by Diane Rufino, April 19, 2023

RESOLUTION to CALL FOR THE REPEAL OF THE 17th AMENDMENT

Whereas, our Founding Fathers incorporated a plan for a national legislature proposed by Connecticut delegate Roger Sherman, which articulated a bicameral US Congress;

Whereas, the original US Constitution provided 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”;

Whereas, 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 laws and policies to force citizens and businesses to its demands;

Whereas, to address that potential problem, 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 powers, the States, through their senators, could immediately block such laws and presidential abuse;

Whereas, 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);

Whereas, the Constitution treats Senators quite differently from House representatives, and as far as our Founding Fathers were concerned, it was for a very good reason;

Whereas, in the Constitution provided the minimum age for membership in the House of Representatives to be 25 years of age and for every seat in the House to be up for re-election every two years and 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;

Whereas, 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;

Whereas, 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;

Whereas, the original system of state legislature-appointment of U.S. Senators, in fact, did exactly what it was designed to do – limit the tyrannical proclivities of the central government;

Whereas, all that changed in 1912 when Congress passed the proposed 17thAmendment on May 13 and then when the States ratified it on April 8, 1913;

Whereas, the 17th 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”; 

Whereas, while not changing the qualifications for a senatorial candidate or the longer term of office, the 17th Amendment calls for a dramatic change in how US senators are selected; Senators are chosen and elected by the people, just as House representatives are, and they have become political creatures rather than representatives of the States and their sovereign interests and concerns;

Whereas, as our Founding Fathers understood, 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 and with each branch exercising a power that “checks” a power of another branch;

Whereas, the system of checks and balances is a critical part of the Constitution; with checks and balances, no one branch could become too powerful and the federal government itself could never become too powerful;

Whereas, federalism, or “dual sovereignty,” is our strongest and most effective element of check and balance, as well as a unique design feature of government. [Federalism is a system of government in which the same territory is controlled by two levels of government – a division of government power between the States and the federal government];

Whereas, the transformation of the US Senate in 1913 by the addition of the 17th Amendment to our Constitution weakened one of the strongest connections between Senators and their States as sovereign entities and destroyed one of the most effective of constitutional/governmental checks and balances;

Whereas, the Senate, as the Founders agreed, should be the legislative body for the individual States – the House of Representatives would be the body that represents the people and therefore, each State would have representation that correlates with its population;

Whereas, federalism is the last and most important of our checks and balances because 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, and perhaps a federal court opinion as well;

Whereas, in America, the states existed first and they struggled to create a national government that would not compromise their individual sovereignty, and the US Constitution is “hardwired” with the tensions of that struggle;

Whereas, the States demanded that the 10th Amendment be added as a condition to ratification as a further reminder to the federal government and the People that its powers are limited to the plain words and provisions in the Constitution and the remainder are reserved to the States;

Whereas, a limited government was the intention of our Founding Fathers, as evidenced and articulated in the Declaration of Independence and the US Constitution (as explained in the Federalist Papers and other writings by them);

Whereas, the growing power (tyranny) by the federal government for the past one hundred and ten 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 immediate pushback when the federal agencies intrude into jurisdictions that should rightfully belong to the States;

Whereas, Thomas Jefferson explained this inevitability; he wrote (in 1799, in the Kentucky Resolves): “That if those who administer the general (federal) government be permitted to transgress the limits fixed by that compact (the US Constitution), 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… And “should 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”;

Whereas, Jefferson then articulated the doctrine of Nullification, which is just a fancy term for the purpose of the division of government power;  

Whereas, Jefferson continued in the 1799 Kentucky Resolves: “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”;

Whereas, the power of Nullification (ie, federalism) makes it the most critical government feature in helping to keep the federal government in check and preventing it from usurping powers not specifically delegated to it and thus becoming tyrannical;

Whereas, 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 to provide an immediate check on federal authority;

Whereas, since 1913, with the 17th Amendment, the States, through their representatives in the Senate, are no longer able to act for our benefit, which is, of course, to check the power of Congress and the president so that the federal government remains ‘limited’ and our essential rights and liberties remain safe and secure;

Therefore, Be it Resolved, that the US Congress must introduce a proposed Constitutional amendment to repeal the 17th Amendment in order to restore the Congress to its original design and intent.

And Further be Resolved that repealing the 17 Amendment is the rightful remedy to reverse the growing tyranny of the federal government.

Most Importantly, be it Resolved that the most important reason to repeal the 17th 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.

Reference: Diane Rufino, “Why It Is Crucial That We Repeal the 17th Amendment,” Forloveofgodandcountry.com, April 4, 2022.  Referenced at:  https://forloveofgodandcountry.com/2022/08/06/why-its-c