Why It’s Crucial to Repeal the 17th Amendment

by Diane Rufino, August 4, 2022

When I talk to folks about the Constitution, I usually comment that “the Constitution holds all the answers to the problems that are plaguing us as a country,” and as a republic. This article will explain why the original Constitution, which was written in Philadelphia in 1787 and ratified by the States in 1788, and which essentially remained in effect without change until the turn of the 21st century, with its provision on how US senators were to be selected, is one of those solutions.

The original Constitution provides a unique process for selecting US senators; that process was provided in Article I, Section 3, which read: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” In short, our Founding Fathers incorporated the plan proposed by Roger Sherman, a delegate from Connecticut who advocated for the small states, articulated a national legislature with two parts. He envisioned a bicameral legislative branch, which gave equal representation to each state in the Senate, and representation based on population in the House of Representatives. The US House is the “people’s body” and the US Senate would be the “States’ body.” The House would represent the constituency and legislate on their behalf while the senators would specifically show allegiance first and foremost to their States.

In fact, no issue was more important to our Founders than the balance of power between the States and the new federal government. They knew first-hand what it was like for a government thousands of miles away to issue a decree that forced private citizens to comply and forfeit treasure in the form of unjust taxes. From his “throne” in the White House, a US president can declare anything he deems important as a “national emergency” thereby allowing federal agencies to prohibit what individuals can and cannot do, require or compel them to do what they ordinarily would never agree to do, and suspend their civil and individual liberties. From that same throne, he can issue an executive order and regulate the behavior of fishermen on both coasts of the United States, and in doing so, can steal their livelihoods by denying them the right to fish. From his “throne” in the president’s cabinet, the Secretary of the Department of Interior can declare any animal, bug, bacteria, virus, or species of plant to be an endangered species, thereby assuming authority to regulate the behavior of private citizens on whose land one of those endangered species may happen to inhabit or possibly inhabit, as well as to regulate the land itself.

In other words, our Founding Fathers put a critical element of federalism directly in our bicameral Congress. If the House attempted to pass a law that was deemed unconstitutional, for example (and quite likely) or if the President abused his Treaty-making or judicial appointment powers, the States, through their senators, could immediately block such laws and presidential abuse. To use the language of Thomas Jefferson, the Senate, acting on behalf of the States, could immediately “nullify” (to render “null and void”) such unconstitutional laws and prevent them from being enforced on sovereign States and on a free people. This government feature was potentially the last and one of the strongest of checks and balances in our constitutional system of checks and balances. I will address this issue in more detail below. Ultimately, I hope to emphasize that we NEED TO REPEAL THE 17th AMENDMENT. Our government, now more than ever, needs to revert to the original method of selecting US senators.

Did our Founding Fathers intend for the US Senate to act as an integral element of federalism in our government structure?  I believe so.

Having just fought a revolutionary war against Great Britain and defeated the powerful nation to be recognized as independent sovereign states (and eventually as an independent sovereign nation), our Founding Fathers were distrustful of tyrannies, fearful of governments becoming arbitrary and capricious, obsessed with designing and creating a limited “common government” to regulate common functions of all States and just as importantly, to secure and safeguard the rights and liberties of the American people.

The Constitution Center explains on its website that after returning from France in 1789, Thomas Jefferson supposedly asked George Washington, during breakfast one morning, why Washington had agreed to the creation of the US Senate in the Constitution. Noting the saucer on which Jefferson’s hot morning beverage rested, Washington explained, “we pour our legislation into the senatorial saucer to cool it.” Is this story really true? Apparently ,no one can confirm it. Nonetheless, it nicely captures what the Framers hoped to achieve in establishing the US Senate. First, and most importantly, as reflected in Article I, Section 3, the Framers designed the Senate, like they had other fixtures within the Constitution, such as the Electoral College and the judiciary, to be independent of the voting majority. The Senate was originally designed, created, and empowered to function in ways that frustrated direct democracy and designed to keep the House of Representatives in check. Second, it was designed to temper government passions and slow down the legislative process, giving government more time and wisdom (hopefully) to act in the most judicious, responsible, and rational manner – for the good of the country.

