A Different Take on Federalism Part II

Independence is one thing, but when applied to government, unchecked independence is another term for tyranny. While the mode of appointment to the federal bench affords the courts independence from elections, the framers’ Constitution armed congress with significant, yet unfortunately, unused Article III checks. Thanks to the 17th Amendment which de-federalized and democratized congress, congress is typically incapable of asserting its 13th-15th Amendment enforcement duties over an “independent” and often runaway scotus.

Make no mistake; just as the “exceptions and under such regulations as the congress shall make” clause of Article III empowers congress to deny scotus jurisdiction over certain cases, so too did the closing clauses of 13th-15th Amendment constitutionally exempt an entire CLASS of cases related to fundamental rights from scotus review. Unlike the pre-civil war Constitution, the post-civil war amendments specifically charged congress with enforcement. “Congress shall have the power to enforce this article by appropriate legislation,” (or equivalent wording) closes the 13th – 15th Amendments.

In response to a civil war largely blamed on excessive states’ rights and a scotus friendly to slavery, the 13th-15th Amendments lodge extraordinary authority in congress to protect the people’s natural, religious, civil and political liberty. From the last sections of the amendments, congress and congress alone is responsible for their enforcement. Congress was to determine the constitutionality of law based on these amendments, and the only appeal was to a subsequent congress, not scotus. Any surplus or ancillary judicial authority in scotus is subject to congressional law. In other words, scotus is not empowered to determine the boundaries of involuntary servitude, the Bill of Rights, privileges, immunities, due process, equal protection or voting rights. This is the duty of congress.

Dodsworth contributes a worthy reminder of the Law of Unintended Consequences that befell the worst constitutional amendment of the 27 that were ratified.

> “While the mode of appointment to the federal bench affords the courts independence from elections, the framers’ Constitution armed congress with significant, yet unfortunately, unused Article III checks.”

Where judges run for election in states, they run unopposed, voters have no idea of who they are voting for, the judges win with a low number of votes against no opponent. IOW state races for judgeships are a joke.

> “Thanks to the 17th Amendment which de-federalized and democratized congress, congress is typically incapable of asserting its 13th-15th Amendment enforcement duties over an “independent” and often runaway scotus.”

This is where Dodsworth shines. This is part of the Law of Unintended Consequences.

Indeed, a review of the historical timeline gives rise to a powerful argument that the 17th Amendment spawned in large part the incidence of judicial tyranny seen today.

Judges were never meant to be so powerful that they could write law from the bench or dictate to the entire nation their own interpretation of events unless Congress acquiesced. Today Congress by default acquiesces to everything in the judiciary because they are divorced from the state legislatures by the 17th Amendment.

Federal courts are organized by districts within a state. The US Senate and its judiciary committee perform virtually no oversight of these courts other than to appoint its judges. Impeachments of federal judges by Congress today are as rare as the pecking of albino woodpeckers whereas they occurred and were accepted as a normal part of governance by Congress before the 17th Amendment.

It was always intended that a check on judges be provided by the Congress which was occupied by two-year termers and state legislature appointed US Senators thereby ensuring closer representation of the people.

When Dosworth writes “the 17th Amendment de-federalized and democratized Congress”, he means Congress was isolated from the states (de-federalized) and the larger more populous states governed Congressional proceedings (democratized).

So we have New York, California, Illinois and their dependent voter populations along with their corrupt election offices pushing for Socialism and ultimately for the overthrow of the Constitution, all this as an entrail of the 17th Amendment producing disease according to the Law of Unintended Consequences. The same DNA of progressives today pushes its diseased state to Florida and Texas while attempting to keep Pennsylvania in a DNR status. If progressives succeed in turning Florida and Texas blue as they have recently done with Virginia using an illegal population, their disease will spread to other states rapidly as Congress goes under and the Republic is placed on life support.

Now would be a good time for Americans to review the essential differences between the freedom preserving attributes of a ‘Republic’ versus the surreptitious and deadly yet virtuous sounding siren of ‘Democracy’.

Understand that a republic preserves freedom and that the appointment of US Senators was a plank of the original republic no less important than the Electoral college which is also today a target of progressives.

Understand that Congress in 1913 got it wrong when they proposed the 17th Amendment. They should have in its place proposed a RECALL of US Senators by a majority vote in respective state legislatures or by voter referendum. This would have endowed states and the people with the power to FIRE their appointed US Senators.

Simply put, the 17th Amendment was unwise and flawed bringing unintended consequences which if foreseen would have stopped it from ever being ratified.

