Judge Napolitano: the 17th Amendment is Unconstiutional

[tpreitzel]

Your position is not clear.

Now you're saying that the amendment process cannot violate the Constitution. There has been no disputing that point anywhere in this thread.

But earlier it looked like you were saying an amendment is unconstitutional, not just if gets ratified via a process that violates the Constitution, but if the provisions contained within the amendment itself contradict those in the original Constitution. If this was really what you meant, then that would be totally different from what you're now saying. And it would be totally indefensible on both moral and constitutional grounds.

LOL ... What? I'm saying the amendment process cannot violate the original intent of the US Constitution which I've CONSISTENTLY stated.

 

[erowe1]

I support the Founding fathers and I support the Original intent of the Constitution. I'm sorry if you feel different.

If you do, then you also support the view which the founding fathers held, and which they included in the Constitution, which is that if there was any point at which it was ever found to be in need of correction, there was a process by which that correction could be made via an amendment.

If you don't accept that, then you don't support the original intent of the Constitution.

 

[erowe1]

LOL ... What? I'm saying the amendment process cannot violate the original intent of the US Constitution which I've CONSISTENTLY stated.

That's not what you've consistently stated.

But if that's all you mean, then that point has never been disputed here.

It also has nothing to do with anything Napolitano said.

 

[FrankRep]

If you do, then you also support the view which the founding fathers held, and which they included in the Constitution, which is that if there was any point at which it was ever found to be in need of correction, there was a process by which that correction could be made via an amendment.

If you don't accept that, then you don't support the original intent of the Constitution.

Why are you putting words in my mouth? Where did I say I was against extra amendments?

 

[tpreitzel]

Some people here seem to be confused as to what the Judge is saying and why it is a legitimate argument.

First, when the Judge says the amendment is "unconstitutional," he doesn't just mean it's a bad idea. The Judge also thinks the 16th is a bad idea, but he doesn't call it "unconstitutional" (even though many people have doubt as to whether or not it was validly ratified). When he says the 17th is unconstitutional, that's actually what he means.

Second, the Judge is not saying that the 17th amendment is unconstitutional just because it violates original intent; if that were true, no amendment would be valid, but Article V clearly allows for amendments.

Here is the basic premise: the Constitution is a compact (i.e., contract) amongst the States and the people of the several States. The Judge is probably saying something like that it is illegitimate under historic contract law (be it natural law or common law) for a contract to be fundamentally undermined without the consent of all parties. The amending power of Article V was intended to deal with things like increases or decreases in power, other policy issues, etc., not to be able to fundamentally undermine and usurp the foundational principles upon which the contract was enacted; to change those things would require the consent of all parties (possibly through the creation of a different Constitution, i.e., a new contract).

Because the States as sovereign political entities were integral to the formation of the Constitution, and the defense of their sovereignty and inclusion in the federal government (by sending senators as their representatives) was an essential component of the entire constitutional structure, it was unconstitutional and hence illegitimate to use the amending power to remove the representation of the sovereign States (as political entities) from Congress.

Furthermore, to go beyond what the Judge basically seems to be saying, it is self-evident that the amending power is not unlimited; Article V even lists two specific things that could not be amended (one of which had a date limit on it, regarding the importation of slaves). The other thing that could not be amended is that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." The Constitution clearly says that no amendment could ever be passed that would deprive any State of its equal suffrage in the Senate without its consent.

What did "State" mean in that context during the 1780's? When speaking of senatorial representation, it meant state government, because it was state governments that were represented and hence had suffrage in the Senate. And when the Constitution says "equal suffrage," it's highly unlikely that the ratifiers and general public would have understood that to mean that no suffrage at all was acceptable. But the 17th amendment took away all senatorial suffrage from every state government. However, not every state legislature that was in the union in 1913 (there were 48) consented to the amendment. Thus, those states which did not consent were deprived of their suffrage rights in the Senate. Thus, the 17th amendment is unconstitutional.

In addition, there are also a number of discrepancies in the actual ratification process of the 17th. The article at [url]http://www.devvy.com/new_site/17th_amendment_docs_march_2010.html[/URL] provides a good general overview.