In fact, the Constitution originally treated Senators quite differently. In the original design, Senators were chosen by their respective State legislatures, and as a result, they were subject to instruction and recall if they did not do what their legislatures instructed them to do. (Note that while the Constitution provided the minimum age for membership in the House of Representatives to be 25 and for every seat in the House to be up for re-election every two years, it provided that senatorial candidates have a minimum age of 30 in order to serve in the Senate and for each Senator’s term to last for six years. The relatively higher minimal age requirements for Senators and longer lengths of Senate terms were designed to increase the likelihood that Senators would be better educated and more disposed than their House counterparts to take the long view on important issues. The distinction of powers for the House and the Senate – namely, the Senate’s responsibility to ratify treaties and judicial appointments by the president and its sole power to remove a president after being “impeached” (convicted) by the House – would seem to explain why there are different criteria expected of each chamber representative. Such specific responsibilities, as James Madison explained it in Federalist No. 58, serve as “a shield to some particular interests, and another obstacle generally to hasty and partial measures.”

All that changed in 1912 when Congress passed the proposed Seventeenth Amendment on May 13 and then when the States ratified it on April 8, 1913. The Seventeenth Amendment reads: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”  [The amendment also altered the “filling of vacancies” clause]. In short, the Seventeenth Amendment calls for a dramatic change in how US senators are selected. From 1913 to today, senators are chosen and elected by the people. They have become political creatures rather than representatives of the States and their sovereign interests and concerns.

Indeed, the Seventeenth Amendment totally transformed the Senate and its essential and critical purpose. And this has been very unfortunate. By making Senators subject to popular election in their respective States, it effectively democratized the Senate and, in doing so, abandoned one of the critical differences between the House and the Senate, namely, the primary allegiance of senators to their individual States. The change introduced by the Seventeenth Amendment has made it easier for Senators to pay less attention to local or state leaders’ concerns, to ignore fundamental state issues and concerns, and to ignore the critical importance of federalism and instead more prone to follow the popular will. It essentially created a second body of democratically-elected representatives, each one beholden to the people. It has dealt a dangerous blow to State sovereignty. To be honest, I don’t know what possessed the States to ratify the amendment in 1913.

The growing power in the federal government for the past one hundred years has been possible because of the loss of this critical element of federalism. Because both the House members and senators are elected directly by the people, there is no check or balance on the power of the federal government. Were the Senate body still the instrument of the collective power of the state governments, there could be some pushback when the federal agencies intrude into jurisdictions that should rightfully belong to the States.

I do know, however, that many constitutional scholars believe that it was after the ratification of this transformative Amendment that the Senate joined the House in expanding the size and scope of the federal government to unprecedented degrees, all at the expense of State sovereignty. With this Amendment firmly in place, these scholars argue further that there is no turning back from this foundational transformation.

Before going any further, I’d like to spend just a few paragraphs on the US Constitution.

What is a Constitution –

What is a constitution anyway?  A constitution is the act of a People governing themselves. It is a social compact among members of a society agreeing and acknowledging a particular form of government. The agreement creates and establishes a government and delegates powers to it. The powers delegated are transferred from the original source of sovereign power – the individual  …. We the People.

The Individual, inherently vested by God and by Nature to govern himself, can technically use whatever type of force he deems necessary to protect himself, his family, or his property, including murder. When individuals form together in a society, an agreement (ie, compact/contract) is necessary to establish a uniform set of laws to govern conduct and behavior for the benefit of everyone and to establish a government to execute and enforce those laws. That is the purpose of a constitution. For example, we wouldn’t want Mr. Smith to shoot Mr. Jones for simply picking an apple off his apple tree.

Our US Constitution is exceptional, not only in its words and provisions, but perhaps in the fact that it embodies a unique idea. Nothing like it had ever written and established before. The power of the idea was in the recognition that individual rights are granted directly by the Creator and not by the state (government). And following that premise, it is the people, and only them, that are able to delegate authority to their government. The concept is so simple and yet so very fundamental, far-reaching, and yes, revolutionary.

America’s founders embraced a previously unheard-of political philosophy which held that people are endowed by their Creator with certain unalienable rights. This was the statement of guiding principle for the new nation, and, as such, had to be translated into a concrete charter for government. The Constitution of The United States of America became that charter. Other forms of government, as we all know, past and present, rely on the state as the grantor of human rights. If government can “allow” its people to exercise certain rights and privileges, they can also take them away. But our American Founding Fathers understood that such a system could never recognize and secure individual liberty, which was to be the founding ideal of America, and so they adopted John Locke’s belief that sovereignty vests first and foremost with the individual. Our Founders also believed that a government made up of imperfect people exercising power over other people should possess limited powers. Through the Constitution they created for us and our country, they wished to secure the blessings of liberty for Americans and for their posterity by limiting the powers of government. Through it, they delegated to government only those rights they wanted it to have, holding to themselves all powers not delegated by the Constitution. (See the limitations in the words and provisions of the Constitution, and especially the Ninth and Tenth Amendments). They even included a means for controlling those powers they had granted to government, and that is our governmental system of Checks and Balances. Many problems we face today result from a departure from this basic con­cept.

