The 17th Amendment and Consent of the Governed

[Jacquerie]

From Charles de Montesquieu Spirit of the Laws, “When once a republic is corrupted, there is no possibility of remedying any of the growing evils, but by removing the corruption and restoring its lost principles.”

There is a fundamental contradiction in the structure of our government that is responsible for the increasing turmoil we’ve witnessed these past few years. Media pleas to “get along” and compromise reflect snowballing social and political tensions.

Unimaginable only a decade ago, our rulers in Washington, DC prepare for societal collapse. Rather than deal with the sickness that afflicts our republic, they respond to the symptoms, through billion round ammo purchases, and administrative agency task forces to investigate, stymie, and prosecute political opponents.

Like a steam boiler with a disabled governor, the building pressure in a deeply divided American society threatens to blow up in racial, economic or police state violence. We see the collapse of society and free government all around and wonder what exactly happened, and what we can do about it.

The source of our long term ailment is simple to diagnose.

Definition: In free government, the institutions upon which the constitution acts have representation in the government. The Framing generation knew this as Consent of the Governed. We must restore this maxim before it is too late.

In the American system, any proposed law that could garner the support of the House of Representatives and a Senate of the States was likely to be acceptable to the people and the states at large. This embrace of both the people and the states into our government served to reduce the possibility of infighting and social disorders among a more or less homogenous people.

The concept of free government wasn’t new in 1787. It is as old as the ancient Greek city-states in which the people participated directly in a government that acted on them. Likewise in the Roman republic, where patricians and plebs alike participated. Under the British system, the whole of society, the commons, lords and king had their place in legislation. Our very own Articles of Confederation constituted free government because the institution which the government acted upon, the states, had representation in the government. Notice the people were not represented under the Articles of Confederation. It wasn’t necessary because the government did not act on the people.

Thus, in broad terms, these free government designs were/are stable systems, for no group was empowered to dominate and oppress another by virtue of the absence of that group from the government. Consent of the Governed.

That changed horribly in 1913. For the first time in history, an institution that had a legitimate and necessary place in free government, the states, walked away and subjected themselves to the caprice of the people. With passage of the 17th Amendment, the United States was transformed overnight from a federal republic into a large, unwieldy democratic republic that held arbitrary power over the states. While the Constitution still acted on the states through numerous clauses, the states were not represented. Despite popular representation in the House and Senate, free government for the states and the people they protected was gone. Not Consent of the Governed.

Booting the states from our system of government makes as much sense as booting the people. It makes no sense.

In order to remain a free government with passage of the 17th, every clause in the constitution that affected the states should have been repealed. That’s right, every one. The states were no longer represented, and therefore the government had no legitimate power over them. Passage of the 17th left behind a federal constitution without federalism.

The cynic would immediately point out that removing these clauses is impossible. The people, states, and the government they created are intertwined in their duties, functions and responsibilities. That is correct. Remove all of the clauses that affect the states and the remaining contradictions would likely lead to violence and dissolution. IOW, what we face today.

The 17th Amendment was a blind alley to arbitrary, despotic government. Republican freedom cannot be restored until it is repealed. Consent of the Governed. Article V to restore our federal republic.

[SeeSharp]

When I said it was a red-herring argument,...

Oh I am making a purely academic argument. The constitution is ignored in so many other ways there isn't the slightest chance of the 17th being ruled unconstitutional because of something like this.

So what do we do now?

Pursue its repeal. That's all we can do. I really don't hold out much hope though.

[Political Junkie Too]

Well, thanks for the debate. You exposed me to a new point of view.

Still not sure that I fully agree; the state lost its ability to select the Senator of its own chosing, but the state still sends two Senators. To me, it hinges on the expectation of the "faithless Senator," not the selection method of the Senator.

I agree that there is more pressure to be faithful when you have to appeal to the more knowledgeable legislators in the state, but that is no guarantee. That's why I'm not fully bought into the loss of suffrage argument, since the expectation of total fidelity should never have been there in either case.

-PJ

[PGalt]

Thanks for the post/chart. Interesting.

[Q-ManRN]

Great article Jacquerie! Thank you for including me and please keep me on your ping list. Keep up the good work. I do hope that we can successfully repeal both the 16th & 17th amendments.

[Jacquerie]

There is little need to speculate how state appointed senators would or would not go rogue. Just look at our history. In the aggregate, the pre-17th federal government, even after the 14th amendment, respected state sovereignty. In post-17th America, government consolidated in one city, and the eventual decline of the states into little more than petty provinces was guaranteed.