Judge Napolitano: the 17th Amendment is Unconstiutional

[Omphfullas Zamboni]

I like extra-constitutional to describe sections of the Constitution which are not in accordance with the philosophy of Original Intent.

 

[tpreitzel]

If the Constitution is amended as provided by the terms of the Constitution itself, then the amendment becomes part of the Constitution, but the meaning of the amendment, if unclear, would be interpreted with the help of the intent of the people who drafted and voted in favor of the amendment.

LOL ... You're OUT there ... in left field ... alright.

 

[Acala]

hehe

LOL ... You're OUT there ... in left field ... alright.

Standard statutory interpretation. Someone passes a law, and an amendment to the Constitution is simply passing a law at the highest level, and the intent of those who passed the law is consulted to resolve uncertainty about the meaning. You may not like it or agree with it, but that is how courts do it. It is called legislative intent. Lawyers spend vast amounts of time sifting through the Congressional record looking for comments by legislators and in committee reports that shed light on the provision in dispute trying to determine what the people who voted for the law thought it meant.

In the case of the original Constitution, the comments of the drafters in, for example, the Federalist Papers, are consulted for legislative intent, as are comments in the various ratifying conventions. In his recent, and excellent book on Nullification, Tom Woods cites comments from ratifying conventions in this way.

Accordingly, an ambiguity in an amendment passed in 1913 would be clarified by looking into the legislative history surrounding the passage of that amendment, not the intent of the Founders. Again, you may not like it, but that is how it is done.

 

[robert9712000]

Why are people being petty about the judge saying amendment is unconstitutional .

Of coarse if its in the constitution its constitutional by a strict definition of the word but its pretty obvious hes saying that it doesnt follow the original intent and purpose the forefathers were trying to establish

 

[tpreitzel]

Standard statutory interpretation. Someone passes a law, and an amendment to the Constitution is simply passing a law at the highest level, and the intent of those who passed the law is consulted to resolve uncertainty about the meaning. You may not like it or agree with it, but that is how courts do it.

Frankly, I don't give a damn how the "courts do it". I give a damn that the courts adhere to the original intent as expressed by the founders in the Federalist Papers.

It is called legislative intent. Lawyers spend vast amounts of time sifting through the Congressional record looking for comments by legislators and in committee reports that shed light on the provision in dispute trying to determine what the people who voted for the law thought it meant.

In the case of the original Constitution, the comments of the drafters in, for example, the Federalist Papers, are consulted for legislative intent, as are comments in the various ratifying conventions. In his recent, and excellent book on Nullification, Tom Woods cites comments from ratifying conventions in this way.

Legislative intent? Oh, wow. How about strictly adhering to Article 1, Section 8 for "legislative intent" at the federal level. From your comments, it's absolutely no wonder why this country is in a mess.

 

[Fox McCloud]

I've wanted to see this overturned for a long time; it would balance states desires and the people's general desires...sure, people elect the local representatives too, but they'll still be a bit more focused on what's in the best interest of their state as opposed to thinking purely federal, as our current senators do.

The second half of this should be restoring the 50-60,000 people per Congressional district.

 

[Acala]

Agreed

Why are people being petty about the judge saying amendment is unconstitutional .

Of coarse if its in the constitution its constitutional by a strict definition of the word but its pretty obvious hes saying that it doesnt follow the original intent and purpose the forefathers were trying to establish

I agree. I said he was being cute with his language. But other folks insisted that he was being serious and correct.

 

[Acala]

okay

Frankly, I don't give a damn how the "courts do it". I give a damn that the courts adhere to the original intent as expressed by the founders in the Federalist Papers.

And their original intent was that the Constitution could be changed by the specified amendment process. To the extent the 17th amendment followed the procedures the Founders deliberately and carefully put in the Constitution, the 17th amendment became part of the Constitution. To argue that following the provided amendment procedure somehow does NOT result in changing the Constitution is itself not following the original intent of the Founders because their clear intent was for the Constitution to be changeable.

Legislative intent? Oh, wow. How about strictly adhering to Article 1, Section 8 for "legislative intent" at the federal level.

I'm all for limiting Federal power to those enumerated. But, just for the sake of pissing you off, it was the Original Intent of the Founders that new powers could be added to Article 1, Section 8 by the specified amendment process and those new powers would be part of the Constitution, and hence NOT unconstitutional, no matter how much they sucked.

 

[tpreitzel]

And their original intent was that the Constitution could be changed by the specified amendment process. To the extent the 17th amendment followed the procedures the Founders deliberately and carefully put in the Constitution, the 17th amendment became part of the Constitution. To argue that following the provided amendment procedure somehow does NOT result in changing the Constitution is itself not following the original intent of the Founders because their clear intent was for the Constitution to be changeable.



I'm all for limiting Federal power to those enumerated. But, just for the sake of pissing you off, it was the Original Intent of the Founders that new powers could be added to Article 1, Section 8 by the specified amendment process and those new powers would be part of the Constitution, and hence NOT unconstitutional, no matter how much they sucked.

