Freedom Watch
Is Any Part of the Constitution Unconstitutional?
The short answer to the above question is: Yes.
The short answer to the question above is: Yes.
Here is the back story. The elections this past November were truly historic for those who love freedom. The Tea Party, a grassroots libertarian insurgency cobbled together from disaffected Republicans and libertarians, managed not only to strike fear into the Establishment, but actually to throw off the Establishment’s hand-picked candidates in favor of those supporting limited government. The Republicans were able to ride this wave, taking control of the House and achieving a filibuster-positive number in the Senate. What many voters may not have known, though, is that if the Constitution we cherish were still in its original form with respect to the Senate, they would never have been able to vote for Rand Paul or Marco Rubio, and that would have been a good thing.
The 17th Amendment to the Constitution, which provides for the direct popular election of senators, was enacted in 1913, at the height of the Progressive Era. Originally, the Constitution had provided for state legislatures to appoint U.S. senators, a realistic reflection that the Constitution was a compact of sovereign states. It meant that senators would not be focused on public campaigning; they could do what they were elected to do. They would represent the interests of the states that sent them — not the people in the states, but the states as sovereign entities.
The Founding Fathers’ original intent in providing for indirect election of senators was to place a strong check on the power of the federal government. At the federal table, the people were to be represented by the House of Representatives, the nation as a nation was to be represented by the president, and the states as sovereign entities were to be represented by the senators whom the states sent to Washington. The beauty of this federal table concept was the veto the states had on the encroachment of their sovereignty by the feds. The 17th Amendment killed that veto, took away the states’ place at the federal table, unleashed the feds’ appetite for power, and assaulted the delicate constitutional framework the founders gave us.
Consider the ways the process of recalling a rogue senator differs between then and now. Before 1913, if a senator were to assault state sovereignty, the people of that state were able to exert influence on the state legislature, which is held accountable every two years by a popular vote. The state legislature would be able to recall a senator immediately, thus sending a powerful message that those in the highest seats of federal power could be instantly dethroned.
Now, only the voters of 18 states have the power of recall. And, you must remember, the senator will likely have enough of a constituency, dependent on the largesse she provides, that will have an interest in keeping her where she is. Since 1913, there has never been a senator recalled.
This is not a dead issue; it is one that has been picking up steam. Sen.-elect Mike Lee (R-UT), who was swept to power in the recent elections, advocated the Amendment’s abolition during his campaign. Think about it: If it weren’t for the 17th Amendment, President Obama’s health care legislation would never have come to pass because senators who were held accountable to their states would never have agreed to impose an unfunded mandate on them.
As the Tea Partiers educate themselves about what is good law and can stay, and what is bad law and must be purged, I would urge them to take a second look at the 17th Amendment and consider whether more democracy is what we want, or if it’s really more checks on the voracious federal appetite for power that we need.
Letter to the Editor View all comments (196) | Leave a comment
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Doorgunner| 1.4.11 @ 6:22AM
"As the Tea Partiers educate themselves about what is good law and can stay,... "
Anyone who would lecture upon the merits of constitutuional amendments should possess a measure of crediblity in all circles; Truther Andrew Napolitano has pi**ed away whatever amount he ever had.
American Spectator, what were you thinking?
dlb| 1.4.11 @ 7:03AM
Ad hominem. Do you have any other response to the man's argument?
Doorgunner| 1.4.11 @ 7:52AM
Yes.
It's a hastily contrived and ill-considered scheme predicated on the belief that a majority of governerships will remain in Republican hands for a long time. Look at the "purple" states and tell me how this 17th repeal would actually help.
And the next time a clown tells you it's raining, I suggest you look out the window instead of at that pretty boutonnière he is wearing. To yell "ad hominem" is not an argument either.
jo blo| 1.4.11 @ 8:04AM
'It's a hastily contrived and ill-considered scheme predicated on the belief that a majority of governerships will remain in Republican hands for a long time.'
All he seems to be doing here is explaining why the Founders structured selection and removal of Senators the way they did. This is not a 'scheme' concocted by the judge. It was formulated by the Founders, who did nothing 'hastily' or 'ill-considered'.
Ed in North Texas| 1.4.11 @ 9:25AM
You missed his mistake in the response. It wasn't the Governors of the states who (in the past) elected, and could remove, Senators. It was the state legislature. No wonder he didn't understand Napolitano's point, he doesn't understand (refuses to?) the facts of the history, much less the reason for the power sharing arrangement the Founders designed (and the Progressives of both parties destroyed).
jo blo| 1.4.11 @ 2:24PM
I didn't miss it. It's just that the more glaring problem (to me) was that by accusing the judge of being hasty/sloppy for taking the Founders' position. In my experience, trying to attack on two fronts may win the argument, but it can often sacrifice the greater, more general point to the lesser, more technical point.
Thanks, though.
Bob Tackett| 1.7.11 @ 5:12PM
Amen, my friend...it is always the empty bucket that makes the most noise!
Michael DePietro| 1.4.11 @ 1:11PM
Who holds the governerships is irrelevant since prior to the 17th ammendment the legislatures selected the senators with no role for the governors. The governors only appointed senators temorarily if the senators ,resigned, died etc and the legislature was not in session. More importantly I think Judge Neopalitano's larger point is that a system that made Senators more responsive to the states legislatures would be inherently more conservative as in general the states will resist giving up power to the federal governament. State legislators are more responisve to the will of the people than the feds, I have had the opportunity to address my state legislature in person and in session, my state senators or representatives are basically neighbors. IF I really dislike something they did I can call them at home, or knock on their door! the federal legislators are remote, less accessible and thus less accountable. It is pretty tough except in the most left wing of lefty states ( Think California) For the states to impose kooky left wing ideas. That is The Judges basic idea.
Brooklyn Dave| 1.4.11 @ 3:18PM
I personally enjoy Judge Napolitano's writings. Unfortunately, because we have had the people electing senators since 1913, they are not going to give that up. I agree that a lot would be different today if the US Senate was controlled by the state legislatures. We wouldn't have such tenured pigs such as Kennedy, Byrd or even Strom Thurmond who sat there for a bizillion years. I think term limits for these clowns would be a more realistic policy than going back to pre-17th Amendment times.
idalily| 1.4.11 @ 3:53PM
Agreed. That particular piece of progressive poop known as the 17th Amendment will not go away. Most Americans will see giving that up as an erosion of their liberty and freedom, even though in truth, it is the opposite. Sad, but true.
maverick muse| 1.4.11 @ 5:57PM
Perhaps the citizenry may well realize that We the People aren't really electing senators since 1913. Sure, we vote. But by and large, elections are bought by special interests. The Pelosi/Reid/Obama majority proved, even through lame duck, that it isn't the voters whom Congress and the President represent at work in government.
Grant| 1.5.11 @ 10:46AM
In some ways, term limits may be the answer, but overall, I would say not. The problem with term limits is two-fold: 1) You not only limit the "bad" politicians, but you also limit those politicians who actually do a good job and 2) Some issues are simply too complex for a non-career politician. Issues that take years to comprehend, but also years to determine a suitable course.
For years, I have advocated repeal of the 17th to anyone who would listen, but its repeal will only come from a grass-roots movement like the Tea Party.
RabidAmerican| 1.5.11 @ 7:57PM
Grant,
While we're apparently on the same side regarding repealing the 17th consider: we already have term-limits. Every two years for Reps and 6 for Senators the voters can term them out at the polls.
The idea that "some issues are simply too complex for a non-career politician" or that "Issues that take years to comprehend, but also years to determine a suitable course" exist is nonsense. An ethical person of average intelligence beset with doing the work of the people only need to know the rules (the constitution) to make a decision.
Whenever an issue becomes complex, it's only because special interests or nefarious groups are muddying the waters; and always at our expense.
YeloStalyn| 1.6.11 @ 9:49AM
Furthermore... if the legislators in DC followed the Constitution there would be VERY few issues come up at all... and most would already have answers spelled out in that very document. Even if something were to come up, their hands would most likely be tied seeing as how unless that issue is specifically listed as an area of fed involvement... it is irrelevant how complex it is because it will most likely be a state by state issue.
tinnerjim| 1.16.11 @ 9:13AM
Well put Rabid-man..."nefarious groups are muddying the waters..." speaks volumes to the need for BIG TIME campaign finance reform.
I can no longer hold my nose and go along with the free speech argument.
Mit Ailbu| 1.8.11 @ 12:14AM
This is a really good point.
Issue 1 above) If the State is happy with what the senator is doing, he/she could be there as long as the State remains happy.
Issue 2 above) If an issue comes up that the State feels someone else would have more expertise and experience in addressing the issue, they can send that person for the necessary time, then they can recall that person and send the previous person back, or select another.
