While I agree with many of the points that Cruz has made about corrupt justices, the Framers arguably did not underestimate the justices’ craving for legislative power.
More specifically, although the Founding States gave the Senate the power to confirm justices to the Supreme Court, the ill-conceived 17th has given senators elected by low-information voters the opportunity to to corrupt the entire federal government by allowing activist presidents and justices do corrupt Congress's dirty work for it. This is evidenced by the corrupt, Constitution-ignoring justices that are now on the bench.
In other words, if the 17th Amendment had never been ratified then we probably wouldn’t be looking for a way to impeach activist justices who ignore 10th Amendment-protected state powers to prohibit constitutionally unprotected gay marriage since there probably wouldn’t be an activist justice majority like there is now.
The 17th Amendment needs to disappear, and corrupt senators, lawless presidents and activist justices along with it.
> “In other words, if the 17th Amendment had never been ratified then we probably wouldn’t be looking for a way to impeach activist justices who ignore 10th Amendment-protected state powers to prohibit constitutionally unprotected gay marriage since there probably wouldn’t be an activist justice majority like there is now.”
I’ve just finished reading up on a lot of the history of the 17th Amendment. And I believe you are right in your conclusion. But...(there’s always a ‘but’ isn’t there?), the push for the 17th was borne out of frustration by the electorate. The 17th was the wrong solution but there had to be something.
I’ll try to make it short. The push for a popular vote started with one of the founders at the Constitutional Convention ‘James Wilson’ who proposed at the CC that Senators be elected by popular vote. He was voted down by a very wide margin. But it came back with the introduction of an amendment in 1828 and a couple more times in the 19th century. So there’s a long history to it. It was started again in the early 20th century as an Article V movement, the only one to have ever existed. 31 states had signed on fully and 2 more states were getting ready to do the same to make it a done deal. When Congress saw the Article V amendment was serious they panicked and introduced their own amendment and utilized the discharge provision of states in their applications to quash the Article V movement.
I think it’s important to understand the history of the 17th before getting behind an effort to repeal it. I support repealing it and I know many posters on this thread also support repealing the 17th. And it really is important to discuss in threads like these because it is the root of the problems today just as you have discovered for yourself.
> “The 17th Amendment needs to disappear, and corrupt senators, lawless presidents and activist justices along with it. “
It’s important to understand the electorate of 1913 and before, and why the electorate thought it was so important to get a popular vote for US Senators. They were not stupid, but the solution was not lasting; it was made obsolete by population growth. One of the unforeseen flaws in the 17th is that over the history of the United States the population has grown enormously while the number of US Senators has remained small. This led to an increasing isolation of US Senators from the people. Today we have the ‘Washington Cartel’ as Ted Cruz calls it. From an organic perspective this development was entirely predictable.
In the formation of the Constitution it was desired that the document be designed to provide people power and state power. And the two powers conflicted leaving the people frustrated. People could express their will through the House of Representatives only to see their will thwarted by US Senators. So they resorted to badgering their state legislative candidates on which person they would appoint to the US Senate and because appointments were staggered, the subject seemed to be always in the air. Entire campaigns of state candidates would revolve around the issue of “Who will you appoint?” and most often the candidate’s background and capabilities were overlooked because of the inordinate focus on “Who will you appoint?”. Many states held primaries by popular vote for US Senators to send a message to the state legislature of who the electorate wanted to see appointed. Things came to a head and finally the 17th got through because it seemed ‘natural’ for voters to vote directly for the US Senators.
I believe this 3-way tug-of-war between voters-state legislatures-US Senators is a the result of a flaw in the original Constitution. I imagine the framers could have seen this and designed a power for the House of Representatives to override votes of the US Senate by a supermajority just as Congress can override a veto of the President but this would have been disruptive to working relations between the House and Senate.
If the 17th is repealed, all this tension and dynamic will return and maybe with a vengeance because people have memory that just last year they were able to vote directly for a US Senator.
Now an amendment can be pulled together from much of the research of present scholars and personas such as Mark Levin, that is designed to patch the flaw that created the tension that led to the 17th. An amendment can be designed that can exist with or without the 17th Amendment. An amendment can be designed that leaves no opportunity for Congress or SCOTUS to twist it, misinterpret it or read into it what they will BECAUSE it can be designed to leave all such matters including compliance and enforcement in the jurisdiction of States, not the federal government.
Such an amendment would be a ‘new thing’ without a history. The 17th has a long history and we can anticipate that opponents to its repeal will dredge up all the negative on pre-17th America and attempt to shoot down a repeal. So I see the repeal of the 17th as a long term proposition and we need something now.
If we can get an amendment across the finish line that people like and that fulfills a lot of the pre-17th design for state representation in Congress, then it’s easier to repeal the 17th when people are comfortable supporting it because the new amendment is sufficient.
Take a look here to see a draft amendment that might work:
http://www.freerepublic.com/focus/f-news/3304160/posts
I know I’m pumping my own post but I would like to see people lay out their design criteria and make an attempt at drafting something to meet their criteria. It’s a good exercise because it makes people work and stop ranting. I can send whatever looks promising to the right people who I’m in contact with. I just want people to really focus on what we need. Don’t leave it to others to solve the problem. Get involved and get it circulated.