We can still get it right. We can right the wrong of the 17th amendment with a new amendment that both grants the power of RECALL together with a repeal of the 17th.

Other teaching points to help those understand what all this talk about 17th Amendment and the meaning of terms 'Republic' and 'Democracy':

Simply put,

Republic pertains to Government.
Democracy pertains to people.

Our government is governed as a republic. What the heck does 'Republic' mean?

Republic = Res Publica = Rule of Law or Public Affair. The word 'commonwealth' has traditionally been used as a synonym for it.

Democracy = Today a representative Demokratia (Greek: δημοκρατία) = equality before the law. Our vote is anatomically a part of Democracy.

Our Democracy produces a government.
Our government produces a Republic.

Socialists want to produce a government that produces Democracy. What's wrong with that?

A government that produces democracy is a government that produces votes, that produces 'equality'. What's wrong with that?

Well, people are not equal. Yeah? But it 'sounds nice' to say people are equal. Ok but equal in what sense? How about equal before the law? How do you get this, this thing 'equal before the law'? You get it with a government that produces a Republic.

Ok, but like we vote and stuff, that's 'Democracy' right?

A government that produces 'votes' becomes an engine that produces toxic pollution in the form of corruption. What the hell is he talking about? To produce votes, the engine of Democracy must start to DICTATE in order to produce votes for Democracy. If there are not enough votes for Democracy, then Democracy dies. Therefore, a government that produces Democracy must ensure enough votes for Democracy, otherwise it goes bye-bue. This is why so many historians and philosophers say Democracy leads to dictatorship as naturally as competition leads to conflict over limited resources.

Ok, well I'm not giving up my vote, ain't no way. So I'm for keeping Democracy.

You keep Democracy in the elections and in the making of laws but the laws form a Republic = Rule of Law so that this thing called equality is in reality 'equality before the law'.

The 17th Amendment took away our local representation and gave it to Congress who gave it to courts of law where it may be taken up by a defective judge who rules what the law is according to a vision and mood. The principle of Equality Before The Law is left to the mood of a judge.

In effect, the 17th Amendment took away the power of our local vote.

What? The 17th Amendment took away our vote? It gave us a vote you moron!

Correct, it gave us a vote that allowed Congress to diss our state legislatures. It gave Congress a blank check to rule over us without any local government pushback. It also gave Congress the ability to allow courts to savage us at will. It allows certain judges to grow into tyrants. The 17th Amendment produces megalomania pills for the judicial class.

The law is what a megalomaniac judge thinks it is on any day of the week and there is virtually no force of Congress to remove federal judges because the path of least resistance is laid out to SCOTUS. But if there were a pushback by state legislatures, as it was in history before the 17th Amendment, then Congress would wake the hell up because its Senators could suffer an ass kicking by the state legislatures. The 17th removed that influence, so egoist federal judges are free to rule as they want, just ask Roger Stone. And there's not a damn thing his Florida state legislators can do about it.

How could a state legislature influence Congress over a federal judicial matter?

Easy, State Speaker picks up the phone and calls the offices of the state's US Senators and says there's a federal judge with mental problems.

With the 17th Amendment in place, the US Senator's offices says, "Thank you, have a nice day", then hangs up.

Without the 17th Amendment, the US Senator asks the State Speaker. "What's the mood of the party in the legislature?" to which the State Speaker responds, "Not good." The US Senator then puts out a communique to the Senate judiciary committee requesting to open a review of the mentally deficient federal judge. Now the federal judge feels heat where none existed before.

Get it?

Yeah, but maybe like the state legislator dude can be corrupted or something.

Correct, which is why the 17th should not have given you a power to vote in a scammer but a power to RECALL the scammer. If they ain't doing what you voted your state legislator to appoint them to do, then fire their butt using RECALL!

So we need a corrective amendment in the same way the 22th corrected the 18th. We need Amendment XX to correct the 17th by repealing the 17th and at the same time grant powers to a state's legislature or a state's voters to RECALL US Senators.

Here's a quiz to see if we learned anything:

Which of the following sentences is most related to a Democracy?
(a) Citizens are allowed to vote (once, hopefully).
(b) Chinese communists are loving and kind.
(c) Wynonna Judd is a nasty woman.
(d) MS-13 tatoos are sexy.

Which of the following sentences is most related to a Republic?
(a) Government makes laws that apply to citizens and legal residents equally.
(b) Dogs are people too.
(c) Beatles forever!
(d) Jeffrey Epstein didn't kill himself.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.