This is not just a theoretical issue; we're talking about usurpation on a grand scale. If the 17th amendment is unconstitutional, then all senators elected under its authority hold office illegitimately. That would mean that essentially everything the federal government has done for almost the past 100 years (all laws, treaties, appointment confirmations, subsequent constitutional amendments, etc.) have been unconstitutional because all of those things require Senate approval.

Good. I agree with most of the comments.

 

[tpreitzel]

That's not what you've consistently stated.

Prove it.

 

[erowe1]

Prove it.

It's too late for me to prove it now. You edited your post #55 at 10:34 pm and added in the word "process." As the time stamps on the comments in this thread show, that was after I called you out and before you challenged me to prove it.

But if all you're saying now is that the process by which an amendment is made must not violate the Constitution, then once again, I don't dispute that.

As long as we're agreed that it is allowable to pass amendments that change the Constitution from what it was originally intended to ordain, then I don't think our positions differ.

 

[tpreitzel]

It's too late for me to prove it now. You edited your post #55 at 10:34 pm and added in the word "process." As the time stamps on the comments in this thread show, that was after I called you out and before you challenged me to prove it.

Oh dear Lord .. Did I amend the original intent of my post in YOUR opinion? LOL ... No, I just added more information to it, i.e. clarified it via a personal amendment. <chuckle>

 

[erowe1]

Why are you putting words in my mouth? Where did I say I was against extra amendments?

I'm putting words in your mouth?

Did you not reply to me and end your reply with the words "I'm sorry if you feel different"?

Were you not implying that the point of your post was to differ from the point I made in the post you were replying to, and that in that post I was expressing something contrary to the original intent of the founders? If that was your intent, then I did not put words in your mouth, but accurately represented your position. If it was not your intent, then you have yourself to blame for saying something you didn't mean.

 

[tpreitzel]

Oh no, you're not pulling THAT BS with me. In post #55, I simply bolded, if so, which was already THERE from the git-go along with the word, process ... sorry, you're just an poor reader and looking for any damn lame excuse ...

 

[erowe1]

Oh dear Lord .. Did I amend the original intent of my post in YOUR opinion? LOL ... No, I just added more information to it, i.e. clarified it via a personal amendment. <chuckle>

I'm perfectly willing to accept that I misunderstood your position.

If all you've meant to say all this time has been that the process by which an amendment is passed cannot violate the Constitution, then I have never disputed that (nor, as far as I can tell, has anyone else).

Earlier I understood you to be saying that it was always unconstitutional to pass any amendment that changed the Constitution away from something the framers originally intended for it. Had that actually been your position, it would be ludicrous. I'm glad that it was not, and don't have a problem with the fact that you edited an earlier post to make your actual position more clear.

So then, just to be clear, you do agree that it is not unconstitutional to pass an amendment that changes the Constitution away from some provision that the framers originally intended for it. Correct?

 

[tpreitzel]

If all you've meant to say all this time has been that the process by which an amendment is passed cannot violate the Constitution, then I have never disputed that (nor, as far as I can tell, has anyone else).

Earlier I understood you to be saying that it was always unconstitutional to pass any amendment that changed the Constitution away from something the framers originally intended for it. Had that actually been your position, it would be ludicrous. I'm glad that it was not, and don't have a problem with the fact that you edited an earlier post to make your actual position more clear.

Let's get this confusion on your part straight once and for all. You're misreading my remarks. Maybe, I shouldn't have used the word, process, in post #55. I actually agree with your latter assessment, i.e. an amendment to the US Constitution can NOT violate the original intent that the founders intended for it at the time of it's adoption. PERIOD. No, my position isn't ludicrous at all. Amendments have to be consistent with the original intent of the founders or those amendments are unconstitutional. Your position that the US Constitution can be changed willy nilly via the constitutional amendment process into anything is ludicrous and very dangerous. Actually, your position is simply a democratic view, i.e. mob rule, and a view strongly opposed by our founders.

 

[erowe1]

Let's get this confusion on your part straight once and for all. You're misreading my remarks. Maybe, I shouldn't have used the word process in post #55. I actually agree with your latter assessment, i.e. an amendment to the US Constitution can NOT violate the original intent that the founders intended for it at the time of it's adoption. PERIOD. No, my position isn't ludicrous at all. Amendments have to be consistent with the original intent of the founders or those amendments are unconstitutional. Your position, that the US Constitution can be changed willy nilly via the constitutional amendment process into anything, is ludicrous and very dangerous. Actually, your position is simply a democratic view, i.e. mob rule, and a view strongly opposed by our founders.