Thomas Jefferson and many other members of our founding generation were deeply influenced by the 18th-century European intellectual movement known as the Enlightenment, and most noticeably by English philosopher John Locke. Enlightenment philosophy stressed that liberty and equality were natural human rights. The novelty of the Declaration of Independence – that is, its most famous paragraph, the second one (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…”) comes almost directly from the writings of John Locke. Locke discussed these themes in his Second Treatise of Government in 1689 at the time of England’s Glorious Revolution, which overthrew the rule of the arbitrary and tyrannical King James II.

The American colonies, then States, and finally the United States, were founded on a revolutionary and magnificent idea. Indeed, the world has changed and become a more civil place since the publication of the Declaration of Independence, the birth of the United States, and the creation of the US Constitution.

The US Constitution is brilliant in that the government so created not only governs the explicit affairs of the States (interstate commerce, money, border security, money, mail, etc) and governs We the People, but it also itself. It is the oldest, and most well-thought out, written constitution in the world.

Checks & Balances

The US Constitution created our federal government. The federal (a name used to incorporate the “federalist” nature of our government system) or “common” government was designed with 3 independent branches, each with its particular responsibilities. To keep each branch confined to its particular responsibilities, our Founding Fathers devised an ingenious system of checks and balances. Actually, the concept was addressed earlier by the French philosopher, Baron de Montesquieu. In his famous work “The Spirit of the Laws,” Montesquieu argued that the best way to prevent the concentration of power arbitrarily in a single branch was through a separation of powers, in which different bodies of government exercised legislative, executive, and judicial power, with all these bodies subject to the rule of law. In addition, each branch enjoys a power that “checks” a power of another branch.

The system of checks and balances is an important part of the Constitution. With checks and balances, each of the three branches of government are given specific abilities to limit the powers of the others. And this way, theoretically, no one branch could become too powerful. The caveat, however, is that should branches collude and work together, then checks and balances will not work to prevent a concentration of government power.

The most obvious of this system of checks and balances is that the president can veto any bill passed by Congress, but a two-thirds vote in Congress can override the veto. Other examples include:

  • The House of Representatives has sole power of impeachment, but the Senate has all power to try any impeachment.
  • Any bills that intend to raise revenue must originate in the House of Representatives, but the Senate also has to approve the bill.
  • Congress has the power to set and collect any taxes or duties.
  • The House of Representatives and the Senate both have to pass the same bill before it can become a law.
  • The president is commander-in-chief of the U.S. Army and Navy.
  • The president has the power to grant pardons and reprieves for crimes against the U.S. except in an impeachment.
  • The president can make treaties, but only with a two-thirds agreement from the Senate.
  • The president can appoint Supreme Court judges, but the Senate must approve these choices.
  • Supreme Court judges have the power to declare presidential and Congressional actions as unconstitutional.
  • The vice president is also automatically the president of the Senate.
  • Congress can propose amendments to the Constitution, which, of course, must be ratified by three-fourths of the individual States.
  • Congress can pass laws, or propose amendments to the Constitution (as mentioned above) that essentially can override a Supreme Court decision. (see the Reconstruction era amendments).
  • The States, upon application by two-thirds majority, can apply to the Congress to call a Convention whereby they have the ultimate sovereign power (supreme even to the federal government) to amend, change or even discard the Constitution.

In 1787, the States set out “to amend the Articles of Confederation” in order to overcome its defects. But the agenda soon changed when the delegates met in Philadelphia that summer. Their goal was to create a new constitution that would give a central or common government power to act nationally but not take away the rights of any State or its people. They specifically wanted to avoid a government that copied the king of England and his parliament.

