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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[abercrombie_guy_38]

I don’t even know where to begin.

I’d much rather see an amendment instituting term limitations than this BS. Get rid of the electoral college, too.

[Tolerance Sucks Rocks]

Some education of the populace will be in order for this one, so as to lessen the effects of demagoguery.

[supercat]

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?

I'm sure some would argue that. On the other hand, states would have had no basis for complaint until such time as there was a disagreement between their desired policy and the one desired by the feds. If the state legislature doesn't object to the Seventeenth Amendment prior to a particular Senator is seated following election, they could be reasonably regarded as having agreed to that particular Senator's appointment. That does not imply that they agreed to appoint all future Senators by plebiscite, however.

[supercat]

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.

Remind me the basis for such an absurd ruling?

[Clintonfatigued]

When the 17th amendment was passed, state legislatures were cesspools of corruption and cronyism, not spokesmen for the local citizenry. The men they appointed were mostly hacks. This would not be empowering to the people, especially since so many state legislative districts are rigidly gerrymandered for partisan advantage.

[Texas Federalist]

This is the only “campaign finance reform” that will accomplish its intended purpose.

[Tolerance Sucks Rocks]

Population disparities among legislative districts, according to Wikipedia:

Reynolds v. Sims

Also, from Wikipedia on Baker v. Carr:

Having declared reapportionment issues justiciable in Baker, the court laid out a new test for evaluating such claims in Reynolds v. Sims, 377 U.S. 533 (1964). In that case, the Court formulated the famous "one-man, one-vote" standard for legislative districting, holding that each individual had to be weighted equally in legislative apportionment. The Court decided that in states with bi-cameral legislatures both houses had to be apportioned on this standard, voiding the provision of the Arizona constitution which had provided for two state senators from each county, the California constitution providing for one senator from each county, and similar provisions elsewhere.

[Eastbound]

Hmmmm. So, how do we get it started?

[supercat]

In that case, the Court formulated the famous "one-man, one-vote" standard for legislative districting

What was their rationale? Did they just invent it out of thin air? If anything other than "one man one vote" would violate Fourteenth-Amendment "equal protection", why would later amendments be needed to give suffrage to blacks and women? It is totally implausible to suggest that the Founding Fathers were opposed to the idea of representation not based on population, since that concept is enshrined in the Constitution itself.

[supercat]

When the 17th amendment was passed, state legislatures were cesspools of corruption and cronyism, not spokesmen for the local citizenry. The men they appointed were mostly hacks. This would not be empowering to the people, especially since so many state legislative districts are rigidly gerrymandered for partisan advantage.

That is true, and the Senate would no doubt return to being a body of cronies (has it ever stopped being a body of hacks?) On the other hand, those cronies would serve different interests from the politicians in the House, and any extra energy spent by those bodies fighting each other would be energy not spent attacking the people.

[Eastbound]

"When the 17th amendment was passed, state legislatures were cesspools of corruption and cronyism, not spokesmen for the local citizenry. The men they appointed were mostly hacks. This would not be empowering to the people, especially since so many state legislative districts are rigidly gerrymandered for partisan advantage."

That may be, but I don't know. If true, at least we could say it was the people's government, regardless of how bad. And the people get what they deserve if they allowed it to remain to the point where it could not be restored. There are doubts that our present from of government can be restored.

At this point, with so many awakened to the lop-sidedness of powers, I think there would be wide-spread support for a repeal. Folks these days are quick to become active and involved in preserving what the founders handed down to us, IMO, as evidenced by the hundreds of thousands of politically-active unpaid members of reform and restoration groups.

[CzarNicky]

we also need to repeal the 19th amendment.

[The Spirit Of Allegiance]

ping

[Celtman]

Get rid of the electoral college, too.

      The electoral college is one of the last bastions of the United States as a federal republic.  Its abolition would be further descent into democracy.  If not for the electoral college, John Kerry would have become President.

      For anyone who does not understand the crucial difference between a democracy (which the United States is not) and a republic (which it was the intent of the founding fathers that the United States would be), I recommend Training Manual No. TM 2000-25 on Citizenship, issued by the U.S. War Department, November 30, 1928.

[TigersEye]

Absolutely! Repeal the 17th.

[Tolerance Sucks Rocks]

If not for the electoral college, John Kerry would have become President.

Not true. Bush beat Kerry in the popular vote. However, without the electoral college, we would have had Al Gore for President (shudder).

[Celtman]

Bush beat Kerry in the popular vote. However, without the electoral college, we would have had Al Gore for President (shudder).

I stand corrected.  Good principle, but I used a bad example.  Details, details, ... they can bite you. 

[Tolerance Sucks Rocks]

we also need to repeal the 19th amendment.

Why should women be denied suffrage? They do pay taxes, after all.

[CzarNicky]

because it’s funny

[Tom the Redhunter]

Dream on, folks.