The Seventeenth Amendment and the Death of Federalism

Fall Regional Meeting of the Philadelphia Society ^ | October 3-4, 2003 | Ralph A. Rossum

[Vindiciae Contra TyrannoSCOTUS]

We call for the repeal of the 17th amendment, which will reverse the independence of the Senate and reestablish the Senate as a representative of the State governments, as intended by the Founding Fathers. This arrangement was intended to be a critical check against illegal federal expansion over the States, and the people residing in the various States, and will act to return the powers not granted to the federal government, as enumerated in the Constitution, to the states. Free Republic

...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.... The judiciary...has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

...It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. ... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186. The Avalon Project : Federalist No 78

...There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. Before I proceed to illustrate the truth of these reflections, I beg liberty to make one remark. Though in my opinion the judges ought to hold their offices during good behavior, yet I think it is clear, that the reasons in favor of this establishment of the judges in England, do by no means apply to this country. Antifederalist No. 78-79

IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? .... But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions....Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. The Avalon Project : Federalist No 48

Federalism: Reconciling National Values with States' Rights and Local Control in the 21st Century A constitutional principle without an actual constituency to back it up will soon crumble.

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[AEMILIUS PAULUS]

All the above is undoutably true. However, would you want your Senators selected by Gray Davis, Goldberg, Herb Wesson and various other outcasts.

[Mark Felton]

Right.

The 13th amendment allows the FedGov to bypass the States for funding and the 17th allowed fedGov to bypass the States for legal authority.

Repeal the 17th and ammend the 13th to allow the States to collect all income taxes and then pass on the appropriate share to the FedGov. (may not even require any mod of the 13th)

[Mark Felton]

"However, would you want your Senators selected by Gray Davis, Goldberg, Herb Wesson and various other outcasts."

They were elected by the entire legislative body of the State (as I recall).

[rdf]

Great find.

I'll put it up at my foundation's site tomorrow.

Here's the url for anyone interested.

http://www.declaration.net

Ralph Rossum is a friend, and his piece is excellent.

Cheers,

Richard F.

[NewRomeTacitus]

"...the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.... The judiciary...has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

Now we want to know how SCOTUS attained the ridiculous level of power it wields today. Thank you for the enlightening (and headache-inducing) read.

[Alberta's Child]

Before the 17th Amendment, states selected their U.S. Senators however they damn well pleased. Most Senators were elected by the state legislatures, though I believe some states had direct Senate elections among the voters. If a state wanted to have the governor select the Senators, then nothing would have prevented it from doing so.

Since the Civil War, American government has slowly moved away from such "indirect" elections of leaders and moved closer to full, direct democracy. In my opinion, such a system of government is incompatible with a constitutional republic such as the one our founding fathers created. Successful "leaders" have come to be defined as the ones who do the best job of pandering to the tastes of an electorate that is increasingly ignorant and vulgar.

Without the 17th Amendment, people like Al Gore, Joe Lieberman, and Trent Lott would never have been elected to the U.S. Senate.

[ancient_geezer]

The 13th amendment allows the FedGov to bypass the States for funding

Not according to the spokesmen at the time of the Constitution's ratificatation. Both sides agreed the Constitution predominately operated on the individual as opposed to the the state governments. The big argument was over who got to tax the peons:

 

James Madison, Federalist #39:

• "The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character;"

James Madison, Federalist #45:

• "The change relating to taxation may be regarded as the most important; and yet the present [Continental] sic Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future [Constitutional] Congress will have to require them of individual citizens;

Antifederalist #03l

"There are but two modes by which men are connected in society, the one which operates on individuals, this always has been, and ought still to be called, national government; the other which binds States and governments together (not corporations, for there is no considerable nation on earth, despotic, monarchical, or republican, that does not contain many subordinate corporations with various constitutions) this last has heretofore been denominated a league or confederacy. The term federalists is therefore improperly applied to themselves, by the friends and supporters of the proposed constitution."

Finally it came compromise with the states was that both they & the national governmetn got tax us:

Federalist #34:

• ``A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union.'' Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities.

[dasboot]

VCT:

Outstanding find! I really appreciate the material you rake up and post on FR.

Thanks!