As mentioned earlier, having US senators selected by state legislatures and therefore acting for the benefit of state interests, state sovereignty, states’ rights, was a powerful check and balance, integrated physically and meaningfully in the very design of the legislative branch. Sadly, that immediate check is no longer able to act for our benefit, which is to check the power of Congress and the president so that our essential rights and liberties remain safe and secure

Federalism –

Federalism is our strongest and most effective form of “Check and Balance.” Federalism is a system of government in which the same territory is controlled by two levels of government.  It is often referred to as our system of “dual sovereignty.” Our Founding Fathers designed a government which is predicated on the division of political power between the national or federal government and the individual States. Technically, it was the sovereign States that surrendered a limited number of their sovereign powers to the federal government to exercise for their mutual benefit, while retaining most of them. The Constitution clearly reflects this by its express enumeration of powers delegated to the new government it created as well as by the addition of the Tenth Amendment (a remnant of the Articles of Confederation), which restates the principal of federalism. “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.” James Madison went on to explain this division in his essay The Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

Our system of dual sovereignty implies that each sovereign possesses a specific sphere of governing power. And that separation of power implies that each sovereign will jealously guard their powers. Because of this tension, they will take note of when the other side infringes on and usurps their sovereign powers. The system created is necessarily adversarial, just like the legal system whereby the two opposing attorneys vigorously defend their clients and go against each other in a court of law.

Why is this unique government design feature so critical to our idea of government?

Federalism is one of the most important and innovative concepts in the design of our American government system and in the drafting of the Constitution, although the word never appears there. In America, the states existed first and they struggled to create a national government that would not compromise their sovereignty.  The US Constitution is “hardwired” with the tensions of that struggle, and in fact, the States demanded that the Tenth Amendment be added to remind the federal government and to remind the People that its powers are limited to the plain words and provisions in the Constitution and the remainder are reserved to the States. (The language of the Tenth Amendment is extremely similar to Article II of the Articles of Confederation). The Tenth Amendment reads: “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.”  It emphasizes that the inclusion of a Bill of Rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone’s rights, but whether it exceeds the national government’s enumerated powers.

Note that the Ninth and Tenth Amendments also evoke themes of popular sovereignty, which was articulated in the Declaration of Independence, and which highlights the foundational role of the people in the constitutional republic. “A government of the people, by the people, and for the people.”

Perhaps most importantly, however, federalism is the last and most important of our checks and balances. When all other means of checks and balances fail to curb the ambition of the federal government, the States can always use their authority as an equal sovereign (some might say a superior sovereign) to resist the government in DC and refuse to acknowledge and enforce an unconstitutional law, federal policy, executive order, or emergency order, as well as a federal court opinion which is deemed an exercise in judicial activism and/or an erroneous interpretation of the Constitution. [See Nullification]. And that makes it the most critical in helping to keep the federal government in check and preventing it from usurping powers not specifically delegated to it and becoming too large and tyrannical.

To repeat, having US senators selected by state legislatures and therefore acting for the benefit of state interests, state sovereignty, states’ rights, was a powerful check and balance, integrated physically and meaningfully in the very design of the legislative branch. Again, that immediate check is no longer able to act for our benefit, which is, of course, to check the power of Congress and the president so that our essential rights and liberties remain safe and secure.

Nullification –

Nullification is the legal theory that holds that the States can refuse to comply with federal laws that they deem to be unconstitutional. Thomas Jefferson articulated the doctrine/theory in his Kentucky Resolutions of 1799, in which he also added the term to our lexicon:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, IS THE RIGHTFUL REMEDY: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

Jefferson’s Kentucky Resolutions of 1799 followed up on his earlier draft – The Kentucky Resolutions of 1798 in which he essentially stated the same thing, just not using the exact term “nullification.”  James Madison drafted a similar set of resolutions in 1798 – The Virginia Resolutions of 1798. In that document, he introduced another word to our lexicon – “Interposition,” which is the act of intervening or interposing between government and the People. (Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional). Here is the language Madison used:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and ARE DUTY BOUND, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

The resolutions, which were written specifically to motivate the individual States to declare John Adams’ “Sedition Act” (of 1796) unconstitutional, assert and re-state two key founding propositions: First, the Union is a compact among individual states that delegates specific powers to the federal government and reserves the rest for the states to exercise themselves. Second, it is both a right and a duty of individual states to interpose themselves between their citizens and the federal government. On these bases, Virginia’s resolution, penned by Madison, declared that the Sedition Act was unconstitutional and that measures should be taken by all states to retain their reserved powers under the Tenth Amendment. Jefferson’s Kentucky Resolution took Madison’s theory of interposition a step further and concluded that because the Sedition Act was unconstitutional, it was null and void and therefore unenforceable. That is, because it exceeded the powers delegated to the US Congress and the US President, they were null and void from the inception and from the moment of its passing. [Note, the Resolutions actually accused the Alien and the Sedition Acts (of 1796) of being unconstitutional, but the Sedition Act was the most offensive].

