THE LIBERTARIAN ENTERPRISE
Number 200, November 25, 2002

BICENTENNIAL!

Repeal the 17th Amendment
by John MacMullin
john.macmullin@cox.net

Special to TLE

After the September 11, 2001, terrorist attacks, the federal government announced that it would preempt all state jurisdiction over airport security. The federal government preempted state powers without regard to balancing federal and state responsibilities so that these responsibilities, and related costs, could be distributed across federal, state, and local governments. To carry out this preemption, the federal government recently reported that it will employ more than 47,000 federal recruits in the fight against terrorism as newly trained security screeners. They are to begin working at 424 airports nationwide.

These developments, and numerous others in the past, remind us that 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) United States Senators.

As such, the core of the problem with federal preemption lies in the passage of the 17th Amendment which abrogated the state legislatures' right to appoint United States 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, over time, in expanding federal control in every area. In my opinion, in addition to preemption issues, it caused a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and federal control over a number of state institutions.

The amendment also caused a fundamental breakdown in campaign finance issues with respect to United States Senators. As to United States Senators, campaign finance reform, which has been a hot topic in Congress, can be best achieved by repealing the 17th Amendment to the United States Constitution. It should be readily apparent that United States Senators, once appointed by the state legislature, would have no need for campaign financing whatsoever.

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 17th 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.

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 the power of the federal judiciary. 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. The federalism issue between the states and federal government is whether the states or the federal government should be exercising a particular power. The impact of the 17th Amendment upon that issue, and the states' present ability to exercise the original power granted to them by the Framers of our Constitution is clear. A proposed amendment to the U.S. Constitution, designed to repeal the 17th Amendment and fix the procedural problems, follows:

AN AMENDMENT TO REPEAL THE SEVENTEENTH AMENDMENT AND RELINK THE STATES TO THE FEDERAL POLITICAL PROCESS.

SECTION ONE. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.

SECTION TWO. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.

SECTION THREE. Among the duties of each Senator is the primary duty to represent the government of their State, and in particular, their State's Legislature, in the Senate. For the purpose of maintaining communications with its Senators, each State Legislature shall establish a liaison committee and shall specify the duties, procedures, and method of appointment of that committee. This committee shall work with its United States Senators in evaluating the impact of federal legislation on their State. All legislation proposed by Congress, and all treaties proposed, shall be submitted to each State's liaison committee.

SECTION FOUR. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.

SECTION FIVE. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this amendment, related to the selection and removal of Senators. A State Legislature may implement a selection procedure whereby the State Legislature selects a Senator by a plurality vote rather than a majority. If a State Legislature fails to enact a selection procedure, then the State Legislature shall sit as a single body and shall select a Senator by a plurality vote. Irrespective of the procedures followed by the State Legislature, if the State Legislature does not choose a Senator within thirty days after a vacancy, the Governor of the State shall select the Senator.

SECTION SIX. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution. All state legislative proceedings, including, but not limited to, those concerning the liaison committee, procedural issues, and the selection and removal of a Senator are open to the public. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislatures.



John MacMullin (john.macmullin@cox.net) practices law in Phoenix, Arizona and has written extensively in the law literature on the 17th Amendment. See MacMullin J., "Amplifying the Tenth Amendment," 31 Ariz.L.R. 915 (1989).


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