I agree with a previous poster that it will be very difficult to get congress to relinquish their power.
I know a lot of people who feel it is their right to vote for their senators. Perhaps it is similar to their right to have food stamps and a free HD box for their TV signal.
lbweb| 1.8.11 @ 12:58PM
No, not term limits. That does nothing to address the very real problem of having Senators who are virtually accountable to no one. Repeal the 17th Amendment and return to the wisdom of the original protocol.
Stormzeye| 1.4.11 @ 1:31PM
Dorgunner and others should read this excellent history behind the 17th Amendment (http://en.wikipedia.org/wiki/Seventeenth_Amendment_to_the_United_States_Constitution) it shows that there were many problems with electing Senators through state legislatures and bribery and corruption existed almost since the 1820s as a result of state involvement. Though the benefit seems to have been that statewide election was unnecessary, being a favorite of the party in power in each state was a necessity. Interesting piece and further discussion and research is warranted.
Walking Horse| 1.4.11 @ 2:50PM
"Bribery and corruption" -- we are shocked. Where there is government, there will always be bribery and corruption, for it appears we get only one George Washington per republic.
The issue is who holds the leash on the corrupt politicos in question? When the State legislatures held the leash on Senators, those Senators were accountable to those Legislatures, not to a pro forma popular election campaign whose greatest risk to incumbents is paper cuts. That arrangement served to curb the appetites of the other corrupt megalomaniacs in the rest of the Federal government, a net benefit to us.
That curb hasn't existed for almost a century, and the destructive results are garishly exemplified by the past two years of Federal governance.
Michael| 1.6.11 @ 3:44PM
Yes, but does the State legislature hold the leash? Or does the Senator wag the dog by ensuring that Federal largesse is rained upon districts where the state assemblyperson is their supporter and deny such things to their political enemies?
What makes repealing the 17th is a hard sell is that right now people have the right to directly vote a person up or down. you are asking them to turn over that to a proxy on their behalf.
Frankly, I think people like to wield their own hatchet when given the opportunity.
Oldefarte| 1.4.11 @ 3:23PM
It would help [as the Judge suggests] by its dilutive capability. Each individual state's legislature would have the ADVISE & CONSENT/CHECKS & BALANCES power that now is possessed by the Washington D.C.'brainwashing mechanism of liberalism. Currently, states' voters elect U.S. Senators to represent them, and when same arrive in our nation's capitol, they are effectively propagandized by the radicalism of said environment. The taxpayer-voters of the states therefore lose their influence over the unmanaged state representatives. If the 17th was declared unconstitional by a constitutional convention, then the state legislatives would takeover decision making and could be more effectively managed/controlled by the home crowd voters. Don't be a DUMBARS!!!!!
lbweb| 1.8.11 @ 1:04PM
Would it take a constitutional convention to overturn the 17th? I hope not, I am against a concon. Too much chance of losing more than we gain regarding the checks and balances written into the Constitution.
OllieK| 1.6.11 @ 9:50AM
Lib cynic.
lbweb| 1.8.11 @ 1:05PM
Why do you say that? Oldefart didn't sound cynical to me.
Hatelibs| 1.8.11 @ 12:35AM
Doorgunner, you're a man with the brain the size of a pea who wouldn't last two seconds in a debate with Napolitano, Judge, that is. Maybe 4 seconds with Janet. Go sell your stupid somewhere else.
Tom| 1.4.11 @ 8:05AM
What some see as ad hominem others see as looking at the source.
A. C. Santore| 1.4.11 @ 9:41AM
"ad hominem" means to attack the person. "His feet stink," or "His teeth are crooked."
To say that he has lost credibility is not ad hominem. "Credibility" attaches to what he says, not what kind of person he is.
Sadly, he has, indeed, lost credibility - and some time ago. This article is nonsense [not ad hominem] because an Amendment to the Constitution, when adopted as required in the Constitution, becomes a part of the Constitution and therefore cannot be "unconstitutional."
To conclude that it is would require one to say that every Amendment which changed a part of the Constitution in-the-main is also "unconstitutional."
Nonsense.
BG1| 1.4.11 @ 10:22AM
You missed the point entirely.
The 17th ammendment was enacted as the means to compromise the Constitution, and was enacted by the power of the PROGRESSIVES, i.e., those seeking to bring down the Constitution because they didn't like the ongoing constraints against their motives of Socialism. Stealing away more and more power for the Progressives was the only reason for enacting the ammendment, and subsequently reduced the power of the people.
This article should be summarily struck down because it violates the 9th Article.... read it!
Len| 1.4.11 @ 10:33AM
9th Article? Can you please correct this, or clarify. The US constitution does not have a 9th article, so it's unclear what you are referring to.
Nick| 1.4.11 @ 12:44PM
Len,
All amendments to the Constitution of the United States are referred to as "Article." Collectively they are referred to as Articles of Amendment. You can look it up:
http://www.usconstitution.net/first12.html
http://www.house.gov/house/Constitution/Amend.html
(See note 13.)
John| 1.4.11 @ 10:27AM
Maybe you missed his qualifier, "if the Constitution we cherish were still in its original form."
Hatelibs| 1.8.11 @ 12:58AM
A.C. Ad hominem does NOT mean personally attacking someone, you nitwit. Argumentum ad hominem is a phrase understood by people who actually studied logic, something neither you, Tom or boordunner should worry your pretty empty heads with. It refers to the an attempt to undermine the speakers argument by attacking the speaker rather than the argument. joblo was spot on in his assessment of boordunners ill conceived tripe. I don't expect the three of you to understand, I seriously doubt you have the capacity.
lbweb| 1.8.11 @ 1:15PM
Thank you, thank you, hatelibs. That is a great phrase to know because it happens all the time when trying to convey the facts to progressive people. Thank you.
Tom| 1.4.11 @ 8:25AM
Doorgunner: Obviously you have had one to many recoils. If you weren't a liberal, i.e., meaning no one can communicate with you except by agreeing with your utterly inane statement, you'd see that it IS an utterly inane statement. "...should possess a meausre of credibility in all circles". Does this mean that your circular & nonsensical argument (above) has no credibility, so we can safely dismiss any of yours?
On this, I agree! We can.
Oh! Doorgunner, between your apparent therapy of listening to MSNBC & listening to Michael Moore, why don't you try stop drinking the far left Kook (er Kool) Aid....oops. A bridge far to far.
Here's a suggestion for your post PTSD work. Clown!
Doorgunner| 1.4.11 @ 9:08AM
Not a Liberal -which you could've deduced by my "purple state" comment-, not a fan of Michael Moore or MSNBC and, further, a pintle-mounted M240H has no felt recoil as it is all absorbed by the airframe.
My remarks were meant to convey that I fear putting the power of appointment back into the hands of Governors who may prove to be not the men, or women, we elected -think Schwarzeneggar.
And as for Napolitano, well, sorry, he lost me with his Rosie-like pre-planted bomb theororizing concerning the World Trade Center. We, conservatives, need credible people espousing our beliefs if we hope to persuade "the vital center". Yes, the Founders made wise, well-considered decisions; by example we should not make hasty decisions attempting to rectify our own past mistakes in tinkering with it. My own current experiences here in Iraq seem to convince me more of that every day.
Or is that all too clownish for you?
Ed in North Texas| 1.4.11 @ 9:38AM
Thanks for your service. Some of us never received that in a timely manner. Three points I'd like to make:
1. Andrew Napolitano isn't a Conservative, nor even a conservative. He is a Libertarian. There is a significant difference, even after Barry Goldwater put the Republicans and the Libertarians into coalition.
2. You are forgiven for any errors in understanding history. Anyone who only thinks M240H in connection with "door gunner" is a fairly recent product of our now dysfunctional "education system".
3. Desiring to change a mistake after 97 years of experience with the mistake does not qualify as "hasty".
Big Tony| 1.4.11 @ 11:25AM
I sorry my friend but when you fail to comprehend the fact that it was the state legislatures that appointed the Senators and not the state governors. What ever point you were attempting to make is completely lost in the fact that your basic premise is erroneous.
lbweb| 1.8.11 @ 1:24PM
First of all, doorgunner, thank you for your service. My heartfelt gratitude to you for your sacrifices and those of your loved ones.
Second, you keep saying the decision would be in the hands of the governor and that is just not correct. It would be in the hands of the state legislature.
Third, Judge Napolitano may be wrong about 911, I don't know, I have not seen his opinion on that, But you can not fault his knowledge of the Constitution simply on that basis. That would be illogical.
With much respect, I ask you to consider my words.
Sean| 1.4.11 @ 8:29AM
Andrew Napolitano has more credibility in his little pinky finger than all you neocons put together. Which one of your neocon liberals are you willing to put up against Napolitano? He is discussing the Constitution and state legislatures you imbecile.