Checks and balances and especially state nullification & interposition are peaceful remedies to keep the government from becoming tyrannical. Without these “peaceful” remedies, we face violent remedies such as revolution, secession, and war. In making their case for nullification and interposition at the time of the Alien & Sedition Acts in 1798, Jefferson and Madison made this important point.

Nullification, as explained above, is an American founding legal theory, just as secession is. They transcend the Constitution in that no government can regulate or abolish such doctrines and theories. And since the Constitution delegates powers to the federal government, and nullification and secession are intentionally withheld, they are not mentioned in that founding document. Just as we as individuals have “inalienable rights” that no government can violate or take away from us, the States (as individual and independent sovereigns) have the inalienable powers of nullification and secession. If anyone wishes to find even a hint of these powers in our Founding documents and in our Constitution, I would argue that they are implied in the second paragraph of the Declaration of Independence, our federal government structure (“federalism”), and in the Tenth Amendment. Throughout US constitutional history, legitimate scholars have held that the States have the right to declare null and void any federal law that they deem to be unconstitutional under the US Constitution. Of course, nullification is considered an “extreme application” of States’ rights. Of course it would be labeled as such because IT IS !!  As I mentioned earlier, nullification is the last, most important, and most effective of checks and balances on the federal government. Because of its power to limit the ambition of the federal government, the federal government refuses to recognize it (characterizing it as “not legitimate”) and the federal courts have never upheld it.

About 20 years ago, while I was helping to run the NC Tenth Amendment Center, I predicted that the day would come when Americans would finally become acquainted with the doctrine of Nullification, and I believe we are seeing that happen. Today, States continue to enact laws and policies essentially nullifying and resisting federal laws in areas such as health care regulation, gun control, and abortion within their borders.

Once again, having US senators selected by state legislatures and therefore acting for the benefit of state interests, state sovereignty, states’ rights, was a powerful check and balance, integrated physically and meaningfully in the very design of the legislative branch. That immediate check is no longer able to act for our benefit, which is, of course, to check the power of Congress and the president so that our essential rights and liberties remain safe and secure.

Some Examples –

Let’s look at some specific cases where an originally-intended US Senate would have rescued Americans from federal over-reach.

In February 1938, the US Congress passed a major piece of New Deal legislation – The Agricultural Adjustment Act of 1938. The program was enacted as an alternative and replacement for the farm subsidy policies, with its goal being the restoration of agricultural prosperity during the Great Depression by curtailing farm production, reducing export surpluses, and raising prices. The bill established limits on wheat production, based on the acreage owned by a farmer, in order to stabilize wheat prices and supplies. Farmers who grew in excess of the limits set by the bill were fined. The Agricultural Adjustment Act was passed to replace a previous farm subsidy bill – the New Deal’s Agricultural Adjustment Act of 1933 – which had been found to be unconstitutional (as exceeding Congress’ taxing power). The act revived the provisions in the previous Agriculture Adjustment Act, with the exception that the financing of the law’s programs would be provided by subsidies from general tax revenues instead of a new tax.

How might things have worked out if the US Senate has been comprised of representatives appointed by their state legislatures to represent state interests?  Being that the United States was in the Great Depression (the worst economic downturn in the history of the industrialized world, lasting from 1929 to 1939), was being led by President Franklin Delano Roosevelt and his New Deal program, and realizing that a war was beginning in Europe and threatening to reshape the political and geographical landscape, the US House would undoubtedly have passed the bill. The bill would then have gone over to the Senate. The States, informing their representatives that the bill potentially would give the federal government too much power, would have emphasized that the bill was unconstitutional. The Senate would have (hopefully) voted against the bill, thereby preventing it from becoming law and preventing the federal government from abusing the Constitution’s Commerce Clause.

If the Senate can ever derail a piece of unconstitutional federal legislation or strike it down, and thereby preventing it from going to the federal courts, that should be its goal. Allowing a federal bill to go to the federal courts, including and especially the Supreme Court, gives the court (liberal court) the chance to find in favor of the government and to implicitly expand its powers. It should be noted that it has been the federal judiciary over the many years that has recognized and affirmed ever larger and expansive powers to the federal government.

