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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 20



So what?  As things now stand, the state has no (zip, nada, zilch) direct representation at the national level.  What little representation it does have is garnered indirectly through the Senators and Representatives who are both elected directly by the people.  “But,” you object, “how can electing all of our national elected officials through a popular vote be bad?  Isn’t that what democracy is all about?”  Exactly so, and that’s the problem.  When Senators were elected by the state legislatures, they were inclined to feel a dependence on the state for their office and consequently were responsive to the needs of the state.  Now, being elected directly by the people, it is to the people that they feel a dependence, and they are wont to slight the state in deference to the people.


This relationship, or maybe a better way to phrase it would be “this lack of parity in the relationship,” produces some very undesirable consequences.  It unquestionably abridges the principle of federalism.  (Refer above to Hamilton.)  It severely undermines both the authority and sovereignty of the state.  As originally envisioned, the state was supposed to be a part of the balance of power.  We make much of the separation of powers among the three branches of the national government.  But what are the consequences of those three branches working in concert?  What is the counter-balance to that event?  Originally, the state was envisioned as a sovereign equal, or very nearly so, and was designed to fulfill this role.  Today, without direct representation at the national level, the state is a lightweight and the balance of power is skewed.  This condition contributes mightily to run-away government at the national level.


The relationship between the national government and the citizen is no better in this regard.  The direct election of the Senate produced a dependence on the people, a reliance on the goodwill of the people to retain the high office of Senator.  Consequently, the Senate now fills exactly the same role with regard to the people as the House of Representatives.  This is not the function of the Senate as envisioned by our Founders.  The Senate was designed to be removed from the direct influence of the people.  This is what Madison had to say on the matter:  “ . . . such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.”  (Federalist Papers, No. 63).


Remember, he was speaking of the institution of the Senate as it was originally designed, not the warped understanding of the institution we have today.  With their total dependence on the goodwill of the people for their retention of high office, exceedingly few Senators have the intestinal fortitude to, “Just say No!!!”  It is imperative that this simple expedient begins to occur, and that it occurs immediately.  It is probably unnecessary to tell you, but don’t hold your breath.  Although the largess of “Big Daddy Government” may be somewhat slowed, simply because there is a limit to what government can excise from the economy without destroying it, you can look forward to an acceleration in the use of government mandates and an expansion of the plethora of national laws we already have that deal with the citizen directly, as an individual.  None of which, I believe, is congenial to our continued liberties or even to our benefit.  It is my fervent desire to be wrong in this matter.  It is the Seventeenth Amendment that promotes much of this mischief.  Along with the extremely undesirable consequences it promotes, it is my personal belief that the amendment is constitutionally suspect on at least two grounds.  The first is to be found at Article IV, Section 4, which states, “The United States shall guarantee to every State in this Union a Republican Form of Government . . . ” (Emphasis added).


You may have felt we dwelled above far too long on an insignificant point when we discussed the meaning of the word “State” in the Constitution; but the meaning is crucial.  Looking at the “spirit of the debates” that took place surrounding the adoption of the Constitution, it would seem hard to deny that at least part of our Founders’ meaning of the word “State” was the sense of the State in its political capacity.  (See above excerpts from the Federalist Papers, especially Hamilton.)  If this were the case, and if a republican form of government guarantees the right of representation, then the denial of that representation to the State in its political capacity is an abridgment of Article IV, Section 4.  If all this were true, then the Seventeenth Amendment would be constitutionally invalid.  The second abridgment proffered is to be found in the current Article under discussion, Article V, which states, “ . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”


Drawing once again on history and the “spirit of the debates” that surrounded the adoption of the Constitution, it is almost certain that the meaning of the word “State”in this clause is in the sense of its political capacity.  The Constitution is a contract between the corporate United States and the sovereign, individual, and respective corporate states, which represent the people.  A proposed amendment is a renegotiation of that contract.  Signing that contract ratifies the amendment.  One of the governing factors in the signing of a valid contract is that both parties have an adequate understanding of the instrument to be signed.  For instance, as a fool or a child does not have the requisite understanding, a contract signed by either would be invalid.  I am not suggesting that the officials of the states that ratified the Seventeenth Amendment were fools or children; but I find it hard to believe they had the requisite understanding of the effect of the amendment and ratified it anyway.  Those who did understand apparently did not bother to tell them.  This would be fraudulent.  Although not unconstitutional, either of these circumstances, if true, would prevent the states from granting knowledgeable consent, and should be enough to nullify the contract change.


Even under the assumption the states granted meaningful consent, if you grant the position that the word “state” is used in the sense of political capacity, there is still a knotty problem to be dealt with, that being “equal Suffrage.”  One would have to grant the position that currently the states, in their political capacities, are indeed equal when it comes to the point of suffrage.  They each have an equal number of votes.  But the number of their votes is zero.  While this is truly equal, if you will keep the “spirit of the debates” and the Constitution itself in mind, it is beyond question, contrary to the intent of our Founders.  The mere fact that it is mentioned in Article V would indicate they intended the states, in their political capacities, to have at least some suffrage; and it is that suffrage which is intended to be equal.  It is the total lack of suffrage on the part of the states, in their political capacities, which abridges the spirit if not the letter of Article V.  Though this is the opinion of only one man, I believe the promotion of the Seventeenth Amendment was truly a perversion of the Constitution and perfidy of the highest order.  Even if these constitutional questions prove to have no merit, we would do well to reexamine this amendment solely upon the grounds of its mischief.  Though no one has asked for my advice concerning the Seventeenth Amendment, if I were to offer some, it would be this:  “Repeal this evil bastard child of the Constitution as quickly as possible.”




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