Posted on 05/30/2005 5:58:31 PM PDT by Remember_Salamis
Repeal the Seventeenth Amendment by Thomas J. DiLorenzo May 17, 2005
Every once in a blue moon someone in Congress (usually Congressman Ron Paul of Texas) proposes a law or resolution that would actually improve the prospects for human liberty and prosperity. It’s rare, but not nonexistent. One such case is Senate Joint Resolution 35, introduced into the U.S. Senate on April 28, 2004, which was recently brought to my attention by Laurence Vance.
S.J. Res. 35 reads: "Resolved . . . . The seventeenth article of amendment to the Constitution of the United States is hereby repealed." That’s Section 1. Section 2 reads that "The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years . . ."
This was the original design of the founding fathers; U.S. senators were not directly elected by the voting public until 1914. Thus, S.J. Res. 35 proposes a return to founding principles and is therefore a most revolutionary idea. A good overview of the history of the Seventeenth Amendment is Ralph A. Rossum’s book, Federalism, the Supreme Court, and the Seventeenth Amendment. Rossum correctly points out that the system of federalism or "divided sovereignty" that the founding fathers created with the Constitution was never intended to be enforced by the Supreme Court alone. Congress, the president, and most importantly, the citizens of the states, were also to have an equal say on constitutional matters.
The citizens of the states were to be represented by their state legislatures. As Roger Sherman wrote in a letter to John Adams: "The senators, being . . . dependent on [state legislatures] for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States."
Rossum also quotes Hamilton as saying that the election of senators by state legislatures would be an "absolute safeguard" against federal tyranny. George Mason believed that the appointment of senators by state legislatures would give the citizens of the states "some means of defending themselves against encroachments of the National Government."
Fisher Ames thought of U.S. senators as "ambassadors of the states," whereas Madison, in Federalist #62, wrote that "The appointment of senators by state legislatures gives to state governments such an agency in the formation of the federal government, as must secure the authority of the former." Moreover, said Madison, the mere "enumeration of [federal] powers" in the Constitution would never be sufficient to restrain the tyrannical proclivities of the central state, and were mere "parchment barriers" to tyranny. Structural arrangements, such as the appointment of senators by state legislatures, were necessary.
State legislatures did not hesitate to instruct U.S. senators on how to vote. In fact, the very first instruction that was given to them was to meet in public! The Virginia and Kentucky Resolves of 1798 (see William Watkins, Reclaiming the American Revolution) were the work of state legislatures that instructed their senators to oppose the Sedition Act, which essentially made it illegal to criticize the federal government.
State legislatures were instrumental in Andrew Jackson’s famous battle with the Bank of the United States (BUS), which ended with the Bank being de-funded and replaced by the Independent Treasury System and the era of "free banking" (1842–1862). State legislatures throughout the U.S. instructed their senators to oppose the BUS in the senate. Senator Pelog Sprague of Maine was forced to resign in 1835 after ignoring his legislature’s instructions to vote against the Bank. The U.S. Senate voted to censure President Andrew Jackson for opposing the BUS, but the states responded by forcing seven other senators to resign for taking part in that vote. (It seems that it’s not only twenty-first century Republicans who run for office by calling Washington, D.C. a cesspool, and then thinking of it as more like a hot tub once they get there).
The founding fathers understood that it would never be in the Supreme Court’s self-interest to protect states’ rights. Rossum quotes the anti-federalist writer "Brutus" on this point:
It would never be in the self-interest of the Court to strike down federal laws trenching on the inviolable and residuary sovereignty of the states, because every extension of power of the general legislature, as well as of the judicial powers, will increase the powers of the courts.
"Brutus’ also pointed out that with increased powers of the courts would likely come increased compensation for federal judges.
The adoption of the Seventeenth Amendment in 1913 (along with the income tax and the Fed) was a result of the deification of "democracy" that began with the Union victory in the War to Prevent Southern Independence. The war was fought, said Lincoln at Gettysburg, so that "government of the people, by the people, for the people" should not perish from the earth. This of course was absurd nonsense, but Lincoln’s silver-tongued rhetoric was apparently persuasive enough to those residing north of the Mason-Dixon line.
The direct election of senators was said to be more democratic, and therefore would reduce, if not end, corruption. There was a good bit of corruption involved in the election of senators, but the source of the corruption was: democracy!
As Rossum recounts, in 1866 a new federal law was passed that mandated for the first time how the states were to appoint senators. First, a voice vote would be taken in each house. If there was no overwhelming choice, then a concurrent vote would be taken. This process revealed information about voting preferences to minority cliques within the legislatures, who then knew who they had to support or oppose. The end result was frequent gridlocks (71 from 1885 to 1912 alone). The deadlocks were inevitably ended by bribery. Thus "democracy, in the form of the 1866 law, led to the bribery, so that the natural "cure" for the problem was: More democracy!
The Seventeenth Amendment was one of the last nails to be pounded into the coffin of federalism in America. The citizens of the states, through their state legislators, could no longer place any roadblocks whatsoever in the way of federal power. The Sixteenth Amendment, which enacted the income tax in the same year, implicitly assumed that the federal government lays claim to all income, and that citizens would be allowed to keep whatever their rulers in Washington, D.C. decided they could keep by setting the tax rates. From that point on, the states were only mere appendages or franchises of the central government.
The federal government finally became a pure monopoly and citizen sovereignty became a dead letter. Further arming itself with the powers of legal counterfeiting (the Fed) in the same year, the federal government could ignore the wishes of great majority of the citizens with reckless and disastrous abandon, as it did with its entry into World War I just a few years later.