The Agricultural Adjustment Act of 1938 was especially noteworthy in that it was at the center of a so-called “landmark” Supreme Court case – Wickard v. Filmore (1942). Some may remember that the Obama administration cited Wickard when it defended its signature bill, the Patient Protection and Affordable Care Act (PPAC). What Obama was insinuating was that the federal government has almost absolute power when it comes to regulating commerce.

In 1940, Ohio farmer Roscoe Filburn became the plaintiff in the lawsuit, challenging the constitutionality of the federal farming bill. For many years, he had owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It had been his practice to raise a small acreage of winter wheat, sown in the fall and harvested in the following July, to sell a portion of the crop, to feed part to the chickens and livestock on the farm, to use some in making flour for he and his family, and to keep the rest for the following season’s seeding.

Farmer Filburn admitted producing wheat in excess of the amount permitted by law but maintained that the excess wheat was produced for his private consumption on his own farm (as explained above) – specifically to feed the animals on his farm. Since it never entered commerce at all, much less interstate commerce, he argued that it was not a proper subject of federal regulation under the Commerce Clause.

The case made it all the way up to the US Supreme Court. By the time the case reached the high court, eight out of the nine justices had been appointed by President Franklin Roosevelt, the architect of the New Deal legislation. In addition, the case was heard during wartime, shortly after the attack on Pearl Harbor galvanized the United States to enter the Second World War. Filburn argued that since the excess wheat that he produced was intended solely for home consumption, his wheat production could not be regulated through the Interstate Commerce Clause. The Supreme Court rejected the argument and reasoned that if Filburn had not produced his own wheat, he would have bought wheat on the open market.

Nevertheless, the Supreme Court ruled against Filburn and for the government. In fact, the Court not only recognized the Commerce Clause as being the source of the government’s power, but greatly enlarged that power.

The opinion of the Court read: “Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’

In other words, the Supreme Court greatly expanded the meaning of the Constitution’s Commerce Clause – from its original meaning, which was “interstate commerce” to “anything that directly or indirectly has an effect on interstate commerce.”  Anything and almost everything can be found to have an indirect effect on interstate commerce. This means that the Supreme Court has recognized a plenary (absolute) power to regulate commerce.

Note that one of the most important of our founding values has been the right of private property and the ability to use one’s property to its fullest potential. One such “potential” is to use the land to grow food for personal consumption. To want to grow wheat to feed one’s farm animals certainly would be covered by such an assumption.

Wickard marked the beginning of the Supreme Court’s total deference to the claims of the U.S. Congress to Commerce Clause powers until the 1990s.

The post-New Deal Supreme Court, through the opinion in Wickard and in subsequent opinions related to New Deal programs gave Congress almost limitless power to regulate private economic activity as it saw fit. That greatly-expanded interpretation of the Commerce Clause remained in effect until the Supreme Court decided the case of United States v. Lopez (1995), which was the first decision in six decades to invalidate a federal statute on the grounds that it exceeded the power of the Congress under the Commerce Clause. The opinion described Wickard as “perhaps the most far-reaching example of Commerce Clause authority over intrastate commerce” and judged that it “greatly expanded the authority of Congress beyond what is defined in the Constitution under that Clause.”

It is important to note that the federal courts have been the legal gate that has consistently allowed the federal government to grow and concentrate its powers, even by usurping them from the rightful sovereigns, which are the States and the People. (Roe v. Wade was one such case and Obergefell was another). Do you see a pattern here? This is exactly what our Founding Fathers feared – a federal monopoly over the meaning and intent of the US Constitution.

Remember back during Barack Obama’s administration when he fought and schemed to get a government health insurance bill (“Obamacare”) passed. If it weren’t for an egregious intervention by Supreme Court Chief Justice John Roberts, a blatant act of judicial activism, the Patient Protection and Affordable Care Act (PPAC, or “Obamacare”) would have been found to be unconstitutional. There was no Article I power to sustain it. Yet Roberts gave it federal “life” and a constitutional basis when he used legal magic to link it to Congress’ power to tax. Twenty-six States filed suit to have it declared unconstitutional. [See the National Federation of Independent Business, et al v. Sebelius, 2012].

Here is how that situation would have worked out if the Senate represented the interests of the States: The US House would have passed the bill and then it would have gone over to the Senate. The States, informing their representatives, would have emphasized that the bill was unconstitutional and infringed on an area traditionally and historically reserved to the individual states. The Senate would have voted against the bill, thereby preventing it from becoming law. Alternatively, the bill could have gone back to the House where defects could have been addressed to bring it in line with the Constitution and then it could have gone through the passage procedure with better luck.

