Judge Napolitano: the 17th Amendment is Unconstiutional

[AxisMundi]

Except the state governments themselves have no representation in Washington.

In fact, our Senators can continue to centralize power in D.C. and demolish any legitimate constitutional authority the states have, with very little recourse on the federal level.

There is nothing different in that aspect from prior to the 17th and after it was ratified and became part of the Constitution.

Indeed, the South left over an increasingly powerful central federal government.

Having the State Legislature choose our representative, as opposed to us, also stinks to the highest heavens of a "government knows better than we do" mentality to me, to be frank.

The same people will seek a Senate seat, whether it is the State legislature or We the People who choose them, and they take that same mentality to Congress with them.

The difference is, now we can "fire" a Senator who isn't performing their task to our liking.

Change will come at the voting booth, and at the mail boxes of our Elected Employees in the Senate if We the People are willing to get off our collective keesters and canvas our Elected Employees.

Change will not occur in a Constitutional Convention.

 

[AlexMerced]

I wouldn't say any ammendment is unconstitutional, cause that's the point of an ammmendment to make something previously unconstitional, constitutional. Although, when disagreeing with someone over how things should or shouldn't be and use of the federal government in that area, then discussing ammendment is the appropriate mechanism for the debate.

 

[FrankRep]

I wouldn't say any ammendment is unconstitutional,

If the Amendment conflicts with the Constitution itself, it's unConstitutional.

 

[tpreitzel]

LOL ... Personally, from the founders very own remarks, this matter is already settled. The 17th amendment is unconstitutional because it violates original intent, i.e. it changes the form of government from a republican form, i.e. state legislature appointed senators, to a democratic form, i.e. popularly elected senators. The founders of this country expressly discouraged democratic government, i.e. mob rule, in the Federalist Papers and in their private communications. Secondary issues like ratification are important, but not central to the determination of an amendment being unconstitutional. Original intent is the central issue. One could probably successfully argue that ALL amendments after the 12th are unconstitutional because they alter the form of government, i.e. they shift the balance of power away from the states to the federal government, i.e. these amendments violate the 10th, or directly alter the republican form of government like the 17th.

 

[RPgrassrootsactivist]

I see nothing in your link suggesting anything even remotely fishy about the17th or it's ratification process.

There are date discrepancies, missing records and, in many of the records that are there, word changes. You don't see anything even remotely problematic?

Senators remain representatives of the State at the will of the population of that State.

Senators have been turned into representatives of the people, not the State (government). There is a significant distinction between the two. The citizens of a state are not the State government.

 

[Dripping Rain]

The Judge rocks and makes us think
very interesting indeed.

 

[RPgrassrootsactivist]

We the People hire, through the democratic process, our State Legislature, our Elected Employees.

Correct, although I wouldn't necessarily call it "democratic."

Since the 17th, We teh People also hire our State's congressional representative.

And this is the problem. If the people are electing senators, then senators are not representing the State as a government; they're representing the people in the state (in theory, anyway).

The only thing the 17th changed was to move the selection of our State's Congressional Representative out of the realms of backroom political dealing and bought seats, and placed We the People in charge.

State's Rights are preserved in the preservation of something even more important, We the People, who can now choose to hire a Senator, or remove them from office during the election process.

I understand your concern for keeping the people in authority over the government. The 17th actually reduces citizen control over government. State sovereignty is not about elevating State governments above that state's citizens; it's about preventing centralization of government (which always moves in the direction of undermining liberty).

You have to understand the political philosophy which was adhered to in the days of the founding. The States are independent nations joined into a confederated union for mutual benefit (primarily foreign relations and defense). The federal government is not some superior government that rules over the States. Bypassing these principles and removing the representation of the States without their consent violates the contractual principles upon which the Constitution was enacted.

 

[RPgrassrootsactivist]

Having the State Legislature choose our representative, as opposed to us, also stinks to the highest heavens of a "government knows better than we do" mentality to me, to be frank.

The same people will seek a Senate seat, whether it is the State legislature or We the People who choose them, and they take that same mentality to Congress with them.

That's not necessarily true. Running a competitive race for the Senate these days takes an extraordinary amount of money. If legislatures were electing senators, someone who wanted to be a Senator would only need to make the case for their candidacy to the legislature. Any direct appeal to the population in regard to U.S. Senate elections would likely only involve trying to get certain candidates elected to the legislature.

The end of popular election of senators would allow distinguished community leaders, who may not have massive financial resources, to be considered for Senate seats. Senators could then be chosen for their commitment to the principles adhered to by the community and the legislature, and the legislature could hold them accountable.

The difference is, now we can "fire" a Senator who isn't performing their task to our liking.