Oldefarte| 1.4.11 @ 3:07PM
Obviously, Doorgunner was EJECTED by the Judge's argument!!!!!!!!!!!
Alan Brooks| 1.15.11 @ 10:08PM
There should be sunset clauses for all governors: as soon as the sun goes down on their states' economies, off they go to write their Readers Digest memoirs.
Bill Hussein O'Stalin| 1.4.11 @ 6:27AM
A very compelling article. And it shows how we've gotten off track.
Appleby| 1.4.11 @ 7:18AM
We have an appointed Senate in Canada, staffed mainly by elderly ex-hockey players who are an unofficial House of Lords whose main occupation appears to be spending money on themselves.
Grant| 1.5.11 @ 10:58AM
Sports latitudes and nomenclature aside, how is your House of Lords any different than ours?
Alan Brooks| 1.15.11 @ 10:09PM
You know the answer: no different.
People are the same everywhere.
MoeBlotz| 1.4.11 @ 7:25AM
Mr.Napolitano suggests that the direct election of senators is unconstitutional. The 17th amendment was voted on by all the states and passed according to the procedure stipulated in the constitution. How is that unconstitutional? We can push our elected elite in Washington to change back to the original intent,but the self indulgent will be reluctant to relinquish power.
Len| 1.4.11 @ 8:22AM
It's called harmony. If one part is amended that makes it so out of agreement with the rest of the instrument, then it can rightly be considered unconstitutional.
MoeBlotz| 1.4.11 @ 8:43AM
Considered by you and Judge Napolitano? Who tested the 17th amendment in court? Ifinfact (a little Mayor Goode lingo there) the 17th amendment is unconstitutional,then those who benefit from it must act to repeal it. Do you see a dichotomy there?
Len| 1.4.11 @ 8:54AM
Tested in court? Why would that matter, men will do what they will. In truth I consider anything since the south was forcibly conscripted to "remain" in the union, and forced to ratify certain amendments as invalid. The US constitution was a voluntary agreement between certain parties to have a common government for certain purposes, and all powers were grants from the states, so anything that fractures that agreement, or destroys the ability of the states to determine for themselves that they are being benefited from that agreement is null and void.
It's the dirty secret we all know, but few are willing to acknowledge, the US constitution was thrown aside by Lincoln and the reconstruction congress and in it's place a government of force ruling over the states, rather than on their behalf.
YeloStalyn| 1.6.11 @ 10:00AM
Hence the change from referring to the United States as a plural to a singular at that time. A small issue, to be sure, but signaling a MAJOR change in political philosophy amongst both the rulers and, eventually, the ruled.
"the United States are..." vs "the United States is..." or "THESE United States" vs "THE United States"
Vern Crisler| 1.4.11 @ 9:00AM
Constitutional amendments cannot be tested by the courts. They overide the courts. An amendment -- no matter how silly, such as the Prohibition amendment and other Progressive era amendments -- are the Constitution.
It doesn't make any sense to say the Constitution is unconstitutional.
Vern Crisler| 1.4.11 @ 9:01AM
...is the Constitution.
Rogue Elephant| 1.4.11 @ 9:34AM
This is where Judge Napolitano goes off the rails and invites the very sort of judicial activism that has wrecked the Constitution. It is not the role of the court to substitute its judgment for Constitutional lawmakers.
It is the role of the court to read the Constitution as a harmonious whole - but not by disregarding amendments that it decides are unharmonious.
Otherwise, the Court might disregard the proposed Repeal Amendment if such were enacted.
Ed in North TExas| 1.4.11 @ 9:49AM
Rogue wrote: "It is not the role of the court to substitute its judgment for Constitutional lawmakers."
I guess I missed the part of the column where Napolitano advocates the Courts take up the issue of the 17th Amendment.
Admittedly, it was hyperbole on Napolitano's part to use the term "unconstitutional" when describing the problems with the 17th Amendment. I believe we used to call this "poetic license" and was available to all writers of fiction and opinion. Come to think of it, it now even applies to "news stories".
Rogue Elephant| 1.4.11 @ 10:51AM
It was worse than hyperbole. It furthers the pernicious idea that courts should substitute their judgment for lawmakers.
WayneH| 1.4.11 @ 11:52PM
Wow. You must be reading a different article than the one I'm seeing at the top of this page. The judge merely said that "IF the Constitution we cherish were still in its original form with respect to the Senate, they would never have been able to vote for Rand Paul..."
Ray| 1.4.11 @ 1:43PM
I agree with you, MoeBlotz. The Constitution include procedure to "restructure" the "framework" of the Constitution itself, and the 17th Amendment does just that. Contrary to the beliefs of so many people, Judge Napolitano included, it was the Founding Fathers INTENT to allow the "framework" of the Constitution itself to be adaptable, in order for the Constitution to reflect our society as it changes over time, as all societies do.
The Founding Fathers were intelligent enough to understand that, yes, societies DO change and that, yes, the Constitution will need to change with that society. The problem we have today is that Congress and the federal government have, for some many years now, ignored the Constitutionally authorized method of implementing that change through the enactments of Amendments and have, instead, enacted laws and policies in a process of legislation and administration which are in blatant contradiction to the Constitution itself.
Brian Mc| 1.4.11 @ 7:31AM
17th Amendment to the Constitution: the biggest mistake this country ever made. Can you boys and girls say, "Ted Kennedy"?
Might be the Constitution is too hard to read and for those who agree...hand over your voter registration card.
This country has a snowball's chance without repeal of the 17th.
Ezzie| 1.4.11 @ 7:46AM
Well, the Constitution is over a hundred years old so nobody today can really understand it.
Larry| 1.4.11 @ 8:04AM
It's a living document as well.
GavInTucson| 1.4.11 @ 5:18PM
I laughed out loud when I saw that interview. Leave it to a lib to get confused by a seven page document. :)
David Waldman| 1.4.11 @ 8:13AM
Haha! Yeah! The overwhelmingly Democratic Massachusetts legislature would NEVER have appointed the members of a wealthy and prominent family of Boston Democrats to the Senate! We're saved!
Rogue Elephant| 1.4.11 @ 9:43AM
Mistake? Perhaps. Unconstitutional? No.
Have you considered| 1.4.11 @ 7:49AM
Judge Napolitano is exactly correct in his interpretation of the founders intent and the damage done by the 17th Amendment, and I would extend this to the 16th as well.
Most people still do not realize that our founders provided for a Flat Tax by apportionment in Section 9, in the event that Section8 taxes proved inadequate for the treasury's ostensibly limited needs.
I have not read the legislative history of either of these amendments, and what arguments were used against the citizenry at that time to get these ratified, but I would doubt they would be accepted today.
Firstly, we now have easy access to our founders writings, which explain Why the Constitution was written the way it was. These amendments destroyed 2 of the most stalwart barriers to abuse.
Secondly, I think the citizenry of yesteryear believed that our government "wore a white hat" and that our representatives had the interests of the country at heart, and therefore could not possibly have nefarious intent in the passage of these amendments.
My mother at age 74 still clings to this "white hat" belief, but they have proved themselves unworthy of this confidence in my mind.
Len| 1.4.11 @ 8:33AM
The problem with the 16th (if it was actually ratified) is that it is worded poorly, but nonetheless income at that time was understood as net income, and in no way meant wages or salaries. If you were to read the debates, the papers of the days, and other sources you would see that the 16th was meant to correct the inequity of taxation, wherein the wealthy were so able to escape taxation by passing on the costs to the common man.
Indeed during Alabama's debate over ratifying it, they were the 1st to do so, the question specifically came up of whether the 16th touched wages or salaries, and the answer was no. It is the IRS that has misapplied their code to tax the common man.
Remember the clause saying that any direct or capitation tax must be apportioned has not been removed, and in the understanding of the day a tax on wages or salaries was considered a capitation tax, or a tax on the person. Further, all taxes are still qualified by Article 1, section 8, so any tax must be for the purposes listed or it is unconstitutional.
Vern Crisler| 1.4.11 @ 9:04AM
Nonsense. They knew exactly what they were doing when they passed the 16th Amendment. From whatever source derived includes wages, which was how most people earned money in those days.
Pay your taxes and stop reading tax protest books. It's a dead end.
Len| 1.4.11 @ 9:22AM
You're an idiot. I just referenced the Alabama debate where they stated income was not wages, and you say different. How stupid can one be to say the opposite. I have read the debates and the papers of the day, I know you haven't else, you wouldn't moronically say what you said.
Hey dumb bunny, read for yourself, go read the transcripts from Alabama's debates, which were then put in the NY Times and other papers, so the other states also knew this. I am just dumbfounded at how dumb someone can be to deny something when clear proof is offered.
