Monday, February 08, 2010

Is the 17th Amendment unconstitutional?

In Skousen's The 5,000-Year Leap, he makes an interesting point on the importance of the balance between Federal Government and States.
The federal government was supreme in all matters relating to its responsibility, but it was specifically restricted from invading the independence and sovereign authority reserved to the States.  The Founders felt that unless this principle of dual sovereignty was carefully perpetuated, the healthy independence of each would deteriorate and eventually one or the other would become totally dominant.
Alexander Hamilton further explained,
This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance.  It forms a double security to the people.  If one encroaches on their rights, they will find a powerful protection in the other.  Indeed, they will both be prevented from overpassing their constitutional limits, by certain rivalship which will ever subsist between them. (Essays on Freedom and Power).
Skousen then asks an important question,
But would the states be able to protect themselves from the might of the federal government if the Congress began legislating against states' rights?  Originally, the states could protect themselves because U.S. Senators were appointed by the state legislatures, and the Senate could veto any legislation by the House of Representatives which they considered a threat to the rights of the individual states.
Well, the 17th amendment pretty much abolished this right of the states.
That amendment provided that Senators would thenceforth be elected by popular ballot rather than appointed by the state legislatures.  This meant the states as sovereign commonwealths had lost their representation on the federal level, and their Senators would be subject to the same popular pressures during an election campaign as those which confront the members of the House of Representatives. (Ibid., Skousen)
I haven't done any research on the circumstances surrounding the ratification of the 17th amendment, but I'd be interested to find out the justifications for taking away this right of the States.  I've often wondered what is the real difference between a Senator and a Representative.  One has a longer term than the other, there's only two of one and the other is proportionate to the states population relative to other states.  It makes a lot more sense the way it was originally defined in the Constitution.

1 comment:

markymark said...

Very interesting Lee, never thought specifically about this but I have been concerned with State's rights. The States lost a lot of sovereignty after the Civil War because of the Supreme Court's decision to make it officially illegal for any state to succeed from the Union. Which is interesting since we are really a voluntary "Union" of various states, not conquered territories. The only authority I think states really have that can trump the Federal government is their ability to do a constitutional convention. Another right that helps balance things would be the right to levy their own taxes.