Judge Nepolitano jumps the shark with this one by arguing that amending the constitution via a device defined in the constitution is unconstitutional.
The Constitution only seems to REQUIRE direct election of Senators. In reality ways around that interpretation were discovered. For example, the Tenth Amendment clearly established the sovereignty of the states so they went ahead and did it any way they wanted and referenda and direct election were in place in a number of states well before the amendment changing the way they would be elected.
If you people want "recall" you'll need an amendment for it. Most likely you can't get the Eastern States to adopt it.
Actually, what he's arguing (somewhat correctly IMO) is that the device defined in the constitution wasn't followed. The one thing that Article V of the constitution says can't be amended is equal representation for the States in the Senate.
SecondAmendment wrote:
Judge Nepolitano jumps the shark with this one by arguing that amending the constitution via a device defined in the constitution is unconstitutional.
Any other amendment is OK, but you can't change the Senate using the article V amendment process.
The problem with this is that the courts rule that the States are still represented, it's just the method to choose the Senators that changed.
I agree. Direct elections of Senators became Constitutional when our Republic decided it was a good enough idea to amend our Constitution over, and utilized the provided mechanism.
Election of Senators via State Legislatures will be Constitutional again when our Republic decides that it is a good enough idea to AGAIN utilize the provided mechanism.
Arguing that using the Constitution to change the Constitution is Unconstitutional is ski-boating in a leather jacket and approaching the ramp.
>>>Judge Nepolitano jumps the shark with this one by arguing that amending the constitution via a device defined in the constitution is unconstitutional.<<<
Agreed. I think that he intended to point out that the direct election of senators subverts the original intent of the Constitution, which is true, but the change was done through Constitutional means. About jumping the shark, though, I’d have to just take a deep breath and understand that all of us occasionally write or say something which didn’t come out the way we intended. This reminds me of a poster I had in my office when I was running this small company in Oregon. It showed this guy screaming with his hands on his head, terrified, with the caption, “Oh, sh*t! You did it exactly the way I told you to do it.”
The judge had a bad night. It happens.
The article doesn’t seem to match the title.I can’t find where he supports his claim that the XVII is unconstitutional.I believe he may be referring to the clause in Art 1 where the Constitution states that no amendment can ever change the number of Senators per state.Napolitano may be trying to claim the Constitution accepts NO change in any matter involving the Senate.As for his main point,if my NYS legislature had control of who went to the Senate,Gillibrand and Schumer would,in comparison,look like Henry Clay and Daniel Webster.