The 1985-86 US Congress passed a bill titled the “Firearms Owners’ Protection Act” (codified as 18 U.S.C. 924) which amended the Gun Control Act of 1968 to redefine “gun dealer” and to exclude those making occasional sales or repairs. It also exempts certain activities involving ammunition from current prohibitions, permits the interstate sale of rifles and shotguns, provided that: (i) the transferee and transferor meet in person to accomplish the transfer; and (ii) such sale complies with the laws of both States. Furthermore, it presumes the licensee to have actual knowledge of the laws of both States. It revises the current prohibition against the sale of firearms or ammunition to certain categories of individuals and makes it unlawful, with certain exceptions, for any individual to transfer or possess a machine gun. [for a more detailed list of amendments, go to this government link:  https://www.congress.gov/bill/99th-congress/senate-bill/49 ]

The statute 18 U.S.C. 924 contains a “Penalties” provision – 18 U.S.C. 924 (c)(1)(A):

(c)(1) (A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime,

(i)  be sentenced to a term of imprisonment of not less than 5 years…… 

There was a potential constitutional problem with this provision. Nowhere in the statute is “crime of violence” defined as having “violence” as one of its elements. This problem wasn’t addressed until 2019.

In 2019, in the case United States v. Davis, the Supreme Court held that this provision, which provides enhanced penalties for using a firearm during a “crime of violence,” is unconstitutionally vague. As such, it violates the Due Process clause of the Fifth Amendment. The judicial doctrine of prohibiting the enforcement of vague laws rests on the twin constitutional pillars of due process and separation of powers. Only the people’s elected representatives in the legislature are authorized to “make an act a crime.” Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide and the right to know clearly and exactly what type of behavior a law prohibits. Unconstitutionally vague statutes are easy for law enforcement officers to abuse and they open the door to judicial activism.

How could a Senate comprised of representatives appointed by state legislatures been able to prevent the problem with this law? States are exceedingly scrutinous in laws affecting the right to keep and bear arms. Assuming that States select their brightest to represent them in the Senate, the body of Senators would likely have picked up on the “vagueness” problem. The Senate would have refused to affirm the bill, would have sent it back to the House for amending, and then taken it up again only after its constitutional defects were remedied.

In 2020, several cases were brought citing employment discrimination on the basis of sexual preference and on transgender status. They alleged that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation and/or transgender status. The cases were consolidated in the case of Bostock v. Clayton County, Georgia, and the question before the Court was whether Title VII’s prohibition against employment discrimination “because of . . . sex” includes discrimination based on an individual’s sexual orientation and gender identity.

The Supreme Court found that each of the plaintiffs was protected under Title VII. In a 6-3 decision written by Justice Neil Gorsuch, the Court found that each of the employees’ sex played a role in their adverse employment actions and, applying a literal interpretation of the statute, concluded such discrimination is forbidden. The Court acknowledged the employers’ argument that Congress, when it enacted Title VII, contemplated that “the term ‘sex’ in 1964 referred to ‘status as either male or female as determined by reproductive biology.’”

Congress, in 1964, could have included a provision to ban discrimination based on “sexual orientation” and on “gender identity” but it did not. In dissenting opinions, Justices Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh stated that the majority departed from Congress’s intent when Title VII was enacted. The majority, however, asserted that the statute’s text should serve as the measure of Congress’s intent and that “when the meaning of the statute’s terms is plain, our job is at an end.”

The Supreme Court committed judicial activism in the Bostock case, by substituting its interpretation for the interpretation of the legislature (Congress). What the Court should have done was to remand the bill back to Congress for amending, if deemed important enough. Laws are the supreme province of the legislature.

How could a Senate comprised on representatives appointed by their state legislatures been able to intervene on such a situation? Such a state-led body of Congress could have issued a public statement asserting a policy whereby the Senate judicial confirmation process will be infinitely more scrutinous, making sure to vet each appointee thorough, pinning them down on where he or she stands on judicial activism, interpretation ideology, views on issues and prior Court opinions, etc. With the Senate being the States’ “check and balance” to a president’s judicial appointments, its members can make that confirmation grueling.  