Change will come at the voting booth, and at the mail boxes of our Elected Employees in the Senate if We the People are willing to get off our collective keesters and canvas our Elected Employees.

How often does this happen? Congressional incumbents are typically re-elected due to public ignorance, vote fraud, or both. Do you think your Senator actually cares what you, as one voter, think? No matter how much you protest against their actions, unless you're some major media or political leader in your state they probably don't care because you can't do much to damage their campaign. If they lose your one vote, or even the votes of you and your family and friends, what do they care?

However, if they had to answer to a legislature composed of about one to two hundred members, in a situation where one individual legislator has the potential to influence the floor debate, they would be far more likely to care what one individual legislator thinks.

As far as how the people relate to this, you're much more likely to be able to influence your state legislators than you are any member of Congress. If you want to, you can probably call or write your legislators and get a personal response. And you, as one voter, probably can make a significant impact in a state legislative race if you expend the effort.

So compare the two situations:

1. You as one voter among millions try to influence a senator.

2. You as one voter among thousands try to influence your state legislators, who as one legislator among hundreds try to influence a senator.


In the second situation, the people and the States both have more influence, and the States retain their political sovereign control over the Senate.

 

[robert9712000]

See the way i understood it and correct me if im wrong is the 17th amendment takes away a check and balance that the state had with the federal government.

The way it used to be the senate was elected through state legislator and thus gave the state some kind of check on the federal government and the house was supposed to be 1 representative per 30k people thus giving a check through the people.(and yes i know the changes in the house wasnt in the 17th amendment but it carries the same role in centralizing the feds power)

Now you have neither and the the power of the fed has been made more centralized,the fewer people in control the stronger control they have.So in my opinion the 17th took away a check the state had on the federal government.

The people still had control too over the senate,if they didnt like what the state legislature did with the senate they could vote them out.It makes it alot harder imo for parties to have control when the representation is set up the way the forefathers had it

 

[Live_Free_Or_Die]

Let's stop all of the bullshit...

If the 17th Amendment is unconstitutional due to some theory it contradicts original intent then the WHOLE CONSTITUTION is unconstitutional because it contradicts the original intent of the original PERPETUAL CONSTITUTION... the Articles of Confederation.

Article XIII. Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.

Now how many ways should I join other people picking apart the ridiculous argument an amendment is not constitutional?

Should I point out the first president was elected before all states ratified the Constitution?

Now I don't have a problem with it at all... throw out the unconstitutional Constitution and restore the perpetual constitution... Articles of Confederation.

A couple people pointed out the 17th Amendment was not properly ratified and some uneducated people quickly dismissed them. Educate yourself:
http://www.devvy.com/new_site/17th_amendment_docs_march_2010.html

 

[AxisMundi]

There are date discrepancies, missing records and, in many of the records that are there, word changes. You don't see anything even remotely problematic?

Newp, nothing "fishy" in the least. I see a duly ratified Amendment whose purpose was to put more power in the hands of We the People, and to eliminate graft, corruption, and political nepotism in Senate appointments.

Senators have been turned into representatives of the people, not the State (government). There is a significant distinction between the two. The citizens of a state are not the State government.

Senators still represent the State, and We the People are certainly our State Governments as well. We are also our county, town, city/village governments too. All levels of government are supposed to carry out the will of We the People, and our Elected Employees serve at our sufferage.

Now, if someone can show a major shift in Senate policy, procedure, or collective mentality that had occurred during, or shortly after, 1913, then an argument could be made to repeal the 17th.

To date, what I see is merely a politically motivated distraction, a false rally cry built up around the simple fact that our federal level has indeed become too large and too powerful.

It is a distraction that wouldn't really fix anything, and could, conceivably, open the gates to more than just the 17th being eliminated and include the rapine of what remains of our Constitution.

 

[AxisMundi]

LOL ... Personally, from the founders very own remarks, this matter is already settled. The 17th amendment is unconstitutional because it violates original intent, i.e. it changes the form of government from a republican form, i.e. state legislature appointed senators, to a democratic form, i.e. popularly elected senators. The founders of this country expressly discouraged democratic government, i.e. mob rule, in the Federalist Papers and in their private communications. Secondary issues like ratification are important, but not central to the determination of an amendment being unconstitutional. Original intent is the central issue. One could probably successfully argue that ALL amendments after the 12th are unconstitutional because they alter the form of government, i.e. they shift the balance of power away from the states to the federal government, i.e. these amendments violate the 10th, or directly alter the republican form of government like the 17th.

The Founder's Intent is well preserved. Indeed, it has been supported by the 17th, if anything.

We the People now have direct control of both houses of Congress.

 

[PaulineDisciple]

If something contradicts previous portions of the constitution without the previous portion being repealed or ammended, you can say that it is unconstitutional.