"In introducing the measure [16th amendment] to the House [of representatives], Col. Bulger, who is one of the State's political leaders, stated that he was 'anxious to see Alabama, the first state in the Union, to give her indorsement to the Sixteenth Amendment to the United States Constitution.' The only interruption to his speech was a query by Representative J. T. Glove of Birmingham, who wanted to know if the amendment would affect salaries. Col. Sam Will John, also of Birmingham, responded that IT WOULD NOT (my capitalization)..." Income Tax Voted in Alabama House, N.Y. Times, page 1, August 3 1909.
I could give myriads of other references, but you are obviously too dumb for them to get through to you. Oh yes, they knew what they were doing, and wages and salaries were not in there.
Len| 1.4.11 @ 9:33AM
I'll give another reference since the local idiot Vern continues to highlight his stupidity.
From an interview with A.E. Wilson, governor of Kentucky...."The poor man does not regard his wages or salary as 'an income'...
"But the point to be made is that most of the people who favor this Federal income tax believe that under it will be the Carnegies and Rockefellers and other multimillionaires who [will] pay for the running of the government. The fellow out West thinks that the rich man in New York is the one who is going to pay the income tax; the man way from the rich centres thinks that the burden will fall exclusively upon the rich centres...The poor man or the man in moderate circumstances does not regard his wages or salary as an income that would have to pay it's proportionate tax under the new system." Gov. A.E. Wilson on the Income Tax Amendment, N.Y. Times, part 5, page 13, February 26,1911.
Hey dumb bunny, go ahead give me proof that wages and salaries were considered income. Cite me all those involved in the debates who claimed this.
Vern Crisler| 1.4.11 @ 9:46AM
http://www.irs.gov/taxpros/art.....32,00.html
Why don't you give your full name Len? Maybe IRS would like to hear your "arguments." Wesley Snipes might be interested, too.
Len| 1.4.11 @ 10:03AM
Further proof of your stupidity...you give a link to the IRS, well of course they are going to justify what they do.
Hey dumb bunny, cite me some of dem dere congressmen or state legislators, or newspaper articles demonstrating that the people were saying they wanted their salaries and wages to be taxed. Anyone who can read can see that the people were intent on having the wealthy pay their share.
You also still ignore the fact that the apportionment clause still exists, so wages and salaries cannot be taxed unless as directed by that clause, as to tax a wage or salary is to institute a capitation tax.
Vern Crisler| 1.4.11 @ 10:08AM
It's useless to argue with tax protestors -- they never listen -- so the courts routinely throw them in jail. The 16th amendment removed the apportionment requirement. Beware of tax protest arguments, AmSpec readers.
Len| 1.4.11 @ 10:23AM
Yes, AMSPEC readers, just bend over and let a corrupt and out of control government do what they will. Refuse to be educated, refuse to know the truth, refuse to correct that which is wrong. Look the other way while men continue to pile burden upon burden upon burden, and tell us how we are to live and regulate every aspect of our lives.
Remember AMSPEC readers that the reason people are in government is because they are wiser than you, and will always do what is right, and anything that seems wrong is not, because you AMSPEC readers are not as wise and good and just as your rulers.
Hey Vern, dumb bunny, did I get it right?
Vern Crisler| 1.4.11 @ 9:36AM
I've read all this stuff for years. Tax protestors are lawyer wannabes who know enough to be dangerous -- mainly to themselves. IRS has a website dealing with all these bozo tax revolt arguments. Read it.
The end result of all this tax revolt stuff is jail. Ask Irwin Schiff.
Vern Crisler| 1.4.11 @ 9:56AM
http://evans-legal.com/dan/tpfaq.html
Vern Crisler| 1.4.11 @ 10:06AM
See especially in the above site, under the heading "Statutory Fallacies": Wages are not income
AmSpec readers may disagree with Progressive era amendments, as do I, but they should not follow the tax protestors down the primrose path. The courts have heard all the arguments before, and summarily dismiss tax protest arguments. They usually fine lawyers who bring the cases, and they also throw the tax protestors in jail. As I said, it's a dead end, as Irwin and Wesley found out.
Len| 1.4.11 @ 10:19AM
It's only a dead end as long as the people take it. The same thing could easily have been said prior to the revolutionary war, as GB refused to acknowledge their many wrongs.
One might as well say it's a dead end to argue that the US constitution is supposed to be an instrument of limited and articulated powers. It's very clear that it is, so why even bother with anything? Just let corrupt and foolish men do what they will. Why even read articles at a site like this?
Sam Vaughn| 1.4.11 @ 10:48AM
Vern, how much taxation is "fair".. Who determines what is "fair". Every American alive today can be construed by the IRS to be "violating" the tax codes. There are;
--the Internal Revenue Code and regulations add up to one million words and is nearly seven times the length of the Bible.
--The income tax code and its associated regulations contain almost 5.6 million words -- seven times as many words as the Bible.
--Taxpayers now spend about 5.4 billion hours a year trying to comply with 2,500 pages of tax laws....and often fail
--The heart of IRS abuse lies in the existing tax code. Most of the folks who work for the IRS are good people just trying to do their job, but they are caught in a bad, overextended tax system. At 3,458 pages, twice the length of the Bible, it's impossible for the average taxpayer to know, understand, and accurately apply its provisions. Even tax experts cannot do so reliably
--With its 6,000 pages and 500 million words, the complexity of our tax code is the prime source of frustration and anger felt by millions of Americans toward their government
Before you denigrate those who protest paying over 50% of their income in various government taxes, fees, fines, etc. you should "seek to understand before you seek to be understood".
You must be a government employee who thinks that your future depends on ever expanding taxes to fund your life.
Len| 1.4.11 @ 5:14PM
BTW, the above link is the state's denial of the truth.
An example is the very first "fallacy" listed. The claim is that the 16th does away with the need for apportionment, but without actually striking out that clause this cannot be true, and again one only need reference the debates to see that this was not the intent of the framers or ratifiers of the amendment.
When the 18th amendment was repealed, the 21st clearly said so. For the 16th to have done away with the necessity of apportionment for direct and capitation taxes it would have had to say so.
By claiming that any revenue whatsoever is income one clings to a lie. Income is referred to in different ways, among those is net income and gross income.
For those wanting the truth on this, read what the founding generation considered direct and capitation taxes, and then read the debates and commentary concerning the 16th. I'm sure most here at AMSPEC know that laws and court decisions are often made contrary to what was original intent and understanding, and this subject is not exempt from that.
Vern Crisler| 1.4.11 @ 8:56PM
A direct tax by Congress on capital or property still has to be apportioned, but not a tax on income (per the 16th Amendment).
Len| 1.4.11 @ 10:09AM
The end result of a lot of things is jail, that doesn't prove anything, as corrupt men will do what they want regardless of the truth, and then idiots like you take that as proof of correctness.
Doc Ollie| 1.4.11 @ 4:04PM
Just a heads-up, Len. I basically agree with your arguments but you do significant damage to your position when you call someone an idiot for disagreeing. It comes off as childish and impatient. I'm just saying.
lbweb| 1.8.11 @ 1:39PM
Vern, after reading the last back-and-forth between you and Len, I would have to say argumentum ad hominem to you. Fight facts with facts, don't attack your opponent.
Larry| 1.4.11 @ 7:57AM
Great and compelling commentary Judge. Thanks.
Tom| 1.4.11 @ 8:07AM
"Since 1913, there has never been a senator recalled."
And how many were recalled prior to 1913? This is only valid as an argument if indeed recall was used prior to the passage of the 17th ammendment.
Len| 1.4.11 @ 8:08AM
Just a question to get people thinking...the US constitution says that the powers it has are delegated
Section. 1. All legislative Powers herein granted
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.
So if that is true, how can states be made to grant powers through amendments or forced to remain in a "union" if those powers are granted? Please think this through, however uncomfortable the conclusion may be.
MoeBlotz| 1.4.11 @ 8:48AM
We the people were suckered into thinking we should give up our power to smooth talking senators. How many generations have grown up not realising the power is in our hands,and we relinquish at our peril?
Dai Alanye | 1.4.11 @ 12:52PM
The Constitution went into force for all thirteen original sovereign states once it had been accepted by nine states. The original agreement tacitly accepted by all the colonies/states was that they would be ruled by the decision of a super majority.
In other words---once in, never out. (Nothing to do with the 17th Amendment, of course.)
Len| 1.4.11 @ 2:43PM
"Once in, never out." That is one of the stupidest things one can say.
1) The US constitution says the powers are delegated, if you don't understand what that means you are too stupid to deal with. If one delegates authority, one gives to someone to use on their behalf. It is not owned by the delegatee, but on loan, and may at any time be withdrawn as it is the property of the delegator, else they would not have been able to delegate in the first place.
2) The US constitution says nothing about being permanently in, so how friggin stupid is to say it does?