In July 2022, the US House passed a federal gun control law – H.B. 7910 (“Protecting Our Kids Act”) which would make various changes to the federal firearms laws, including establishing new criminal offenses and expanding the types of weapons and devices that are subject to regulation. Among the other changes the bill proposes to make are the following:

  • prohibits (generally) the sale or transfer of certain semiautomatic firearms to individuals who are under 21 years of age;
  • establishes new federal criminal offenses for gun trafficking and related conduct;
  • establishes a federal statutory framework to regulate ghost guns (i.e., guns without serial numbers);
  • establishes a framework to regulate the storage of firearms on residential premises at the federal, state, and tribal levels;
  • subjects bump stocks to regulation under federal firearms laws;
  • generally prohibits the import, sale, manufacture, transfer, and possession of large capacity ammunition feeding devices; and
  • requires the Department of Justice to report on the demographic data of persons who are determined to be ineligible to purchase a firearm based on a background check performed by the national instant criminal background check system.

Think of how a Senate comprised of representatives appointed by the state legislatures would react to such a federal gun control law. States – most states, that is – are very protective of the right to keep and bear firearms without burdensome federal regulations.

Think of how a State-led Senate would handle the border issue and the illegal immigration issue and the drug trafficking and sex trafficking issues. These are particularly important and critical issues to the States and consequently, they would make sure their representatives in the Senate did the right thing to force the federal government to take its responsibility at the border very seriously.

The Senate, as the Founders agreed, should be the legislative body for the individual States. They understood that the House of Representatives would be the body that represents the people and therefore, each State would have representation that correlates with its population. The small states, at the Philadelphia Convention, were concerned that this way of selecting legislative representatives would discriminate and be disadvantageous to them and consequently, their influence, their concerns, their issues, etc would be minimized and essentially ignored in the US Congress. The Senate, therefore, was proposed as a co-equal legislative body with equal representation of all States – each State getting 2 senators. It made sense. As a co-equal legislative body, and as a direct representation of the States, the States could feel comforted that they were represented equally by their new “common” government.

Once again, the transformation of the US Senate in 1913 by the addition of the Seventeenth Amendment to our Constitution weakened one of the strongest connections between Senators and their States as sovereign entities and destroyed one of the strongest and most important of constitutional/governmental checks and balances. It has made it easier for Senators to pay less attention to local or state leaders’ concerns about federalism and more prone to follow the popular will, even if it has meant sacrificing State sovereignty, and we have certainly seen this over the past 100 years or so. Our Founding Fathers and the drafters of our precious founding documents did their jobs with the utmost skill and intelligence, basing all decisions upon a diligent study of history, with the urging of Providence, and with their ultimate goal in mind – the preservation and security of individual rights and liberty.

I’ll make the point yet again – The Constitution holds all the answers for the problems that are plaguing our country. And most of the problems stem from a government that has consistently ignored its Constitutional limits, has been overly ambitious, and has played more to politics than to the American people. Furthermore, ambitious politicians and ambitious political parties have weaponized the federal government for their own purposes. One particular remedy, the US Senate, as described and recognized in the original Constitution (Article I, Section 3) is very important as it puts the power of the States directly in the business of government. Unfortunately, the Seventeenth Amendment was passed to take that remedy away.

I therefore urge citizen activists to contact their state representatives and their DC representatives to demand that the Seventeenth Amendment be repealed. This way, having US senators selected by state legislatures and therefore acting for the benefit of state interests, state sovereignty, states’ rights, can once again be an immediate and powerful check and balance on the federal government, integrated physically and meaningfully in the very design of the legislative branch. Of course, keeping the federal government limited and confined to the restrictions in the Constitution, is the best way to maintain and secure our precious and essential rights and liberties.  

Of course, the most important reason to repeal the Seventeenth Amendment is to restore the rightful balance of power between the federal government and the State governments, and in doing so, restoring the rightful balance of political power between the federal government and the People.

I hope I have made that point clear.

REPEAL THE SEVENTEENTH AMENDMENT !!!

References

Federalist No. 45 (written by James Madison) – https://avalon.law.yale.edu/18th_century/fed45.asp

Interpretation of Article I, Section 3, The Constitution Center – https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/765

Kentucky Resolutions of 1799 (written by Thomas Jefferson), The Avalon Project –  https://avalon.law.yale.edu/18th_century/kenres.asp  

Virginia Resolutions of 1798 (written by James Madison) – https://billofrightsinstitute.org/primary-sources/virginia-and-kentucky-resolutions

Henry Lamb, REPEAL 17 NOW! Why the 17th Amendment Should Be Repealed and How to Do It, National Center for Constitutional Studies, January 2011.

About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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