ. L. REV. 915 (1989). This article was cited as "worth reading" by the National Law Journal, in its March 5, 1990, publication. Additionally, I direct you to two books written by George Haynes titled "The Senate of the United States" published in 1938, and "The Election of Senators" published in 1906. I believe that you will find that these references are well worth reading.
In my opinion, the 17th Amendment should be repealed. This would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the present status of the state legislatures from that of lobbyists, to that of a partner in the federal political process. The state legislatures would then have the ability to decentralize power when appropriate. It would give state legislatures direct influence over the selection of federal judges and the jurisdiction of the federal judiciary and much greater ability to modify federal court orders. This structure would allow the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change. The existing relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little or no hope of return.
The constitutional amendment proposed would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the status of the state governments from that of lobbyists, to that of a partner in the federal political process. Figure A above portrays the existing relationship between the states and the federal government. This relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little hope of return.
With the passage of the amendment, the state legislatures would have the ability to decentralize power when appropriate. After passage, it would primarily be the state legislatures interacting with their appointed senators, and not with the other branches of the federal government, that would establish the "line" between the federal and state governments. Figure B shows the effect of the passage of the proposed amendment on the relationship between the governments. This structure allows the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change. This structure also exemplifies the original concept of the Framers of the Constitution.
Illustrations by John MacMullin
john.macmullin@cox.net
John MacMullin has a private law practice in Phoenix, Arizona.and a Juris Doctorate degree from the University of Arizona College of Law. His article, Amplifying the Tenth Amendment, 31 Ariz. L. Rev. 915 (1989) was cited as "worth reading" by the National Law Journal,
Sorry to be the one to have to break the news to you, but here it is: Most people don't care. I'm sure it makes consevatives feel better about themselves when they can annoy journalists, but from spending time in the real world among average people, I can tell you for certain that it's not making an ounce of difference in the way people think about politics - or even causing them to think about politics at all. They're going to keep voting the way they're voting, simple as that.
And if it does start to make a difference sometime in the future, then it will be enough that they'll still have the power to elect representatives, because representatives can stop any unconstitutional legislation or spending right in its tracks regardless of who's in the Senate, or the White House, for that matter. The HR is still the most important branch of government.
You think pork is bad now. What would it be like if we go back to appointments? State governments would love pork even more than the voters.
History doesn't seem to support you on that one. Governments may like money, but they also like sovereignty. People, on the other hand, can be bought much more easily.
I was unaware of that little tidbit of history. The Civil War was fought by lawyers and judges?
But they sure as heck would NOT love unfunded mandates!
Nonsense, because you assume that the acts of unilateral secession as practiced by the southern states was allowed by the Constitution. As it turns out the Supreme Court determined that such actions were not allowed. So the Constitution itself was never changed.
Explain West Virginia if your statement is correct.
West Virginia is a perfect example of taking advantage of a situation as it presents itself. The people of western Virginia had never had anything in common with those in eastern Virginia who were running things and in spite of several pre-war conventions which were supposed to settle things they were still restive. Then along came the souther attack on Sumter. On April 17, 1861, a convention of Virginians voted to submit a secession bill to the people. Led by Clarksburg's John S. Carlile, western delegates marched out of the Secession Convention, vowing to form a state government loyal to the Union. Many of these delegates gathered in Clarksburg on April 22, calling for a pro-Union convention, which met in Wheeling from May 13 to 15. Following a Union victory at the Battle of Philippi and the subsequent liberation of northwestern Virginia by General George B. McClellan, the Second Wheeling Convention met between June 11 and June 25, 1861. Delegates formed the Restored, or Reorganized, Government of Virginia, and chose Francis H. Pierpont as governor. President Lincoln recognized the Restored Government as the legitimate government of Virginia. John Carlile and Waitman T. Willey became United States Senators and Jacob B. Blair, William G. Brown, and Kellian V. Whaley became Congressmen representing pro-Union Virginia.
After that it was all as outlined in the Constitution. Since the Restored Government was considered the legal government of Virginia, it granted permission to itself on May 13, 1862, to form the state of West Virginia. Following some dickering over the state Constitution, the United States Senate approved a statehood proposal on July 14, 1862. On December 10, 1862, the House of Representatives passed the act and on December 31, President Lincoln signed the bill into law, approving the creation of West Virginia. On March 26, 1863, the citizens of the fifty counties approved the statehood bill, and on June 20, the state of West Virginia was officially created.
I would welcome an honest treatise on the actions of the government during the Civil War and the ramifications and the effect those changes had on our federalist state. Jackson, Jefferson, Calhoun, and Washington would be whirling in their graves if they could see what we have become and what Lincoln did to start a war to quell a "rebellion". What we do have are many apologists by the North writing to justify their ancestors' actions. The facts are there, one cannot validate their arguements when actions and facts are contridictory. The amount of information exposing the dictatorial government and the loss of Constitutional Order from 1861 to 1877 are legion.
The end
...informed on WWF and where to buy the cheapest Budweiser.
Unilateral secession=Hartford Convention
The Hartford Convention, and here is a Link to the document that was issued by it, did not declare the New England states independent. It did not threaten rebellion. Secession was dropped from discussion very early on. It was a list of amendments that the convention wanted added to the Constitution.
Supreme court ruled ex post facto.
Well...yeah. Show me a single Supreme Court decision that was not issued after the fact. That is the nature of the court and for it to do otherwise would be unconstitutional.
West Virginia..secession and the formation of a new state would be legal except there was no formal acceptance of the Confederacy (hence, the Yankee term "War of the Rebellion").
What did that have to do with it? The decision to partition Virginia was made by that organized legislature not in rebellion. Having been recognized as the sole legitimate legislature of Virginia, there was nothing illegal about their actions.
Virginia did not organize a vote on secession until Lincoln made an order for troops to invade the sovereign states of the South.
Lincoln did not issue his call for troops until after the south had initiated hostilities by firing on Sumter.
My comment is a reflection of my lack of confidence in Joe Six-Pak to vote wisely.
I do, however, have all the confidence in the world that Joe could protect us from the islamakazees if allowed to do so.
Thanks to the NRA
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