3) The Articles of Confederation said they were perpetual, but obviously they were not. The states seceded from a perpetual union...despite EXPRESS language forbidding it.
4) it is the right of the people to alter or to abolish it (government), and to institute new government, ..This includes leaving a union that is working against the people's interests. You are arguing that a state or a few states would be bound as slaves to accede to the majority at any time even if that majority continually violates the agreement.
Len| 1.4.11 @ 2:45PM
BTW,....The Constitution went into force for all thirteen original sovereign states once it had been accepted by nine states. ...This is contradicted by many things, but among those that the first congress spoke of wooing the other states to join them.
Go away idiot. There was no such agreement.
Len| 1.4.11 @ 2:55PM
Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
The US constitution itself makes it clear, only if a state ratified the US constitution would it be in effect for that state. Yet you said once 9 states ratified, all the states were in regardless..Please learn to think.
LenJr| 1.6.11 @ 11:54AM
Boy, dad, I've been reading all your posts, and I've concluded that you are a moron. Your regurgitataion of RushnGlenn is amazing. Do you chew it at all before you puke it back up on all of us? I imagine the real reason you hate paying taxes so much is that numbers > 5 make your thick skull ache. Maybe you could start your own country: The United States of Idiocy, where everyone gets to keep everything for themselves, and nobody pays for anything. Good luck, dumbass.
lbweb| 1.8.11 @ 1:51PM
LenJr, I guess the nut doesn't fall far from the tree as far as name-calling goes. I was just about to address your dad on that when you chimed in.
By the way, though, your dad is correct in many more ways that he is incorrect.
Len, you have my sympathies for having such a disrespectful son. However, I see his disrespect for others is a mirror of your own, unfortunately.
If we are to participate in the arena of ideas, let's remember to be respectful of others. Otherwise we diminish the entire debate.
lobster| 1.4.11 @ 3:42PM
Virginia and Rhode Island ratified the constitution under the understanding that they'd be allowed leave the union in the future if they so chose.
Vern Crisler| 1.4.11 @ 8:59PM
Madison said a state could place no conditions on ratification. It was either yes or no.
lobster| 1.6.11 @ 6:58PM
I did NOT say those ratifications were conditional; I stated that those states ratified the constitution only under the impression that they would be able to leave if they chose to at a later date.
Ramon| 1.4.11 @ 8:50AM
Repealing the 17th Amendment would be nice. However, given that it has become a part of our political tradition I don't think that will happen. Virginia has proposed an amendment which would allow a vote by 2/3 of the state legislatures to nullify any federal law or ruling by the Supremes. This would hobble the Federal Colossus nicely. It certainly would end the "flyover" status of most states. I am certain if this amendment is enacted, Obamacare (and many other abominations) will vanish like fog before a strong breeze. Amend to defend!
George True| 1.4.11 @ 8:54AM
The 17th Amendment effectively reversed the power of the states, and removed their control over the federal government. As a result, we now have two separate and largely redundant houses of the people, and no representatives of the states. This is in direct contravention to the stated intent of the constitution to have the senate be directly representative of and accountable to the states, by way of the legislatures.
lbweb| 1.8.11 @ 1:55PM
That is it in a nutshell, George. Exactly so. A huge mistake that must be first admitted and then fixed.
Richard Baker| 1.4.11 @ 9:02AM
The Founders wanted the Senators to remember from whence they came and the source of their offices. The 17th Amendment was the dis-connect. Judge Napolitano is correct. Remember, the Volstead Act was the law of the land and was finally repealed in 1933. The Amendment process can generate mistakes.
Tom| 1.4.11 @ 9:18AM
The difference being there was pretty widespread support for the repeal of the 18th Ammendment. There is next to none for repeal of the 17th.
Phil| 1.4.11 @ 11:49AM
If no one talks about the idea of repealing the 17th Ammendment and why it would be a good idea, there will never be support for repealing it. I think repealing it would be a good idea. It has not in any way fixed the problem which was the justification for passing it (Senators being beholden to special interests) and has created new problems all of its own.
PJ| 1.4.11 @ 9:04AM
Judge Napolitano's logic makes plenty of sense. It's almost as if the US Senate is redundant, ie another legislature branch elected directly by the people. Who represents the states?
Yet, we still need the current form of the Senate. It still "regulates" the House. If we didn't have the Senate & all its functions were transfered to the House, the House would behave very much like the inept parliamentary forms of govn't that are in existence today.
JP| 1.4.11 @ 9:09AM
From a purely practical and political point of view the 17th Amendment is a disaster. Senators today no longer represent thier states. And some like Sen Lugar even brag about it. The problem now as it stands is how does one repeal it? Our Senators surely won't vote for it.
Tom| 1.4.11 @ 9:21AM
It just might be time for a new Constitutional Convention.
maverick muse| 1.4.11 @ 6:07PM
As I understand them, there are no constraints in advance as to what will result, how far or complete changes will result. The first convened to facilitate the existing Articles of Confederation, but resulted in the US Constitution. I'm not complaining about that, but leery of today's Washingtonian revisionists. It isn't as if Libertarians rule the day, Tea Party or not. Another convention would provide perfect opportunity for authoritarians to finally dismiss the Constitution all together.
lbweb| 1.8.11 @ 1:57PM
My sentiments exactly, maverick.
Richard Baker| 1.4.11 @ 9:27AM
Tom:
Then the effort to generate that support for repeal should begin. The 17th generated an Imperial Senate which needs to be curbed. I'll defer to the Founders on this. Remember, the Volstead Act had immense national support in 1919.
Tom| 1.4.11 @ 10:05AM
I think such a campaign would be a good idea. Even if it did not result in the repeal of the 17th amendment it might educate people on the true purposes of our federal system. Which would be a good thing in itself.
RCV| 1.4.11 @ 12:06PM
Good luck on selling to the American people the idea that state legislators know better than they do about who should represent their state in the Senate.
jgo| 1.4.11 @ 9:36AM
So far, so good, but the US House does not represent the public.
The original intent, made clear in the never ratified and now moot 1st amendment of the bill of rights congress passed to the states, was that there should be a congress-critter for every 30K to 50K in population. Now, we've got 600K-700K per congress-critter. (Even 1:40k was stretching the ability of any one person to represent the best of the knowledge, reasoning and opinions of such a large number of people.)
Another perversity is that they've taken raw residents as the measure for districting rather than numbers of citizens, so, with the addition of political insanities of the age, illegal aliens are better represented in the US congress than citizens.
And what's with those fasces on the walls of the House chamber?!
owyheewine| 1.4.11 @ 9:38AM
I think we need to look at the possibility of unintended possibilities. Is it a good idea to put the election of senators in the hands of the big spending, corrupt political machines that run a lot of the bicoastal blue states? I'm thinking that might be worse than the current law.
Palehorse| 1.4.11 @ 11:18AM
While bi costal blue states will more than likely appoint blue senators, the opposite can then be said about those of us in red or purple fly overstates. How many liberal senators represent these states that other wise would not?
Richard Baker| 1.4.11 @ 9:48AM
jgo:
Fasces are a symbol of "strength through unity." Just because Mussolini misused them doesn't erode the meaning in the US. They used to be on the dime, are part of various military insignia, and the Mace of the United States, among many others uses.
Thomas J| 1.4.11 @ 9:53AM
The States founded the Federal Gov reserving all powers not enumerated in the Constitution (the Federal Gov's Founding Charter) to themselves. Any two or more States can simply declare the Federal Gov in violation and refuse the notion that the Fed Gov (Said Violator) at any level, has any authority to over-rule on the matter. In other words, the States while currently denied their original representative seats can still exert their influence and rein in an out of control Government legally by simply asserting the authority preserved for them in the Federal Governments Founding Charter.
Vern Crisler| 1.4.11 @ 9:01PM
No, this cannot be done. See Madison's Notes on Nullification.
Hey Vern| 1.5.11 @ 1:30AM
When judges and jury's abide by no law or binding contract there can be no justice or peace - and unless the evil bully is confronted by a superior power composed either of two or more lesser victims (States) or some superior righteous power - all hope of liberty will vanish from the face of the Earth. Thus we find ourselves faced with a situation much as our founding father’s did. Only today our opposition is in fact an idiotic, colossal, parasitic bureaucracy combined with an apathetic and utterly dependent welfare class that would make our founders powerful 19th century British military opposition look like an unstoppable force of futuristic storm troopers by comparison.
Even still, don’t underestimate the evil doers of our time, educate yourself, read all of their literature and planning which they have prepared for so long and see to it that you and your family are ready for the time to come, when they - they start the great conflict execute your defenses and more if you are able, God willing. Our children are in their military and their only true source of protection, make sure they are ready, in the mean time, limit your tribute and document everything that they do.
