CORBIN — LEXINGTON (AP) — Kentucky Senate President David Williams told a group of law students that state legislators, not voters, should choose members of the U.S. Senate — comments that drew a negative reaction from Kentucky’s two senators.
Declaring himself “a tea partier,” Williams on Wednesday called for repeal of the 17th Amendment to the U.S. Constitution, which provides for popular election of U.S. senators, the Lexington-Herald Leader reported.
Williams is seeking the Republican nomination for governor next year.
The basic problem is that of balance of powers. Creating a passive requirement means that as soon as it is enacted, all efforts will be made to evade and overcome it. This is why all effective balances of power have people with a stake in their side of the balance, in competition with others on their sides. If one side gets too powerful, the other two sides are supposed to gang up to cut it down to size.
In this case, the system was set up so that the House would be the democratic institution, aka “The People’s House”. It would be balanced with the State appointed Senate, and the Electoral College to appoint the president. In turn, the president would appoint the judiciary, who would have to be approved by the Senate, giving the States yet more input into the system.
Yet another balance came into play as well. The balance between the federal government, the State governments, and the people. The people’s power was limited by republicanism, instead of democracy.
And it took the 14th Amendment (most recently brilliantly resurrected by Clarence Thomas in the MacDonald decision), to affirm the duty of the federal government to protect the people from abusive State governments.
However, the balance was disrupted by the 17th Amendment, which took away the ability of the States to protect the people against an abusive federal government. This mattered immediately, because though it was “sold” on the idea of more democracy, it was also needed to clear the path for the federal government to insert itself into the lives of the people with the 16th Amendment, the Income Tax.
In essence, the 17th Amendment “nationalized” the people. It took away any importance to their State citizenship, and made us all generic national citizens. Before then, the federal government had to go through the States to interfere with the people.
This was the basic problem. But since then, an unchecked federal government has grown by leaps and bounds, aided immensely by an experimental economic system of easy credit, that has led us to the state we are in today.
And caused yet another major problem: how to slash the size and scope of the federal government, to restore it to order?
Even just repealing the 17th Amendment would not be enough to cut such incredible overgrowth. It could only likely prevent *reduce* future growth.
So this is where a Second Court of the United States comes into play.
It over-balances the system in favor of anti-federalism. This means that it both recreates the States in a balance with the federal government and the people, but assigns the task of cutting down the federal government to size, to them.
A permanent “trimming” mechanism to both slash excessive federal growth right now, and to keep it from overgrowing in the future. This was a mechanism not foreseen by the founding fathers, but one that makes perfect sense as a part of their system.
One of the most important, and yet catastrophic, judicial decisions ever made was Marbury v. Madison (1810). It both established the authority of the Supreme Court to overturn laws based on those laws being unconstitutional, which was good; but it indirectly resulted in the president being effectively “above the law”. That is, the SCOTUS ordered him to perform his duty, and he refused.
Since the impeachment and conviction of the president, or even of an officer of his cabinet, has proven untenable, and there are no other constraints on him, it was only a matter of time before the office would, and did, evolve into an “imperial presidency”. Today, under many circumstances, the president can behave in effect as a dictator. And get away with it. With the now terribly unconstitutional “Executive signing statement”, as well as executive orders and memos, laws are enacted that have never seen the halls of congress.
Likewise, the federal judiciary, which is supposed to be organizationally at the will of the congress, has received almost no supervision or direction from them, and acts accordingly, involving itself whimsically in anything and everything. Even doing horribly unconstitutional things like ordering States to fund things judges want, and setting up special masters to push them around.
In all of these things, and more, is where the Second Court of the United States comes into its own. But importantly, it is *not* a federal court. It is a “convention of State courts”, that decides *not* constitutionality, which is a function of the federal courts, but *jurisdiction*, whether a case should be in the federal court system in the first place.
Since it addresses the 8,000 or so cases appealed from the federal District Courts, it can determine that many of those are not federal issues, and should be returned to the States. And this takes advantage of the situation that the SCOTUS cannot possibly hear 8,000 cases.
Right now, the overwhelming majority of these cases are rejected by the SCOTUS, which means they are stuck with the decision of the federal District Courts, for better or worse, often worse. But if those cases go through the Second Court of the United States, three things might happen.
Either they will agree that it is a federal issue worthy of the SCOTUS, which would probably reduce the 8,000 to just a few hundred cases, a much more manageable load for the SCOTUS; or they will say that it is a case for State, not federal jurisdiction. If it is not appealed, it is taken out of the federal courts entirely. If it *is* appealed, even with a few hundred cases, it will likely *not* be heard by the SCOTUS.
But the “default” in this case is *not* to uphold the decision of the District Courts, but to uphold the decision of the Second Court. That is, taking the case out of federal jurisdiction and returning it to the State of origin.
You see the slam dunk, here? Vast amounts of State authority returned to the States, taken from the grasp of federal judicial activists.
But it gets even better, because the Second Court of the United States has *original* jurisdiction of lawsuits between the States and the federal government.
Right now, if a State sues the federal government, or the feds sue a State, the case has to go through a long and expensive process, taking years, and will likely have to be heard by the District Courts or the SCOTUS anyway, unless one side or the other quits.
But with the Second Court, a State could confront an onerous federal law, bureaucratic regulation, executive order, unfunded mandate, etc., by suing the federal government, and the case would go directly to this “convention of State judges”, giving all the other States the opportunity to join with this rejection as a federal oppression.
At the very start of its first term, the Second Court would have a docket full of such lawsuits, with well over a hundred years of federal oppression that the States would agree to eliminate.
Now granted, such suits could still be appealed to the SCOTUS, but this is good, as it would prevent anti-federalism from running wild, either.
Put it all together, and the beneficial effects truly eclipse just a repeal of the 17th Amendment. And, when restored to balance, the system of the founding fathers is truly a magnificent machine.