 

[robert9712000]

The people do have a direct say now in house and senate,but the thing i liked about the old system is there a was sort of check and balance of the state over the federal government and the people still had a say through the state legislator ),now the states have no check over the feds

 

[RPgrassrootsactivist]

Newp, nothing "fishy" in the least. I see a duly ratified Amendment whose purpose was to put more power in the hands of We the People, and to eliminate graft, corruption, and political nepotism in Senate appointments.

I don't see how you cannot perceive at least somewhat of a problem if you've looked at the article at http://www.devvy.com/new_site/17th_amendment_docs_march_2010.html

Do you really think it's normal for that many records regarding something as important as a constitutional amendment to be missing from a variety of different archives?

Senators still represent the State, and We the People are certainly our State Governments as well. We are also our county, town, city/village governments too.

This is wrong. You apparently don't understand the difference between a state as a body politic and a State as a government.

All levels of government are supposed to carry out the will of We the People, and our Elected Employees serve at our sufferage.

Yes, all government is supposed to (in theory) exist at the will of and for the benefit of the people, but that doesn't mean that there is no difference between the people and the government. This was well understood in the days of America's founding, and the people believed it to be to their benefit to maintain the sovereignty of their State governments independently of direct democracy.

Now, if someone can show a major shift in Senate policy, procedure, or collective mentality that had occurred during, or shortly after, 1913, then an argument could be made to repeal the 17th.

To date, what I see is merely a politically motivated distraction, a false rally cry built up around the simple fact that our federal level has indeed become too large and too powerful.

It is a distraction that wouldn't really fix anything, and could, conceivably, open the gates to more than just the 17th being eliminated and include the rapine of what remains of our Constitution.

A lot of things changed in Congress after 1913. It started earlier than that, but rapid escalation began after 1913. You should read Thomas DiLorenzo's Hamilton's Curse and The Real Lincoln.

Furthermore, this isn't just about repeal; remember, Judge Napolitano's claim is that the amendment is unconstitutional, not just a bad idea. That's the issue I addressed at http://www.ronpaulforums.com/showpost.php?p=2966055&postcount=57

 

[RPgrassrootsactivist]

If the 17th Amendment is unconstitutional due to some theory it contradicts original intent then the WHOLE CONSTITUTION is unconstitutional because it contradicts the original intent of the original PERPETUAL CONSTITUTION... the Articles of Confederation.

This may or may not be true. I've thought about this issue before. The first question is, did "perpetual" in the Articles mean that a State couldn't secede from it, or did it simply mean that there was no established sunset provision for the expiration of that union? I don't know; I've heard it argued both ways, and I never researched it thoroughly enough to make a determination.

I do believe that some time ago, though, I was reading in some book (I think it may have been written in the 19th century) which explained the theory that the Constitution was able to contractually supplant the Articles because it was an exercise of popular sovereignty, i.e., the people of the states, acting via popularly-elected ratifying conventions, choosing to abolish the existing governmental structure and institute a new one.

I also want to say something about the use of the phrase "original intent" in this debate. If we take "original intent" to mean the format and power delegation of the Constitution when it was first ratified, then of course an amendment can and does alter original intent; that's the entire point of an amendment.

The argument here, though, is that an amendment cannot fundamentally undermine the contractual basis upon which the Constitution was enacted. I don't really call that "original intent."

 

[AxisMundi]

I don't see how you cannot perceive at least somewhat of a problem if you've looked at the article at http://www.devvy.com/new_site/17th_amendment_docs_march_2010.html

Do you really think it's normal for that many records regarding something as important as a constitutional amendment to be missing from a variety of different archives?

This is wrong. You apparently don't understand the difference between a state as a body politic and a State as a government.

Yes, all government is supposed to (in theory) exist at the will of and for the benefit of the people, but that doesn't mean that there is no difference between the people and the government. This was well understood in the days of America's founding, and the people believed it to be to their benefit to maintain the sovereignty of their State governments independently of direct democracy.

A lot of things changed in Congress after 1913. It started earlier than that, but rapid escalation began after 1913. You should read Thomas DiLorenzo's Hamilton's Curse and The Real Lincoln.

Furthermore, this isn't just about repeal; remember, Judge Napolitano's claim is that the amendment is unconstitutional, not just a bad idea. That's the issue I addressed at http://www.ronpaulforums.com/showpost.php?p=2966055&postcount=57

1. No, I do not see a problem with missing records. Are you aware of the early Congressional record keeping of our country? And what missing documents (a clear distraction), pray tell, would invalidate an Amendment that went through both Houses and was signed into Law? One would first assume that if the Amendment hasn't passed in either House, that House would have said, at the time, "Woah, hold on a tick..."