[Held_to_Ransom]

THe whole point of the 17th was to allow politicians to reach around state governments and use mass media to appeal to the population. This was done under the assumption that the average person had better sensibilities for his self government. Frankly, I would agree with this were it not for the fact that information is controlled, distributed and manipulated by a relatively small number of people who control the media, and hence, the public opinion. In essence, the influence of the state governments was replaced by that of the media. There is, however, one balancing feature, and that is that much of the media is controlled by big business, and that in this fashion the intent of the founders is still, to some extent, alive in the current system. I agree though that the 17th should be trashed. Under the 17th, Senators could much more readily be recalled and replaced by their states.

As for the 13th, 14th and 15th, they should never have been necessary, as their intent was inherent in the constitution. However, they were absolutely necessary to fully implement the ideas of the founders in practice.

[billbears]

bump

[11B3]

There is another thing that needs changing regarding the members of Congress: There should not be a single member of Congress who has passed any State Bar Exam (making them an attorney). Yes, they may have studied law in college, but once the Bar is passed they are effectively members of the Judicial Branch. Therefore, they should not be allowed to serve in the Legislative Branch of government.

This foundational problem has led to atrocities such as the 13th and 17th Amendments. The founders intended for the laws of the land to be for the common man, not those who spoke Latin, and not for only those who belonged to a "club" such as the Bar. As soon as lawyers began to populate the Congress, the laws they wrote started becoming obtuse - and started moving away from the daily lives of the populace.

The damages done by members of the Bar to this nation are incalculable.

[Ready4Freddy]

"Before the 17th Amendment, states selected their U.S. Senators however they damn well pleased. Most Senators were elected by the state legislatures, though I believe some states had direct Senate elections among the voters. If a state wanted to have the governor select the Senators, then nothing would have prevented it from doing so."

The original wording of Article I, §3 was "chosen by the legislature thereof". Popular election of Senators didn't start until the late 1800's when numerous state legislatures were having trouble electing the Senators. By the time the 17th was proposed, I think perhaps 15-20 states already had popular elections.

[NewRomeTacitus]

"...once the Bar is passed they are effectively members of the Judicial Branch. Therefore, they should not be allowed to serve in the Legislative Branch of government."

Clubbiness has always been a fault of the Judiciary. That's how they rightfully earn the oligarchy reference. That the "upper class" adhere to the illusion of genetic superiority has always mystified me. Much like America would carry on without the services of illegal immigrants, it would be better cared for with people who were more knowledgable than the lucky folks with money and selfish agendas. Class warfare, at this point, is only self-destructive when the barbarians are settling in wherever they want to. Get over yourselves, wealthy people, and help correct these problems before there's nothing left to defend.

[Maelstrom]

Spot on.

This is a keeper. I hope it gets even wider exposure.

[Maelstrom]

Also consider with the 17th Amendment, the Senate becomes redundant with the House of Representatives. The Senators are more powerful for having the same amount of power in the House concentrated in fewer hands.

It's a nation killer...through slow poison.

[NewRomeTacitus]

I see a close-to-fair balance when taking the hugely abused relegation of bills to committees into consideration. The pecking order system will not be denied. Of course, being a romantic fool, I defy it anyway.
"What would the founders do?" should be the first path of inquiry taken as a matter of course.

[Held_to_Ransom]

Also consider with the 17th Amendment, the Senate becomes redundant with the House of Representatives. The Senators are more powerful for having the same amount of power in the House concentrated in fewer hands.

I don't know if I see that point. The 17th was supposed to keep Senators from building up a large stable power base and riding along for decades, but it hasn't stopped them.

What it has produced though are cases where a state might have a majority legislature in one party, yet Senators of another party. Again, not all that fatal. It may be easier for a Senator to buy a seat, as he can do it direct from the people, but a wealthy candidate undoubtedly could also buy a state legislature in many cases.

The Senate was always the dominant house for the reasons you cite. It allowed the smaller states more control than any proportionate system would, and it still does. This, however, has not been a bad thing in many ways. One can make the argument against it though, but I believe the original concept sound in that regard.

[stainlessbanner]

Bookmarked. Thanks for the great post, VCT. You are doing a yeoman's job on these threads. Keep up the good work.