If Americans ever again become interested in living in a free society, one of their first orders of business should be the repeal of the Seventeenth Amendment.
Why would a State Legislature be better than The Public in electiong a Senator. Which state has a legislature that is trustworthy enough to do so? Texas? New Mexico? California?
Now you talk about a body that should be elected "by the states", the Supreme Court could be constituted as a body with rotating membership, with each state sending in one justice for one year as it's turn came up.
Now, should we then take a justice out and shoot him after his term is up? I don't know. Haven't thought that one through. Judges are a little different than Senators after all. They all wear the same color clothes to work for one thing.
I know.
That's why I support the FairTax (HR 25), a 23% across-the-board national retail sales tax (NRST). OF course, you would still have property taxes, which make us all serfs. But land taxation has been around since the Founding, so we've always been serfs...
Imagine New Jersey ~ is the legislature better equipped than the general public in that horrid spot to screw up electing a Senator?
Any attempt to de-legitimize the 16th & 17th amendments, and the Fed. Reserve Act by wishing away their legitimacy through supposed illegitimate methods is useless and serves any arguments against them, good or bad, poorly.
DiLorenzo is so blinded by antipathy for Lincoln he can't see anything but what he hates in things Lincoln had nothing to do with. You folks get equally blinded in arguing out whether or not the Fed Reserve, etc., is real or not. Who gives a sh*t what Wilson thought of it. Wilson was an ass. He signed the damned thing. That's like having Dubya complain about CFR.
If doesn't matter. The legislator will elect whoever will represent the interests of that lagislator in Washington. It's all about self-interest.
Southern and Western Democrats had introduced scores of income tax bills in the late 19th century to lower the tariff and get federal hands on the money in the wealthy industrial states. In 1894 a Democrat Congress passed an income tax. Grover Cleveland didn't sign it. He liked the tariff reductions but wasn't crazy about the income tax. The revenue bill became law anyway, and was overturned by the Supreme Court in 1895. Three-time Democrat Presidential candidate William Jennings Bryan was a strong proponent of a federal income tax.
As regards the Senate, "Democracy" was becoming ever more important an idea. Senators may have figured that as democracy became more important, they'd lose power and influence if they weren't directly elected. In many countries, upper legislative chambers not directly elected by the people tend to become rubber-stamp bodies that are under compulsion to go along with the lower house. That would be a likely result if we went back to the old way of electing Senators.
One problem with the article is that if things were changed in 1866 DiLorenzo blames subsequent problems on the change. He ignores possible flaws or discontentment with the original way of electing Senators. The 1866 law may well have been mistaken, but it may also have been an attempt to deal with the problems of the original system. And it's not clear that a system of choosing Senators by voice votes in state legislatures would have lasted without generating problems of its own.
DiLo apparently believes that we'd be doing everything today as we did in 1790, if bad or foolish men hadn't tried to change things. That looks very naive. Plenty of people who agreed with him about limiting the powers of the federal government promoted changes over time because they thought that greater popular control would provide strengthen the checks on government power. They were naive in that but it wasn't just the bad guys trying to do bad things that changed things.
Yep.
Don't forget that the same people who brought you the 17th also gave you the wonderful 16th, just two months earlier. (The 16th is direct taxation a.k.a. your federal income tax)
A Power Grab, indeed...
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I say why even have a Supreme Court? After all, NOTHING in the Constitution states that they will be the final interpreters of the Constitution; The SCOTUS gave themselves that right in Marbury v. Madison!
I say we have all Federal judges elected, with a state-appointed Senate being the final say.
Read Antifederalist papers no. 78 and 79 on this subject:
http://www.freerepublic.com/focus/f-news/1404661/posts
It doesn't matter. The New Jersey legislature will appoint whomever will look out for the New Jersey legislature.
bttt
Then why even discuss history? Who cares if the Civil War was fought over tax revenue?
Who cares if there was a PRO-SLAVERY amendment, passed by both houses and endorsed by lincoln, before the war even started?
Term limits would be of more benefit. I certainly don't trust state legislatures to appoint anyone for dog catcher, let alone a Senator.
Each state can determine whether to term-limit their senate appointees. It doesn't have to be the same across the board. That's the beauty of federalism...
Might hamper the carpetbaggers.
Oh I don't know. Perhaps because it reminds me of 4th grade school yard debating tactics? We'll just 'kill 'em'. Real mature
You know very well that the men we have in the Senate, and the women for that matter, are the kind of folks who would trade their very souls to serve even one term.
And we have even more of that kind in the separate and sovereign states. The type person a conservative would want in office is the type person that would not seek the office. And would not want to use the powers, real or derived, for concern of taking even more liberty from the citizens of the respective states
Why do I suspect you work on some Senator's staff (or know someone who does)?
Yep, that's me. Political insider billbears. My disdain for the national government as it is currently laid out is only outweighed by my disdain for 99% of those that occupy political offices within the national government. I neither work for a Senatorial office nor know anyone that does. I wouldn't work for one of those hacks if you tripled my current salary and I wouldn't associate with anyone that was proud of doing so either
At present this is a bad idea. Simply look at the nature of the creatures forming the California legislature.
If the voters aren't "bright enough" to be trusted, why would you think a state legislature dominated by 'Rats would change things? We'd still have a Kennedy and Kerry to deal with...as Massofchumpsetts would never term limit those two bums.
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