Posted on 09/24/2014 11:11:00 PM PDT by Tolerance Sucks Rocks
We managed to repeal the 18th Amendment, which created Prohibition. It is time to repeal the 17th.
What? You have no idea what the 17th Amendment is? Well, it is the one that effectively ended federalism by taking the power to appoint U.S. senators from state legislatures and having the citizens directly elect them, as they had always done with the House of Representatives.
We may not get better senators, but it is likely they would not try dictating to the states what they should do — as they did when they set the national speed limit at 55 mph and the drinking age at 21, under threat of losing highway funding. No Child Left Behind dictates education standards under threat of losing funding. The Motor Voter Law told states how to register voters.
ObamaCare threatened federal funding if states did not expand Medicaid and set up exchanges, until the Supreme Court decided that was too onerous.
James Madison said during debate over the Bill of Rights, “The state legislatures will jealously and closely watch the operations of Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of people’s liberty.”
There was a grand design to balance power, but that was broken in 1913 with the passage of the 17th Amendment.
George Mason warned when the Constitution was being drafted in Philadelphia that the Senate had to represent the states lest the federal government “swallow up the state legislatures.”
Mason argued to the delegation, “(W)e have agreed that the national Legislature shall have a negative on the State Legislatures — the Danger is that the national, will swallow up the State Legislatures — what will be a reasonable guard agt. this Danger, and operate in favor of the State authorities — The answer seems to me to be this, let the State Legislatures appoint the Senate …”
The delegates backed him unanimously.
Justice Antonin Scalia in 2010 at Texas Tech University Law School was asked what he would change about the Constitution.
“There’s very little that I would change,” he said. “I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously.”
Scalia added, “We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”
That’s how we got FDR’s New Deal.
Then there is the argument put forward by Nevada’s own Jay Bybee, former William Boyd Law School constitutional law professor at UNLV and now judge on the 9th U.S. Circuit Court of Appeals on the recommendation of Nevada’s senior senator, Harry Reid.
In 1997 Bybee penned an article for the Northwestern University Law Review titled “Ulysses at the Mast: Democracy, Federalism, and the Siren’s Song.” In Greek mythology, beautiful sirens lured sailors with their music and voices to shipwreck on the rocky coast of their island.
Bybee wrote of the passage of the 17th Amendment with a rhetorical flourish:
“Mason wished to provide some mechanism for states to defend themselves against ‘encroachment’ by a national government that everyone recognized would have significantly more power than any American sovereign since July 3, 1776. A senate appointed by state legislatures would be a near-complete defense to national encroachment because the senate controlled one-half of Congress. …
“The Senate’s slide to popular democracy unyoked states and the national government in a way that has left the states nearly powerless to defend their position as other legitimate representatives of the people. As the United States moved into the Twentieth Century, it was inevitable that Congress would aggressively exercise power over matters such as commerce and spending for the general welfare in ways that no constitutional prophet would have foreseen. The lack of foresight of the circumstances under which Congress would exercise its powers did not excuse our failure to maintain those constitutional structures that assure the tempered, essential use of such powers. When we loosed ourselves from the mast to answer the Sirens’ call, we unleashed consequences only Circe could have foreseen.”
If the state Legislature of Nevada appointed the state’s two senators, do you think Reid would be calling them cowards for not voting to outlaw brothels in rural counties as he demanded in a speech at the Legislature in 2011?
The audacity of such power.
PING!
Don’t stop there, repeal the 16th Amendment, too. (I never did figure out how exchanging my time and expertise for some pieces of paper became “income”. It’s an even-up exchange.)
I’d have a much easier time with the 19th if it hadn’t given an automatic majority to those our Constitution was never designed to govern.....
Oh BS. Absolutely not. No no no no. So we can have power brokered Senators? Run good conservative candidates.
This is idiocy. Fortunately, it will never happen.
