Thursday, May 19, 2011

Repeal of the 17th amendment is the only thing that gives TEETH to any 10th amendment resolution

 
 
"The state governments are essentially part of the system. The senators represent the sovereignty of the states. They are in the quality of ambassadors of the states. But suppose that they were to be chosen by the people at large (17th amendment)? Whom, in that case, would they represent? Not the legislatures of the states (Article 1 Section 3), but the people. This would totally obliterate the federal features of the Constitution. WHAT WOULD BECOME OF THE STATE GOVERNMENTS, AND ON WHOM WOULD DEVOLVE THE DUTY OF DEFENDING THEM AGAINST THE ENCROACHMENTS OF THE FEDERAL GOVERNMENT?" - Fisher Ames in The Debates in the Several State Conventions on the Adoption of the Federal Constitution

"WHAT WOULD BECOME OF THE STATE GOVERNMENTS?" We have one up on Founder Fisher Ames. We can now answer that question conclusively.
Let's make the assumption that you agree that there exists an overbearing Federal Government, that the State Governments as not much more now than appendages of it, and their purpose is mostly to carry out the Federal central dictates. What is the solution to this assumed problem? Is the solution simply to reaffirm (as I spelled out in the accompanying letter) the states' 10th Amendment rights via a resolution? This would be only a fine start, it's a definitive statement of concurrence with the true intents of the Federalist system that the Founders set up with the Constitution.

But how exactly are the states' rights, state government powers and authority, that are "reserved to the States respectively, or to the people" by the 10th Amendment, implemented in order to halt Federal encroachments? Is there a single simple mechanism for achieving this? The answer lies in what caused the separation of power between state and federal governments to be dissolved.

What was the cause? There is one very simple answer. Even if you don't believe a system of Federalism was established by the Constitution, or believe that a central power in Washington is the answer to all, or even don't know what a system of Federalism is…the following review may be of some service to you.

Definition: Federalism is the constitutional division of powers between the national and state governments.

It was the conclusion of the Founders, from studying centuries of history, and multifarious forms of government, that the most essential mechanism needed to reduce the abuse of power was one that decentralized and divided power into receptacles that checked and balanced each other. I could go on for pages and pages presenting quote upon quote to prove the point. But being that you are likely acquainted with many of them, and for the sake of brevity and keeping within the scope of this letter, I will simply refer you back to the two quotes of Madison and Jefferson presented in the accompanying letter.

The system of Federalism they crafted called for separation of power-authority into two main differing realms of operation. The National government operating purely in external spheres, with matters that dealt with foreign nations, and disputes between states. The State governments were to operate purely in the internal spheres within their respective states. This dynamic created the largest and most important division and check on power to keep it from consolidating to a National center, as was the case throughout history, which always led inexorably to government oppression of the people it was suppose to protect. This dynamic also created the and most important division and check on power to keep it from reverting back wholly to the individual state level, thus recreating the failures of the Articles of Confederation, where each individual colony behaves as its own nation within itself. This reversion would have led to the danger of external conquest, state by state.

How then was this proper Constitutional federalist separation to be sustained? Precisely the same way it had been laid out from the beginning. I restate what I said earlier in this letter:

"But how exactly are the states rights, state government powers-authority, that are 'reserved to the States respectively, or to the people' by the 10th Amendment implemented? Is there a single simple mechanism for achieving this? The answer lies in what caused the separation of power between state and federal governments to be dissolved."

For those with ears to hear, it is not enough for a State to reaffirm its 10th Amendment rights, and not have in place the "lost" mechanism, the "teeth" to exercise them. These "teeth" are to be found in the same place they ever were, that which was lost by the 17th Amendment, that in turn caused the proper federalist separation to be dissolved.

Article 1 Section 3: The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof

Seventeenth Amendment: The Senate of the United States shall be composed of two Senators from each state.

The Founders had assigned the Senate the responsibility of representing the states as sovereign entities. This is why Senators at the federal level were appointed by the state legislatures rather than being elected directly by the people of the state. It was so that Senators would not be compelled to involve themselves in the popular issues of the day (always at the task of hearing "the voice of the people" in order to win re-election), but could concentrate primarily on the protection of states' rights from the encroachments of the National government. Their primary assignment was one of balancing the budget, keeping taxes as low as possible, tempering the radicalism of the House, and serving as the "elder statesmen" of the Congress.
Despite the Founders' intentions, all of this was changed by the Seventeenth Amendment. In effect, this made both the Senate and the House a reflection of the popular will, both to be violently tugged and tossed by the less-informed populace for their re-election survival. So they would become less in touch with the sovereign interests of the states (which were distilled into their purest form in the state legislatures), or the checks and balances which the states were to have provided through their Senators.

It was understood, and still remains true, that the state legislatures would most certainly be more informed of all the concerns and interests of all the counties in their respective states than would the populace directly. Thus they would be in a much more enlightened position to appoint these "ambassadors of the state" to wholly represent the state as a state check upon a less informed House of Representatives at the federal level, and the wholly national nature of the Executive. This was the federalism of the Founders. The nature of the appointing of Senators was a vital element in the Federalist system. In fact, it was so vital that James Madison had this to say about it in The Federalist Papers no.39:

"The Senate, on the other hand, will derive its powers from the states, and in this respect the government is federal, not national."
Another way of putting it is, "If the Senate does not derive its powers and authority directly from the appointment by the state legislature, then this system is in no way a federalist one." Yet another way of putting it is, "If this system of federalism is not upheld in this manner, we will eventually have no separation of powers between the state governments and the national government." Or, as Jefferson put it, we will wander into a miasma of boundless power-grabbing Federal government law, unanchored by any Constitutional basis:

"I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition." To President George Washington, opinion against the constitutionality of a national bank, 15 February 1791
It is of no coincidence that in 1913, once this vital mechanism of this system of federalism was stripped by the 17th Amendment, immediately thereafter, in the same year, the most egregious encroachments of the national government into the realm of state government authority occurred. Those being the Federal Reserve, and the national income tax with it Cerberus, the IRS.

Here is the full quote from Fisher Ames:

"The state governments are essential parts of the system.... The senators represent the sovereignty of the states; in the other house, individuals are represented.... They are in the quality of ambassadors of the states, and it will not be denied that some permanency in their office is necessary to a discharge of their duty. Now, if they were chosen yearly, how could they perform their trust? If they would be brought by that means more immediately under the influence of the people, then they will represent the state legislatures less, and become the representatives of individuals. This belongs to the other house. The absurdity of this, and its repugnancy to the federal principles of the Constitution, will appear more fully, by supposing that they are to be chosen by the people at large. If there is any force in the objection to this article, this would be proper. But whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on whom would devolve the duty of defending them against the encroachments of the federal government? A consolidation of the states would ensue, which, it is conceded, would subvert the new Constitution, and against which this very article, so much condemned, is our best security. Too much provision cannot be made against a consolidation. The state governments represent the wishes, and feelings, and local interests, of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights."
 

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A proposed amendment to the U.S. Constitution, designed to repeal the 17th Amendment, follows:

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 reappointed. Each Senator shall have one vote.

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.

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.

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.

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. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislatures.

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