Never forget that the Soviet Union fell from far less opposition then you will likely get from any freedom loving county in Texas.
So take comfort, as it is we that hold the power, not them.
Justice Is Coming.
In the mean time, prepare, document and get right with God.
Darrel N' Darrel| 1.5.11 @ 3:02AM
When a contract is broken the victim is not obliged to carry their end of it. It's BROKEN, Wake-Up. Also, you might want to read the Declaration as it bears some along this context. The perp's gig as his own police, judge n' jury is up bub - we just ain't putin' up with it any longer.
F4PhantomGIB | 1.4.11 @ 9:54AM
I agree wholeheartedly with Judge Napolitano and have privately advocated for the repeal of the 17th for a number of years.
To responsd to everyone who seems to think having state legislatures or governors appoint Senators is a bad idea, the law of unintended consequences dictates that going back to the original would be less traumatic and problematice than trying to fix the current situation. Do you really think we would have so many unfunded federal mandates at the state level if the Senate represented the state legislatures?
Yes, Virginia, there will be corruption in state appointment processes. It will be easier deal with there, where it is close at hand, than in DC.
Rogue Elephant| 1.4.11 @ 10:14AM
It's unclear amending senatorial election procedure will fix our problem - that the courts have disregarded the Constitutional text in order to expand the power of the federal government. The courts have trampled federalism through expansion of the commerce clause and created an imperial presidency through an administrative state that violates separation of powers.
How does repealing the 17th Amendment repair this? Perhaps the good judge believes that changing Senate election procedure will ultimately change the composition of the court. The court will disregard stare decisis and undo prior decisions.
These seem like steep hills to climb in an indirect assault on the courts.
Macwell| 1.4.11 @ 11:00PM
Judge Napolitano has written a very well researched book about that rouge court, and the pollution that has come from SCOTOS. Yes, and uphill climb indeed, that's the point the Judge was making. I happen to agree with him. It is not our lawmakers, who are responsible to we the people, that are deciding how we all live, it's the out of control courts. Especially the unelected ones.
juswt sayin
ACynic| 1.4.11 @ 10:23AM
The Constitution provides a procedure for the amendment process. As long as the amendment process is followed, ANY changes whatsoever can become constitutional; good or bad.
So, no part of the Constitution can ever be unconstitutional. The best example is the "3/5" of a vote allocated for each slave; this was totally and completely constitutional, albeit very wrong.
The amendment process allows the Constitution to change with the times. It is this reason, and this reason ONLY, that the Constitution can be construed as a living document; because it can be amended (i.e., changed, modified).
Prohibition was enacted by an amendment to the constitution; subsequently another amendment nullified the original amendment imposing prohibition.
The amendment process can be used to change ANY PART of the constitution.
wbheff| 1.4.11 @ 11:49AM
"So, no part of the Constitution can ever be unconstitutional. The best example is the "3/5" of a vote allocated for each slave; this was totally and completely constitutional, albeit very wrong. The only way that a person can make this statement is if he has no knowledge of the basis for that ruling. I suspect that the person who wrote it is in that category. A small bit of research reveals that it was a right decision at the time it was made. And, once there were no longer any slaves, it became overcome by events.
LibertarianBob | 1.4.11 @ 11:58AM
The 3/5th law did not refer to individuals. It referred to the total head count in the southern states. If it weren't for the 3/5th law we would still have slavery because there would have been many more pro-slavery representatives.
Nick| 1.4.11 @ 1:03PM
ACynic,
Slaves never had "3/5 of a vote."
They were only counted as 3/5 of a person, in the census, for determining state representation in the House.
ACynic| 1.4.11 @ 9:12PM
I never said slaves had 3/5 of a vote. I said that 3/5 of a vote was ALLOCATED to slaves. Yes, I realize this was used to determine the number of House seats in congress. I should have been clearer, though, frankly, I thought readers would just know what I meant by Allocated.
I do realize that this 3/5 ths compromise was needed to form the United States of America, otherwise there may have been two USAs or even several, as each state(s) went their own way. But frankly, this would have been preferable to formally instituting, albeit implicitly, slavery as part of the US Constitution. Accepting slavery totally contradicted the Bill of Rights and the basic premise of the Declaration of Independence where it was declared that there were unalienable rights given by the CREATOR, not by people. Yes, maybe the USA would not exist today as we know it. And most probably the southern states would have banded together to form their union. But this would have been preferable to allowing slavery to exist within our constitutional republic.
Nick| 1.5.11 @ 10:13AM
ACynic,
You are still not being very clear.
No votes, or fraction of votes, were set aside for slaves. The 3/5 clause was strictly for the purpose of apportionment of a states representatives.
The slaves were not represented, as they could not vote. A slave owner would list his slaves and 3/5 of their number counted towards his state's population. Which then was plugged into an equation for apportionment purposes.
Menkin| 1.4.11 @ 11:14AM
If I can trust my memory (I don't have the quote in front of me) Oliver Wendal Holmes DID call the 18 amendment unconstitutional in private converation. It took the 21st to repeal it. If you read the contemporary TREASON OF THE SENATE which describes how senators were creatures of special interests (especially rail roads) you'll see that repeal of the 17th is not a panacea.
George S| 1.4.11 @ 12:06PM
This whole 17th Amendment thing is an exercise in futility. Let's say it is repealed... what changes? The Constitution forbids direct election of the President and Vice President and, instead, directs that electors chosen by their States cast ballots in the House and Senate, respectively. Yet, when was the last time Electors went against the popular vote? So, in effect, Judge Napolitano, are we are electing presidents unconstitutionally? Technically, the Electors are casting the ballots, but they are being directed to do so based on the popular vote.
The same thing will happen with state appointment of Senators. States will still hold elections similar to primaries (which most did prior to the 17th being ratified) and the winner will go before the legislatures for a rubber stamp. In the event that there are states without election, there could be a problem -- that the legislature may be so dysfunctional or corrupt that they are unable to reach consensus to a Senate appointment. leaving the upper house with a vacancy. Would that be constitutional?
John Navratil| 1.5.11 @ 3:12PM
George S.,
As a happy coincidence (intended, of course) the electoral vote and the popular vote have generally been the same. Contrast Bush v. Gore.
However, the electors are bound on the first ballot by the popular vote within their state. This is intended to give marginally greater impact to the least populous states and is precisely why we, mathematically, can have a President who did not win the popular vote.
The alternative of direct elections would mean that the President would be chosen by the large population areas (NY, LA, Chicago, Houston) and campaigns in Iowa would be the stuff of history.
It should also be observed that prior to the 17th amendment, the Senators we NOT elected popularly, but appointed by the legislators.
George LeS| 1.4.11 @ 12:08PM
There isn't any mention of "recall" in the Constitution. It simply states that Senators are chosen for 6 year terms:
"Section 3 - The Senate
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."
Therefore, it isn't clear that a rogue senator is subject to such removal; according to the text, you just have to wait until the end of his term, & then not choose him again. Like NJ judges.
Nick| 1.4.11 @ 1:08PM
George LeS,
Article 1, Section 5 states: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, [...]."
So, it is up to the Senate if a recall is allowed, or not.
mzk1| 1.4.11 @ 6:33PM
No, I don't see it. Based on that logic, Congress could ignore the vote altogether.
If there is no recall in the Constitution, then the best the Senate could do would be to expel a member ,and why would they expel one of their own?
Nick| 1.4.11 @ 8:10PM
Mzk1,
You're not basing that on anything that I wrote.
Section 5 plainly states that each House shall be the judge of the elections of its own members. That means they could make a rule to allow a recall.
I'm not an expert on Senate rules like Sheets Byrd was, so, I don't know if they do have such a rule. I just stated that they could make such a rule.
The Constitution gives the legislatures of the several States the power to pick electors to choose the President and Vice President. It doesn't say how. Today, all the states use the popular vote of their state to see which party will pick the electors.
Is this unconstitutional? No, it is not. The state legislature still has the final word. This is why algore never had a chance in 2000. Florida's Republican legislature never would have sent algore's electors to Congress.
The Constitution also gives the power to admit new states to the union. Again, it doesn't say how. This is what legislation is for.
Bob Miller| 1.4.11 @ 12:18PM
If we voters elected enough patriots to Congress, there would be no need for adding or subtracting amendments.
Alwin| 1.4.11 @ 12:33PM
I don't see any change in the CA Senators with a 17A repeal. They serve the state legislative majority's interest interests, which happen to be abrogation of civil rights and treason at every turn.
Nick| 1.4.11 @ 1:41PM
Mr. Nepolitano,
You need to educate yourself on the history of why the 17th Article of Amendment was ratified. As do some of those who are defending you.
