Now I am sure at least some of you are scratching your heads at that title. The 17th Amendment isn't one that most people know off the top of their heads. It isn't as prominent as the First, Second, Fifth, or any part of the Bill of Rights, yet it is very important when states rights are concerned. If you have Googled it before reading this far, you know that it mandated the direct election of Senators, which used to be appointed by the state legislatures.

First, let me give you some Constitutional background on the rights of states. The big one is the Tenth Amendment. It says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This severely limits the Federal Government as to what powers it actually has, and though the “necessary and proper” clause of Article One was used by statists from Henry Clay to Lincoln to enact things like the American System of “public works projects.”

Then a war was fought over state’s rights, the War for Southern Secession. This severely the power the states had, and the balance of federalism was tipped in the federal government’s favor with the ratification of the Fourteenth Amendment. Ratified in 1869, the Fourteenth Amendment guaranteed “equal rights to all persons under the law.” This allowed the judiciary carte blanche (pardon the cliché) in deciding cases, being used as a primary rationale for Plessy v. Ferguson (segregation), Brown v. Board of Education of Topeka, Kansas (desegregation), and Roe v. Wade.

Although the Supreme Court did not use this Amendment to approve the New Deal under pressure from FDR (they used the Commerce Clause), the Fourteenth Amendment is a major cause in the deterioration of state’s rights under the rule of activist judges.

The final blow for Constitutional state’s rights came in 1913 during the “Progressive Movement.” The change to a directly elected Senate may not sound like much, and those of you who are little “d’-democrats would probably agree. I am not against this in principle, but the ramifications in terms of federalism are really quite astounding.

The Senate was designed as the state government’s representatives to the federal government, analogous to the House of Lords in Parliament. Once the representatives of the state governments are removed, and the Senate put in the hands of the people, the Senate becomes a smaller version of the House of Representatives, which is how we get radicals like Barbara Boxer and Ted Kennedy as well as ‘national senators,’ ones who serve not their state but seemingly the country at-large, like John McCain and Joe Lieberman.

This is why I would like to call for the repealing of the Seventeenth Amendment. Constitution.org lists the Amendment as being “possibly unconstitutional.” Now I am not sure if that is technically possible, but they reference Article V, Clause 3, which states:

"no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Ten states (including Delaware) have still not ratified the Amendment, and I think there is an argument to be made that at least those ten states have not consented to their deprival of their “equal suffrage.” Repealing this Amendment would be a step in returning to true federalism and a reduction in the size and power of the federal government. Fmr. Senator Zell Miller introduced an act to repeal the Seventeenth Amendment in 2004.

Full text of the Bill of Rights and Amendments 11-27.

Posted by Ryan S. on Thursday, September 07, 2006 at 1:38 AM | Permalink |