So no we're back to where we were before. And the position that you claimed was what you were clearly saying consistently throughout this thread turns out to have been consistently unclear and consistently not what you meant. And what I thought you meant at first was what you actually did mean all along.

My position is not willy nilly democratic mob rule. It's that amendments must be passed via the process given in Article 5, complete with the limitations placed on the process there. If an amendment is passed via that process, then it is neither willy nilly, nor democratic mob rule. Article 5 provides for the original Constitution to be changed from what it originally ordained. Those things that the framers put in the Constitution (and intended to put in it) could potentially be changed to other things or removed (thus changing it from what they originally intended). That's the point of it.

To say otherwise would be both immoral and unconstitutional. The founders had no right to institute a government for their posterity for all time that could never be altered from the plan they first laid out for that government. Nor did they pretend to have such a right, as evidenced by the fact that they included Article 5 in the Constitution, whereby any point at which that Constitution later be found to be wrong could be corrected.

Of course, on any given point, we the people may or may not be wise to alter the Constitution away from what it was originally intended to contain. But the right to do that, should we choose to, is certainly ours, every bit as much as it was theirs to ratify that original Constitution in the first place (granted, the assumption that they did have such a right is a gratuitous one, but one that I'll accept for the sake of argument here).

 

[tpreitzel]

My position is not willy nilly democratic mob rule. It's that amendments must be passed via the process given in Article 5, complete with the limitations placed on the process there. If an amendment is passed via that process, then it is neither willy nilly, nor democratic mob rule. This Article provides for the original Constitution to be changed from what it originally ordained. That's the point of it.

To say otherwise would be both immoral and unconstitutional. The founders had no right to institute a government for their posterity for all time that could never be altered from the plan they first laid out for that government. Nor did they pretend to have such a right, as evidenced by the fact that they included Article 5 in the Constitution, whereby any point at which that Constitution later be found to be wrong could be corrected.

Wrong. It is willy nilly mob rule if the constitutional amending process in Article 5 is misused by contradicting original intent as can clearly be seen by the chaos today.

 

[tpreitzel]

Anything else?

 

[FrankRep]

Anything else?

Yes. Repeal the 17th Amendment!

 

[tpreitzel]

Yes. Repeal the 17th Amendment!

Is my position clear, Frank?

 

[erowe1]

Wrong. It is willy nilly mob rule if the amending process in Article 5 is misused by contradicting original intent as can clearly be seen by the chaos today.

So was the ratification of the original Constitution itself willy nilly mob rule?

If it was, then why was willy nilly mob rule ok for them but not us?

If it was not, then why did there exist for them some legitimate non-willy-nilly, non-mob-rule process by which they had the authority to institute that Constitution, but all future generations are to be stuck with whatever they created forever, and any change they might ever wish to make to it cannot be legitimately made, but is willy nilly mob rule?

 

[tpreitzel]

So was the ratification of the original Constitution itself willy nilly mob rule?

If it was, then why was willy nilly mob rule ok for them but not us?

If it was not, then why did there exist for them some legitimate non-willy-nilly, non-mob-rule process by which they had the authority to institute that Constitution, but all future generations are to be stuck with whatever they created forever, and any change they might ever wish to make to it cannot be legitimately made, but is willy nilly mob rule?

The strong arm of the law (adoption of the US Constitution) grabbed willy nilliness by the throat or at least that was the intention ... Do you want another Constitutional Convention?

 

[Major_C_Natural]

Amendments have to be consistent with the original intent of the founders or those amendments are unconstitutional. Your position that the US Constitution can be changed willy nilly via the constitutional amendment process into anything is ludicrous and very dangerous. Actually, your position is simply a democratic view, i.e. mob rule, and a view strongly opposed by our founders.

By your logic, most of the amendments beyond the Bill of Rights are unconstitutional. After all, the 12th amendment, for example, would be "unconstitutional" because altered the original way Vice Presidents. In fact, why have Article 5 at all? The Founding Fathers created a perfect document, right?

The 17th amendment is similar to the 12th amendment as they both alter the process of something. It is constitutional and part of the U.S. Constitution. But a bad amendment that should be repealed? I totally agree.