In the mid-to-late 19th century, states that had divided legistlatures, one house democrat, the other house Republican, were routinely delaying the election of their state's Senator.
States were going two years, and more, without a Senator. Both of Delaware's seats went vacant for 2 years at the turn of the century.
I'm not a defender of the 17th Article of Amendment. I used to be for its repeal. But, when I learned why it was passed, I realized that repeal would not fix the original problem. I'm sure a solution could be found that doesn't include the popular election of Senators.
Also, you stated that candidates didn't campaign for their state's Senate seat. Ever heard of the Lincoln-Douglas debates?
Finally, an amendment, by definition, can't be "unconstitutional." The provision was established by the Framers. They knew they were not infallible, and that their invention would need tweaking.
The 12th Article of Amendment (1804), the second amendment ratified after the Bill of Rights, changed the way the President and Vice President were chosen, after the Jefferson-Burr debacle of 1800. Did the Founding Generation act unconstitutionally?
mzk1| 1.4.11 @ 6:36PM
That's a good point. Remember the deadlock in New York? And I remember a really nasty one when we lived in Harrisburg.
I think maybe we need a revision, not a repeal. Something that will give it to the legislature, but also a mechanism to break the deadlock.
Tom| 1.4.11 @ 1:47PM
The Constitution is not a "compact of sovereign states." The Articles of Confederation were, but the Constitution is a compact of the people - read the differing language of the respective preambles. The 17th Amendment may undermine the idea of federalism, but it did so in a constitutional fashion - through the amendment process. Whether this is a good or bad thing is subject to debate, as all of these comments demonstrate, but please don't misstate the nature of the Constitution in the process.
Vern Crisler| 1.4.11 @ 9:07PM
Dittos Tom.
RCV| 1.6.11 @ 3:15PM
Agree wholeheartedly. I don't even understand Napolitano's concept of "unconstitutional amendments", unless the process of ratification was flawed.
Ray| 1.4.11 @ 2:00PM
Has it occurred to anyone, Judge Napolitano included, that the 17rh Amendment is a means for We, The People, to, you know, CURB the corruption that State government selected appointees to the Senate has caused in the past? Isn't that exactly what the Founding Fathers were trying to achieve, the reduction of political corruption through the enactment of citizen control over government? And doesn't the 17th Amendment help US, the "common" citizen, to achieve that control, by allowing US, the citizen, to choose our own Senators instead of allowing yet another government authority to make that choice for us?
Think about it for a minute , people: Do you really want a single political party (like what happens when a single party gains majority control of a State legislature) to CHOOSE your senators for you, or would you rather have the chance to make that choice for yourselves?
The current process may not be perfect, but at least We, The People, now have a say as to who will represent us in the Senate. We can, theoretically, pick the people who will best represent the citizens, not the political party in power. You can't say the same if the 17th Amendment didn't exist.
Repealing the 17th amendment will achieve nothing except an abdication of civilian control over the Senate. We, the People, barley have enough control as it is. Let's not reduce that control even further by removing the ability to influence the Senate through direct elections.
Nick| 1.4.11 @ 4:29PM
Ray,
If the Framers had wanted We, the People, to make all the decisions, they would've replaced the Articles of Confederation with a direct democracy.
They did not. They formed a representative Republic.
The only say We, the People, had in the Constitution, as originally written, was in choosing the members of the House of Represetatives.
Also, most of the original 13 States had property requirements in order to vote in elections.
Ray| 1.4.11 @ 2:11PM
Oh, and by the way, Judge Napolitano, the states STILL have control over the appointments of their Senators, just as the Founding Fathers wanted. It's just that now, thanks to the 17th Amendment, the citizens of each state have the ability to choose those Senators instead of having that choice made for us by a state legislature.
Len| 1.4.11 @ 2:24PM
The point was that those having already been elected by the people would be able to better know who could best represent the states interests. The 17th was an attempt to put an end to Senators being influenced by money, but now it's all the easier for that to happen.
Ken (Old Texican)| 1.4.11 @ 2:17PM
Folks,
The TITLE of the article started the problem...and then the judge's article went down hill from there.
Thank God...judges are not juries!
YOU, people are the juries. Play dumb and be seated...then nullify if you want to.
Screw 'em!
L. E. Powers| 1.4.11 @ 3:06PM
What hasn't really been discussed here much, except by Nick, is the history of the 17th (and 16th) amendments. A number of states were already directly electing senators, with the decisions being rubber stamped by legislatures. After all, if that is how the legislature chose to choose, it was legal.
The 16th amendment was much the same way. The Congress had been using the Federal right to collect excise taxes since the 1850s to get at corporate and/or individual incomes. They were torturing the constitution, but getting away with it much as today's Congresses torture the Interstate Commerce clause.
In both instances, Congress and the states were enshrining the political reality into the Constitution. In both cases they were ceding state control and say in the Federal government. Why would the States do that? Because State legislatures are made of individuals that belong to political parties and sought office to get certain things done. As was suggested earlier, everybody thinks that in the end they will get the other guy to pay for it, forgetting that they are likely to be the other guy at some point.
Our country was founded on the idea that no man or government should trample on our God-given rights, but that there were some things we needed to do in the collective in order to achieve the vision of the Constitution's preamble. The original intent certainly tried to achieve a balance of tension between the Federal and State governments, and the individual. Most politics boils down to how people perceive that balance, and who will wield that power. When we go into the voting booth, we need to think about what a candidate really believes about both of those things. In the end, one who believes government should be of limited and enumerated powers but wants power for themselves will create a rather large government in order to justify their continued exercise of power.
Vern Crisler| 1.4.11 @ 9:10PM
Nicely said, LE.
Oldefarte| 1.4.11 @ 3:13PM
Some of you seem to missing the Judge's suggested remedy, which does not exist inside a court of law, but within a called CONSTITUTIONAL CONVENTION!!!!!!!!
MacWell| 1.4.11 @ 11:19PM
The Judge also sees that out of control courts, have further taken control out of the hands of even the legislators. It's seems I agree with Oldefarte. We the people must NEVER fall asleep again, our lives, and our descendants really DO depend on it.
juswt sayin
MacWell| 1.4.11 @ 11:19PM
The Judge also sees that out of control courts, have further taken control out of the hands of even the legislators. It's seems I agree with Oldefarte. We the people must NEVER fall asleep again, our lives, and our descendants really DO depend on it.
juswt sayin
gary siebel| 1.4.11 @ 4:44PM
The Tea Party style attacks on the Constitution virtually guarantee Tea Partyers will be a flash in the pan phenomenon.
Senators elected by legislatures would be no more beholden to their States than those elected by the people of those same States. History has demonstrated again and again that Legislatures can be deeply corrupt, just like individuals.
Napolitano's argument is elitist and insulting. He seems to think the people are incapable of deciding for themselves in regards to what is best for them, or their States. Perhaps he would prefer that the President be elected by the Senate, as was first proposed? After all, such a plan would soon logically follow from his elitist approach.
Once again, I repeat that we are fortunate that amending the Constitution requires a super majority, which spares us from the likes of nonsense such as Napolitano's.
Liberal Reader| 1.4.11 @ 5:30PM
Amen.
I always hesitate to agree with anyone around here, since such agreement usually has the effect of getting the poor conservative with whom I agree smattered with accusations of being a Satan-worshipping Marxist fascist. They may even call you a liberal! But anyway -- your comment makes sense to me.
mzk1| 1.4.11 @ 6:39PM
The problem with your argument is that the logical conclusion would be to favor a Democracy over a Republic, which scares the heck out of me, as the member of a small minority group.
Liberal Reader| 1.4.11 @ 8:54PM
Mzk --
We live in a democracy -- a liberal democracy. The form of democratic government we have is (basically) republican.
Democracy is a broad term that applies to any government that submits to regular or called elections. The word "liberal" in the term above just means "rights based."
You're probably thinking of a "direct" democracy as a frightening possibility. The founders were keen to avoid that at all costs and the Constitution is built to prevent it.
Nick| 1.5.11 @ 10:27AM
Marxist Reader,
See my above response to Ray.
What was your Military Occupational Strategy again? Ha-ha!
Liberal Reader| 1.4.11 @ 5:27PM
Help me out.
The 17th amendment is as much a part of the Constitution as the 1st amendment.
What good is the adjective "constitutional" if it does not refer in some way to the words or at least values enshrined in the Constitution?
The author would seem to promote a political philosophy that says, "I would prefer to live in eighteenth-century America." But that's not a political philosophy. That's just a personal preference or fantasy.
If conservatives want to amend the Constitution again and repeal the 17th amendment, more power to them. But the purist rhetoric of constitutionality they use to defend their ideas is often perilously close to a kind of political nihilism.
mzk1| 1.4.11 @ 6:43PM
I tihnk he is saying that the amendment alter the basic structure of the governemnt, which is what the ocnstitution was mainly about. Few amendments do that in a major way.