2. I am well aware of the difference between a state and a State. What you, apparently, are not aware of is that, with the ratification of the Constitution, the individual States chose to give up their individual sovereignty, and "From Many...", become "One."

Prior to the Constitution we were indeed thirteen individual, separate, and sovereign nations/countries/States, united only by a common goal and geographically linked borders. That sovereignty gave way to a central government that replaced the, for all intents and purposes in a modern example, a United Nations atmosphere.

3. I will refer you to the Preamble of the Constitution to provide an example of how you are incorrect in your statements that the g'ment is not We the People.

4. The good Judge is nothing more than a right-wing neocon empty suit sputtering inconsistent empty rhetoric looking for his Ann Coulter/Rush Limbaugh style 15 minutes of fame (and millions in television appearances and book deals). So you'll excuse me if I don;t take his remarks seriously.

Being a Judge doesn't make one automatically credible and infallible.

 

[AxisMundi]

......A lot of things changed in Congress after 1913.

Please enumerate these changes.

Taxes? Well before 1913.

More powerful federal level? Since day one.

 

[RPgrassrootsactivist]

1. No, I do not see a problem with missing records. Are you aware of the early Congressional record keeping of our country?

I'm beginning to wonder if you even read the source I provided. The missing records are primarily in the state archives.

And what missing documents (a clear distraction), pray tell, would invalidate an Amendment that went through both Houses and was signed into Law?

Without the records, you don't have proof that the amendment was actually passed.

One would first assume that if the Amendment hasn't passed in either House, that House would have said, at the time, "Woah, hold on a tick..."

Don't count on it. This was almost 100 years ago; it was much easier to do things under the cover of darkness. For example, look at how the Federal Reserve Act was passed.

2. I am well aware of the difference between a state and a State. What you, apparently, are not aware of is that, with the ratification of the Constitution, the individual States chose to give up their individual sovereignty, and "From Many...", become "One."

This is completely incorrect. You lack a fundamental understanding about early American history and the political theory that was held by the founders and the population at large. What you are describing is the a-historical nationalist theory of the Union, largely invented by people like Daniel Webster and Supreme Court Justice Joseph Story and based upon the flawed and largely-rejected beliefs of Alexander Hamilton.

Prior to the Constitution we were indeed thirteen individual, separate, and sovereign nations/countries/States, united only by a common goal and geographically linked borders. That sovereignty gave way to a central government that replaced the, for all intents and purposes in a modern example, a United Nations atmosphere.

Wrong again; the states maintained their sovereign nationality even after the Constitution was ratified. Alexis de Tocqueville made that very observation in his famous visit to the early United States.

3. I will refer you to the Preamble of the Constitution to provide an example of how you are incorrect in your statements that the g'ment is not We the People.

The preamble originally read, "We the States." The change to "We the People" was made by the Committee on Style, indicating that it was a change in rhetoric and not in the nature of the document. Once again, the incorrect conclusions you're drawing are based upon the a-historical nationalist theory of the Union.

In addition to Thomas DiLorenzo's Hamilton's Curse and The Real Lincoln, you should also read Kevin Gutzman's The Politically Incorrect Guide to the Constitution and Tom Woods' Nullification. When you see the mountains of historical evidence in those books, hopefully you'll see how mistaken you really are.

4. The good Judge is nothing more than a right-wing neocon empty suit sputtering inconsistent empty rhetoric looking for his Ann Coulter/Rush Limbaugh style 15 minutes of fame (and millions in television appearances and book deals). So you'll excuse me if I don;t take his remarks seriously.

At this point, I don't take you seriously. Not only have you demonstrated a fundamental lack of understanding about early American history and political theory, but you actually think that Judge Napolitano, one of the best allies the freedom movement has, is a neocon along the lines of Coulter and Limbaugh? Unbelievable.

 

[Pericles]

Let's stop all of the bullshit...

If the 17th Amendment is unconstitutional due to some theory it contradicts original intent then the WHOLE CONSTITUTION is unconstitutional because it contradicts the original intent of the original PERPETUAL CONSTITUTION... the Articles of Confederation.



Now how many ways should I join other people picking apart the ridiculous argument an amendment is not constitutional?

Should I point out the first president was elected before all states ratified the Constitution?

Now I don't have a problem with it at all... throw out the unconstitutional Constitution and restore the perpetual constitution... Articles of Confederation.

A couple people pointed out the 17th Amendment was not properly ratified and some uneducated people quickly dismissed them. Educate yourself:
[url]http://www.devvy.com/new_site/17th_amendment_docs_march_2010.html[/URL]

This language from Article V "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." could be construed to make the requirement for ratifying the 17th Amendment mandatory for all states, as they woulod have to consent to the change.