Repeal Seventeenth Amendment

States' Liberty Party ^ | September 22, 2002 | John MacMullin

[Tolerance Sucks Rocks]

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.

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.

With that, the state governments should be focusing an effort to repeal the 17th Amendment, not on passing legislation or engaging in irrelevant activities, that are more than likely useless over the long term and probably also over the short.

Illustrations

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

Text of Proposed Amendment

Viewable HTML format         Text Version

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,

Additional discussion by John MacMullin

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[Cacique]

BTT

[supercat]

Why has no one filed a suit against the government charging deprivation of rights?

IIRC, all but three states have either ratified the Seventeenth Amendment or joined the Union after its ratification. The legislatures of all such states can be deemed to have consented to their loss of suffrage.

It would be interesting to see what would happen if the legislature of one of the three non-consenting states passed an act to appoint someone to the Senate for a full term without its citizens having voted for that person. IMHO, those states' legislators have the authority under the Constitution to do precisely that. If they do not have such authority, then they have no real suffrage in the Senate. Since they never consented to the loss of suffrage in that body, forcing it upon them would be unconstitutional.

Some might argue that giving all states no suffrage gives them "equal" suffrage. True, in a sense, zero does equal zero. On the other hand, I think it's pretty clear that an amendment that overtly abolished the Senate entirely would be deemed unconstitutional unless it was ratified unanimously (even though there, as here, all states would equally have no suffrage). I see no reason the Seventeenth should be any different.

[Arthur McGowan]

The actual text of this guy’s proposed amendment is verbose, ungrammatical, and all-around amateurish. There’s lots of work to be done!

[Arthur McGowan]

It isn’t the 14th Amendment that is to blame for the “anchor babies.” It’s those—Congress—who are determined to ignore the words in the amendment: “...and subject to the jurisdiction thereof...” Those words were specifically explained by those who wrote the amendment in a way that rules out the notion of “anchor babies.”

[Eastbound]

"IMHO, those states' legislators have the authority under the Constitution to do precisely that"

I'm not sure, supercat. Wouldn't the legislators neglect to attempt that at the earliest opportunity amount to tacit consent, therefore not forced to accept the Amendment?

[PeoplesRepublicOfWA]

Sounds great to me. Perhaps it will rid us of media whore senators such as McCain and Schumer.

[Celtman]

      A nice idea, but in reality - it would take another Constitutional Amendment to repeal the 17th.  That new amendment would have to be approved by 67 members of the Senate - who would be voting against their own jobs.  It ain't gonna happen.

      BTW, forget a Constitutional Convention.  The last time that happened, the existing fundamental law - the Articles of Confederation - was scrapped completely.  It could happen again. 

[Tolerance Sucks Rocks]

I will admit, repealing the 17th would be of greater benefit if the Supreme Court hadn’t ruled that all legislative houses must have proportional representation. I suspect there would be more houses in the Republican camp if some were based on geographical representation, not proportional.

[Tolerance Sucks Rocks]

See #28. That Supreme Court ruling must be overturned.

[Tolerance Sucks Rocks]

A nice idea, but in reality - it would take another Constitutional Amendment to repeal the 17th. That new amendment would have to be approved by 67 members of the Senate - who would be voting against their own jobs. It ain't gonna happen.

Indeed, such an Amendment would need broad-based support, so that the Senators will face defeat in their elections, should they oppose repeal.

BTW, forget a Constitutional Convention. The last time that happened, the existing fundamental law - the Articles of Confederation - was scrapped completely. It could happen again.

I reluctantly agree. That last thing we need is the New Constitution of the People's Marxist Republik of Amerika.

[alexander_busek]

>>Allow each state to send an ambassador to the federal government ...<<

While I like your general thinking, please do bear in mind that the German system isn’t quite as simple as each state sending “an” emissary. The actual formula by which it is determined how many emissaries each individual state is entitled to send is rather unfair. Add to that the fact that the geographic boundaries of the present-day German states (both in the East and the West) are rather arbitrary, and the unfairness becomes even more evident. (In contrast, U.S. states have much more identity and far longer traditions.) Lastly, most Germans, themselves, attribute much of the sluggishness of their parliamentary system to the inertia of the Bundesrat.

[Non-Sequitur]

Temporarily (as we know most people in the states are conservative minded); that will be remedies in the normal if it happens, electoral process).. It will have the long term-effect of having much more conservative senators!

Let's look at the Senators who would not be in office if the 17th was repealed. Neither of the Senators from Alabama, Mississippi, North Carolina, Maine, one of the two from Tennessee, one of the two from Kentucky, David Vitter from Louisiana, either Coburn or Inhofe from Oklahoma. It's not just headcount. Losing senators from the South and Oklahoma would also tend to remove the more conservative ones.

I will also point out that the Democrats picked up several state legislatures in 2006. That doesn't bode well for your belief that the Democrat control would be temporary.

[Tolerance Sucks Rocks]

Well, we can knock out the liaison committee provision, for one thing. It is unnecessary; Senators have been forced to resign, pre-17th, when the Senators voted against the legislatures’ wishes.

[George W. Bush]

The vital link of senators to their home state legislatures is broken.

We need to focus on restoring it. The Seventeenth is an abomination.

[LowCountryJoe]

The length of the term served is still six years, that would not change. And remember, just one of the consquences the 17th amendment was an almost complete lack of interest in state-wide elections only. Ever seen the vote tallies in state elections when a candidate for U.S. Senator or president wasn’t running? State elections would become much more important and smart candidates would run a platform on not letting as much of their state’s taxpayer money leave the state, allowing more local policies to prevail.

[LowCountryJoe]

There may well be some short-term pain there but the long-term benfit would yield much better results for liberty, in my opinion.

[villagerjoel]

Amen!

[Mr. Jeeves]

It will never happen because it’s too easy to demagogue against: “YOU mean, YOU want to take way the PEOPLE’S RIGHT TO CHOOSE their own Senators?!?”

[LowCountryJoe]

Blow their mind and tell those same people that they do not choose their own president. When they ask you what in the hell you’re talking about, you can turn it into a civics lesson about the Electoral College, representative government, and the ninth and tenth amendments.

[Exit148]

This has been a rallying cry of Jim Rob ever since I found Free Republic. Whenever I think of the 17th amendment (or 16th) I think “Jim Rob”.