REPEAL THE 17TH AMENDMENT
After the September 11, 2001, terrorist attacks, the federal government announced that it would preempt all state jurisdiction over airport security. The federal government preempted state powers without regard to balancing federal and state responsibilities so that these responsibilities, and related costs, could be distributed across federal, state, and local governments. To carry out this preemption, the federal government recently reported that it will employ more than 47,000 federal recruits in the fight against terrorism as newly trained security screeners. They are to begin working at 424 airports nationwide.
These developments, and numerous others in the past, remind us that there are no checks and balances available to the states over federal power or over Congress itself in any area. However, in the history of our country, it was not always this way. In the original design by the Framers of the U.S. Constitution, there was an effective check on Congress through the state legislatures' power to appoint (and remove) United States Senators.
As such, the core of the problem with federal preemption lies in the passage of the 17th Amendment which abrogated the state legislatures' right to appoint United States Senators in favor of popular election of those officials. This amendment created a fundamental structural problem which, irrespective of the political party in office, or the laws in effect at any one time, will result, over time, in expanding federal control in every area. In addition to preemption issues, it caused a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and federal control over a number of state institutions.
The amendment also caused a fundamental breakdown in campaign finance issues with respect to United States Senators. As to United States Senators, campaign finance reform, which has been a hot topic in Congress, can be best achieved by repealing the 17thAmendment to the United States Constitution. It should be readily apparent that United States Senators, once appointed by the state legislature, would have no need for campaign financing whatsoever.
The reason for the passage of the 17th Amendment should be stated. The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power. The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator. When deadlocked, a state would go without representation in the Senate. For instance, in the very first Congress, the State of New York went without representation in the Senate for three months. Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks. The problem of deadlocked legislatures continued unabated from 1787 until 1913. The 17th amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power. Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact.
The 17th Amendment should be repealed. This would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the present status of the state legislatures from that of lobbyists, to that of a partner in the federal political process. The state legislatures would then have the ability to decentralize power when appropriate. It would give state legislatures direct influence over the selection of federal judges and the jurisdiction of the federal judiciary and much greater ability to modify the power of the federal judiciary. This structure would allow the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change. Figure A at left portrays the existing relationship between the states and the federal government. This relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little hope of return.
With the passage of the following proposed amendment, the state legislatures would have the ability to decentralize power when appropriate. After passage, it would primarily be the state legislatures interacting with their appointed senators, and not with the other branches of the federal government, that would establish the "line" between the federal and state governments. Figure B shows the effect of the passage of the proposed amendment on the relationship between the governments. This structure allows the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change. This structure also exemplifies the original concept of the Framers of the Constitution.
A proposed resolution and amendment to the U.S. Constitution, designed to repeal the 17th Amendment and fix the procedural problems, follows:
A Joint Resolution of the Senate and the House of Representatives of the State of ___________ to declare as defective the current process of choosing Senators for the United States Senate; to request that Congress transmit for consideration by states of the United States a new amendment that repeals the 17th Amendment to the United States Constitution and provides for state legislatures to elect members of the United States Senate and creates liaison committees; informing the President of the United States Senate, the Speaker of the United States House of Representatives and each Member of the State's Congressional Delegation of the request for repeal of the 17th amendment and submission of a new amendment to the United States Constitution.
WHEREAS, the Founding Fathers came to a great compromise at the Constitutional Convention of 1787 and provided for proportional representation in the House of Representatives of the United States and equal representation for the states in the Senate of the United States; and
WHEREAS, the Founding Fathers determined that equal representation of the states in the Senate of the United States recognized the individual sovereignty of each state; and
WHEREAS, Alexander Hamilton in the Federalist Papers, Number 27, concluded that because the legislatures were select bodies of men, the choice of United States Senators would generally be made with peculiar care and judgment by the legislatures, a selection process originally provided for in Article I, Section 3, Clause 1 of the Constitution of the United States; and
WHEREAS, the Tenth Amendment declared a division of authority between the states and the United States and was for the first 140 years of this nation invoked by the Supreme Court of the United States as a constitutional limit of congressional power as against the powers of the several states; and
WHEREAS, the election of the United States Senators by the state legislatures was the political mechanism against congressional encroachment into the sovereignty of the states; and
WHEREAS, one of the essential aspects of the states' exercise of this political mechanism is the United States Senate's advice and consent for treaties and appointments of executive and judicial officers made by the President of the United States; and
WHEREAS, the ratification of the Seventeenth Amendment in 1913 changed the election of the United States Senators from the state legislatures to the popular vote of the people of the states, thereby divesting the states of any direct voice in the federal government; and
WHEREAS, due to the differing modes of representation and election in the House and the Senate prior to 1913, each branch provided a balance of legislative power against, and an independent check upon, the other; and
WHEREAS, prior to 1913 history reveals that in choosing their Senators, the individual state legislatures supported the federal government, thereby providing harmony between the governments of the states and the government of the United States; and
WHEREAS, the Congress of the United States has, since the ratification of the Seventeenth Amendments, steadily encroached upon the sovereignty of this and the other states united by and under the Constitution of the United States; and
WHEREAS, a Senator's general responsibility is to represent state government and the state legislature; and
WHEREAS, since not all state legislatures are in session when the United States Congress is in session, a method is required for keeping states informed when critical federal action is taking place and providing states with a role for reviewing federal legislation and treaties and for defining each state legislature's relationship to the appointed senators; and
WHEREAS, the state legislature has a role in compelling accountability from United States Senators; and
WHEREAS, a state has the right to prescribe its own procedures regarding the selection process for United States Senators, including appointments in the case of deadlock.