We could have the state legislatures send a delegation to the Senate as the German lander to do the Bundesrat. South Africa has a similar system of appointment of its senators.
Two popularly elected bodies will never constitute a check on the other. In few bicameral systems - apart from Australia - is the upper house elected by the people.
Here's a short post on the hundredth anniversary of the 17th:
Okay, but that will never be enough to restore our freedoms.
Recall the Left tells us that socialism hasn't 'worked' anywhere at anytime because the right people haven't been found?
The 17th made our eventual descent into Obamunism inevitable. The 17th must go!
As opposed to what we have now - the best Senators that money (or blackmail) can buy.
“That’s how we got FDR’s New Deal.” And a whole raft of other crap...
But it took concurrence by the House...the POPULARLY elected House for any of it to come to pass.
I don’t think repeal would matter one whit....
Then why did ratifying the amendment make a whit?
I don’t know that it did.
Its hard to argue that the direct election of Senators resulted in the New Deal and all the leftist ills that plague us.
It was state selected Senators who voted for the amendment to be put forth for ratification by the states and it was the states who approved it.
I hear the arguments and perhaps I am not sharp enough to grasp it, but I do not see that a leftwing state like California is going to select or elect Senators who are much different from the loons they have now.
Here in NC, we were under dumblecrat control for decades, yet we elected Jesse Helms, Richard Burr, Elizabeth Dole...none of whom would have gotten to the floor in the dumblecrat led legislature.
It would change the attitude of all Senators. Instead of trying to please voters, senators would try to please their respective state congresses. Polls would be almost meaningless to Senators.
It would give more power to the states.
Without the 17th Ammendment, Republicans would control the Senate and there wouldn't have been Obamacare
Absent the 17th Amendment David Dewhurst is the junior senator from Texas, Bob Bennett is still the junior senator from Utah, Mitch McConnell and Thad Cochran and Pat Roberts have no need to campaign, and the GOPe is saying, “Teaparty? What Teaparty?”
I agree!
HST, how about a two-fer: 16th and 17th?
The design was indeed grand.
A bicameral Congress is part of the grandness of the plan.
House members elected by the people because the House represents the people.
A Senate elected by the state legislators because the Senate represents the state.
America's founders took into account the nature of man to advance himself by fraudulent means and created our founding documents accordingly.
House members in numbers determined by the population elected by the population they represent. Senators in numbers fixed at two by the Constitution elected by the state legislators.
Where is the flaw in the grand plan that led to the 17th amendment?
The 16th amendment changed the grand plan by doing what all of history and America's founders warned against, direct taxation.
America’s founders provided for the operation of government through taxation. The Constitution provided a path to tax the people indirectly by taxing the states in proportion to the population.
As example imagine the Congress is proposing legislation that would cost $100 Million and the population is 100 Million. The government was empowered to tax each state $1 for each person in the population determined by the census. That is why the Constitution empowered the government to conduct a census. How the states pay that is up to the states, not the Federal government.
Now imagine the discussions between the people and the states when the state levies that $1 tax. One of the questions open to discussion may well be … is the government empowered by the Constitution to legislate the matter that requires the funds.
Where was the flaw in the grand plan that led to the 16th amendment?
Correct!
The founders envisioned taxing gain. If a person provides one hour of their efforts for money, there is no gain. It is an even exchange.
This is idiocy. Fortunately, it will never happen.
I’m telling Daddy on you . . . ping to Jim Robinson.Seriously, there are problems with state legislators - but the crying need is to have the state governments be responsible for the behavior of the Senate. That would nationalize the state races - when you vote for legislator, you are indirectly voting for senator as well.The reality is that the state legislators - although they don’t elect Represenatives - really do, when they draw Congressional District lines. That’s how Allen West became former Representative West, for example.
You’re going to try to convince U.S. citizens to cede their constitutional right to elect their own U.S. Senators to their state legislatures?
My Magic-8 Ball says “Outlook not so good.”
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