Repeal Seventeenth Amendment

By John MacMullin

With respect to states' rights, it should be readily apparent to all that state governments cannot exert any meaningful influence or control over the federal government, judiciary, or any other federal institution.

Let us state the problem precisely. At the present time, there are no checks and balances available to the states over federal power or over Congress itself in any area. However, in the history of our country, it was not always this way. In the original design by the Framers of the U.S. Constitution, there was an effective check on Congress through the state legislatures' power to appoint (and remove) U.S. Senators. As such, the core of the problem with state's rights issues lies in the passage of the 17th Amendment which abrogated the state legislatures' right to appoint U.S. Senators in favor of popular election of those officials. This amendment created a fundamental structural problem which, irrespective of the political party in office, or the laws in effect at any one time, will result in excessive federal control in every area. It also results in a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and the evaporation of state influence over national policy.

The reason for the passage of the 17th Amendment should be stated. The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power. The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator. When deadlocked, a state would go without representation in the Senate. For instance, in the very first Congress, the State of New York went without representation in the Senate for three months. Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks. The problem of deadlocked legislatures continued unabated from 1787 until 1913. The seventeenth amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power. Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact.

For more information, I respectfully refer you to a law review article that I wrote, Amplifying the Tenth Amendment, 31 ARIZ. L. REV. 915 (1989). This article was cited as "worth reading" by the National Law Journal, in its March 5, 1990, publication. Additionally, I direct you to two books written by George Haynes titled "The Senate of the United States" published in 1938, and "The Election of Senators" published in 1906. I believe that you will find that these references are well worth reading.

In my opinion, the 17th Amendment should be repealed. This would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the present status of the state legislatures from that of lobbyists, to that of a partner in the federal political process. The state legislatures would then have the ability to decentralize power when appropriate. It would give state legislatures direct influence over the selection of federal judges and the jurisdiction of the federal judiciary and much greater ability to modify federal court orders. This structure would allow the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change. The existing relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little or no hope of return.

With that, the state governments should be focusing an effort to repeal the 17th Amendment, not on passing legislation or engaging in irrelevant activities, that are more than likely useless over the long term and probably also over the short.

Illustrations

The constitutional amendment proposed would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the status of the state governments from that of lobbyists, to that of a partner in the federal political process.  Figure A above portrays the existing relationship between the states and the federal government.  This relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little hope of return. 

With the passage of the amendment, the state legislatures would have the ability to decentralize power when appropriate.  After passage, it would primarily be the state legislatures interacting with their appointed senators, and not with the other branches of the federal government, that would establish the "line" between the federal and state governments.  Figure B shows the effect of the passage of the proposed amendment on the relationship between the governments.  This structure allows the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change.  This structure also exemplifies the original concept of the Framers of the Constitution.

Illustrations by John MacMullin
Text of Proposed Amendment

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john.macmullin@cox.net

John MacMullin has a private law practice in Phoenix, Arizona. and a Juris Doctorate degree from the University of Arizona College of Law.  His article, Amplifying the Tenth Amendment, 31 Ariz. L. Rev. 915 (1989) was cited as "worth reading" by the National Law Journal,

Additional discussion by John MacMullin

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John MacMullin contributed this article to the States' Liberty Party

Created September 22, 2002     All rights reserved to the author