Some quotations of our founders pertinent to this idea:

"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."
— Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)

"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."
— George Washington, Farewell Address, 1796

​

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government." - James Madison

Now, according to Jefferson, the probable interpretation in which the US Constitution was passed specifically stresses senators appointed by the state legislatures (Federalist Papers). No it was NOT the founders' intent to allow unfettered, i.e. an amendment process contrary to the original intent contained in the Federalist Papers, regardless of your robotic assertion otherwise. Can you even see home plate?

 

[AxisMundi]

Napolitano: "The 17th Amendment is the only part of the Constitution that is unconstitutional"

http://mediamatters.org/mmtv/201011020004

To be frank, I could only watch a few minutes before my eyes started aching from rolling at the usual empty political rhetoric.

State Legislators assigning Senators was a left-over from the Continental Congress, and later te Congress of Confederation, when each State chose their ambassadors to represent them in the Continental Congress.

The 17th permitted MORE power at the Federal level for We the People by directly choosing our State's representative in Congress, thus eliminating back-room politics and plain nepotism rampant prior to the 17th.

 

[FrankRep]

To be frank, I could only watch a few minutes before my eyes started aching from rolling at the usual empty political rhetoric.

AxisMundi is not a fan of limited government, the Constitution, and Judge Napolitano.

I'm willing to guess you don't support Ron Paul either.

Reputation: AxisMundi has a little shameless bahaviour in the past

QFT

 

[oyarde]

People like Barney Frank may be a good example of why it is worth a try to go back to the way it was previously .

 

[FrankRep]

Judge Napolitano rocks.

Repeal the 17th Amendment!!

 

[AxisMundi]

AxisMundi is not a fan of limited government, the Constitution, and Judge Napolitano.

Just amazing how psychic everyone is on the Internets when it comes to talking about a perrson's political ideology after only a few posts.

Just to clear the air, I am indeed small government, not the "either/or" non-existant government you and your fellows advocate in the usual political hackery fashion. Some government is neccessary to provide basic civil services.

Also, considering the complete and utter lack of knowledge on the Constitution exhibited by many here, this part of your comment is also laughable.

And no, I am no fan of neocon media talking heads like the Judge, thank you.

I'm willing to guess you don't support Ron Paul either.

Then feel free to explain why I wrote in the name of a man I "don't support" on my ballot, as opposed to voting for McSame or BHO?

QFT

Good, means people are listening.

 

[Acala]

Confused

Some quotations of our founders pertinent to this idea:

"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."
— Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)

"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."
— George Washington, Farewell Address, 1796

​

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government." - James Madison

Now, according to Jefferson, the probable interpretation in which the US Constitution was passed specifically stresses senators appointed by the state legislatures (Federalist Papers). No it was NOT the founders' intent to allow unfettered, i.e. an amendment process contrary to the original intent contained in the Federalist Papers, regardless of your robotic assertion otherwise. Can you even see home plate?

Those quotes are all sound. But they do not pertain to the amendment process. They pertain to - and provide an unheeded warning about - changing the meaning of the Constitution through interpretation rather than formal amendment.

Find a quote where ANY Founder said the amendment process they included in the Constitution was itself limited in any way other than by its written terms.
I don't have my copy of the Federalist at hand or I would find quotes supporting the amendment process. I am sure they are there.

Your assertion is that there is some hidden limitation on the amendment process. You have no evidence for your assertion. The Original Intent of the Founders was that the Constitution could be changed by amendment. Any amendment made in accordance with the terms of the document becomes part of the Constitution.

The Founders were not so arrogant as to put into place a government that could not be changed by the states that created it or by the people it served. I sometimes wish they had.

 

[Acala]

lol

To be frank, I could only watch a few minutes before my eyes started aching from rolling at the usual empty political rhetoric.

State Legislators assigning Senators was a left-over from the Continental Congress, and later te Congress of Confederation, when each State chose their ambassadors to represent them in the Continental Congress.

The 17th permitted MORE power at the Federal level for We the People by directly choosing our State's representative in Congress, thus eliminating back-room politics and plain nepotism rampant prior to the 17th.

Yup. And the Founders all thought democracy was a great idea!!!

 

[erowe1]

Do you guys really think if an amendment were passed that legalized dictatorial power to the President that it would be Constitutional?

Yes. Of course it would be constitutional by definition.

 

[Brooklyn Red Leg]

:sigh:

Do you people NOT get it that the 16th and 17th Amendments were NOT properly ratified? That MAKES them unConstitutional! The Amendment process is SPECIFIC and if its not followed EXACTLY then the proposed Amendment has not in fact been added to the Constitution.

 

[FrankRep]

Yes. Of course it would be constitutional by definition.

erowe1 is smarter than Judge Napolitano.

http://mediamatters.org/mmtv/201011020004

 

[erowe1]

erowe1 is smarter than Judge Napolitano.

http://mediamatters.org/mmtv/201011020004

1) I don't see how that video relates to my comment that you replied to.
2) Even at that, nowhere in that video does Napolitano back up his claim that the 17th amendment is the only part of the Constitution that is itself unconstitutional.

Obviously, it goes against the Constitution as it was originally written. All amendments do. That's the point of amendments. But once ratified, amendments are just as constitutional as the original Constitution was. And the new version of the Constitution by which the constitutionality of anything can be measured is the version with the amendment in it.