NOW, THEREFORE, BE IT RESOLVED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE STATE OF ___________:
(1) That the Legislature of this State finds and declares to be defective the current process of electing United States Senators by the popular vote of the people which fails to represent the interests of the individual states.
(2) That the Secretary of this State transmit certified copies of this Resolution to the President of the United States Senate, the Speaker of the United States House of Representatives, and each Member of this State's Congressional Delegation.
(3) That the Congress, in accordance with Article V of the Constitution of the United States, immediately transmit to the several states for ratification the amendment to the United States Constitution, as described in subsection (4), repealing the Seventeenth Amendment and resolving the procedural problems, particularly the problem of the deadlocked state legislature, inherent in the original concept:
(4) The amendment reads as follows:
An Amendment to Repeal the Seventeenth Amendment
and Re-link the States to the Federal Political Process.
Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.
Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.
Comment: This section is intended to place the power of selection back in the hands of the state legislature.
Section Three. Among the duties of each Senator is the primary duty to represent the government of their State, and in particular, their State's Legislature, in the Senate. For the purpose of maintaining communications with its Senators, each State Legislature shall establish a liaison committee and shall specify the duties, procedures, and method of appointment of that committee. This committee shall work with its United States Senators in evaluating the impact of federal legislation on their State. All legislation proposed by Congress, and all treaties proposed, shall be submitted to each State's liaison committee.
Comment: This section describes a Senator's general responsibility for representing their state government and state legislature. This section also requires that each state establish a liaison committee. This committee is intended as a communications link and advisory body to the state legislature and not as a decision-maker for the state legislature. It should function during periods when the state legislature is not in session so those legislators can be alerted when critical federal action is taking place. Depending on the state, the committee may be made up of state legislators alone or, if so desired, could also be made up of legislators, members of the state's executive and judicial branches, and non-governmental members. Another objective of this provision is to allow each state legislature to define the relationship with their appointed senators. It also requires the committee to be given notice of proposed federal legislation and treaties. Thus, it addresses the holding of South Carolina v. Baker, 485 U.S. 505 (1988), in which the Supreme Court held that in order in invalidate an act of Congress the states would have to show that the federal political process operated in a defective manner. Thus, a failure to submit proposed legislation and treaties to a state's liaison committee constitutes a failure in the political process.
Section Four. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.
Comment: This section allows the state legislature to compel accountability from Senators. A voting majority is specified in order to preclude a federal court's imposition of a super-majority.
Section Five. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this amendment, related to the selection and removal of Senators. A State Legislature may implement a selection procedure whereby the State Legislature selects a Senator by a plurality vote rather than a majority. If a State Legislature fails to enact a selection procedure, then the State Legislature shall sit as a single body and shall select a Senator by a plurality vote. Irrespective of the procedures followed by the State Legislature, if the State Legislature does not choose a Senator within thirty days after a vacancy, the Governor of the State shall select the Senator.
Comment: This section gives each state the power to prescribe their own procedures and enact rules or legislation if other problems arise in the selection process. This would allow each state to solve its own procedural problems as they occurred. It also provides a default procedure in the event that a state does not choose a method. In the event of a deadlock, the Governor can break the deadlock. This would avoid all of the problems that occurred in the original concept. The plurality power is specified to assure that a federal court does not impose a majority vote. This section is not intended to lock a particular method in place, except as a default. For instance, a state legislature may choose to keep popular election and then validate the results of the election. Additionally, the state could choose a merit selection method by which a slate of names are submitted to the governor for selection. Alternatively, each house of the state legislature could choose a Senator, each by a different means. Successive elections until a majority is achieved could be implemented. Again, it is intended by this section to allow variability in the selection process limited only by the requirement that the selection be completed within thirty days. This should eliminate the deadlock issue.
Section Six. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution. All state legislative proceedings, including, but not limited to, those concerning the liaison committee, procedural issues, and the selection and removal of a Senator are open to the public. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislatures.
Comment: This section allows for the phase-out of popular election. It also provides for open meetings as to any procedural and selection proceedings to promote public involvement in the process. This amendment is not intended to impact elector issues.
John MacMullin (firstname.lastname@example.org) practices law in Phoenix, Arizona. He has written extensively in the law literature on the 17th Amendment. See MacMullin J., "Amplifying the Tenth Amendment," 31 Ariz.L.R. 915 (1989).
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