What really completely destroyed the constitution was the 14h amedment. Unfortunately, it was necessary. I would not mind an amendment expalining exactly what applies t othe states and what doesn't.
Thom| 1.4.11 @ 6:21PM
The Constitution is “dead letter” without enforcement. Where there is no negative consequence there is no application of the Constitution.
The collective interpretations of the 14th amendment have placed government delivered civil rights as preeminent over enumerated Bill of Right liberties. You cannot have the government delivering “freedom from” rights in conflict with “freedom of” rights and expect the basic tenets and protections embodied in the Constitution to continue.
The 16th amendment destroyed equal protection under the law and property rights as they were understood at the ratification of the Constitution. From that all else will follow.
The 17th amendment destroyed what was left of the “several states” protections left in the 10th amendment after the Civil War started the ball rolling on destroying “states rights”. As of Jan 2011, the bulk of the Senators in the Senate would be Republican if the 17th amendment were still in effect.
The Supreme Court couldn’t find a copy of the original intent if its collective life depended on it. The entire concept of “precedents” and case law has rendered the enumerated amendment process moot. The Supreme Court routinely makes decisions on previous “precedents”. It doesn’t have the balls to actually enforce the enumerated limitations written in the founding documents.
The fourth branch of government, found nowhere in the Constitution, the Federal bureaucracy is both unelected and unaccountable to Congress which has stood in contempt of the enumerated powers and separation of powers for decades. Will the current House of Representatives grasp this?
This nation has been sliced and diced into a million special interest groups all centered around robbing Peter to pay Paul since 1913. We are a “house divided against ourselves” and this will not stand indefinitely.
Long before the election in November of 2010 I said often that come the day after the election there would be a lot of disillusioned people on both sides of the fence. That disillusionment has started to set in as more and more people see that our political process is broken and what some of us hold dear is but toilet paper to the ruling class and their Brown Shirts entrenched in government bureaucracy.
These words are as relevant today as they were when originally spoken, “All that is necessary for the triumph of evil is for good men to do nothing…..” When good men will not speak the name of evil then they are doing nothing…… the enemy within isn’t going to go quietly in the night simply because a portion of one branch of government won an election.
To those who think the Constitution cannot be arrayed against itself and thus portions of it unconstitutional I offer the 16th amendment. Congress could take 100% of what is defined as income via the wording in the amendment and everything else in the Constitution becomes moot at that point. There are no property rights without protections of economic means necessary to secure said “property” and the 16th amendment is in absolute violation of the rest of the Constitution as it stands. The whole concept of a class based “progressive” tax system stands in conflict with the central tenets of the Constitution as written. Who favored the “progressive” income tax system as a means to destroy the free enterprise system? Karl Marx. Without free enterprise there are no individual rights possible in the real world. What “civil rights” are as practiced in this nation today, are “collective entitlements” or the essence of Marx’s ideal that from each according to his means to each according to his needs (as defined by the collective).
This nation has an irreconcilable difference right down to our core and the latest assault on liberty if just the tip of a very large rotten creation underneath.
The last best hope of mankind is on the line here and the bookies are betting on this not ending well……
mzk1| 1.4.11 @ 6:44PM
"Congress could take 100% of what is defined as income via the wording in the amendment and everything else in the Constitution becomes moot at that point. "
Except for the second amendment, of course.... :-)
Thom| 1.4.11 @ 6:49PM
The top marginal Federal tax rate used to be 90% and no one got shot. It isn't necessary to take 100% to accomplish the same end result given not one will work to produce that income when the bulk of it is just stolen right off the top. Something around 70% top marginal rate at the Federal level will in effect with all the other taxes take about everything when all is said and done.
fwb| 1.4.11 @ 7:03PM
It's too bad these so-called Constitutional Scholars have such a limited grasp of the Constitution. The 17th Amendment is NOT legitimately part of the Constitution. In general, amendments can be added by meeting several requirements, i.e. 2/3s both houses and 3/4s of state ratifying. BUT the case with the 17th is that it required 100% or 4/4s of the states to approve. Understanding this point is beyond these scholars. You see, Article V, the same one that sets the requirements for passage of an amendment, includes an overlooked restriction on amendments. No State shall be deprived of its suffrage in the Senate without its permission. Now the 17th deprived all states suffrage in the Senate by changing whom the Senate represents. Prior to the 17th the Senators represented the States. After the 17th the Senators represent the people. At least one state, Utah, voted against the 17th which means Utah was denied suffrage in the Senate without its permission and THAT is in violation of Article V of the US Constitution.
But as is said above the Constitution is dead and has been since the first Congress met. It has never been adhered to by any government. We the People have failed our Founding Fathers by behaving as sheep. How many of you have drawn a line that marks the point where you will stand up and die for your beliefs? How many of you know what the Constitution does not say?
Nick| 1.4.11 @ 7:37PM
Fwb,
Nice try.
You conviently left out the operative word from the end of Article 5: " [...] and that no State, without its Consent, shall be deprived of its [EQUAL] Suffrage in the Senate."
The 17th Article of Amendment didn't deprive any state of its equal suffrage.
You must have studied Con Law under Professor Ditherer.
Vern Crisler| 1.4.11 @ 9:17PM
Thanks for clarifying some of these issues Nick. Unfortunately, the problem with those who think the government doesn't follow the Constitution is that they themselves often do not read it in its entirety. Nor do they know much about how courts have interpreted it throughout the years.
The Real New Deal| 1.5.11 @ 2:42AM
Precedence = The silly liberal notion that some crime once committed is somehow thereafter permitted, acceptable proper and fine. Jack The Ripper got away with murder, as have others. Testify about precedence in our courts and we will only care so far as any of the people responsible for those previous crimes are still alive and can be prosecuted. Those convictions if based in any part on your testimony "Mr Ripper" will be favorably considered towards your sentencing - otherwise, STFU and simply point to where in the Constitution the power you are claiming is enumerated or hang. Added benefit, no more big legal books, any shirt pocket is fine.
RCV| 1.6.11 @ 3:13PM
Precedence isn't a "silly liberal notion." It's the foundation of the Common Law that we inherited from our English forebearers. Countries like France, which have a Napoleonic Civil Law system place little or no value on precedence in jurisprudence. Whether one likes it or not, that's not our legal system, and never has been. that may or may not be a good thing, but it's not a nasty progressive invention.
Jon A Firebaugh| 1.5.11 @ 10:11AM
Vern,
There are arguments on both sides of this topic that make sense, but arguing that the government is following the constitution is ignoring reality, particularly as regards to executive fiat exercised by administrators. This give and take continually plays out in revised legislation and court decisions that expand or reduce the reach of the executive branch, and sadly despite your manifestations to the contrary, court interpretations are not necessarily correct, moral, or constitutional. They are merely political. Sotomayor's UNANIMOUS slap down regarding the New Haven firefighters case is a prime example of wrongheaded judicial activism. If you don't think that government has overstepped it's authority at all levels then you are again ignoring reality. 200+ corporate exemptions from "Obamacare", $500K+ salaries for city employees in Bell, California, and flouting existing bankruptcy law to payoff the UAW.
Equal protection under the law is now a joke in the US.
Nick| 1.5.11 @ 10:25AM
Mr. Crisler,
Thank you, for the kind words.
I'm no expert on the Constitution, but I'm learning all the time. As we all should.
mntx| 1.4.11 @ 8:36PM
The direct election of US Senators may be opposed to the original intent of the position of Senate as stated in the Constitution, however, Article 5 doesn't requiring a weighing against original intent. If it did, there would not be a need for Article 5 in the first place as there would be no need of an amending process at all.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
So, a Constitutional amendment, no matter how much we disagree with it or it may oppose the original intent of another clause, is Constitutional unless it violates the equal protection to the States clause. IE, it may not be right, but it is technically Constitutional until in as such time, the citizens or government follow the Constitutional process to amend it out of there.
Eric Damon| 1.5.11 @ 8:08AM
Good show! I was bothered by the title, because it implies that somehow the 17th Amendment is unconstitutional...even though it is part of the Constitution itself. We may not like the 17th Amendment (I personally do not, BTW) but if it was properly proposed, voted upon, and ratified according to the standards put forth in the Constitution there cannot be anything unconstitutional about it: wrongheaded maybe, unconstitutional not so much!
Vic| 1.4.11 @ 10:46PM
Constitution?, your kidding, right?! Its a real short document consisting of the "general welfare" and "interstate commerce" clauses. O yea, and the "establishment" clause.
Inugomontoya| 1.4.11 @ 11:55PM
Wow! First time on this site. This is thru-the-looking-glass stuff for normal people. The really weird part is so many of the screwballs here think they are mainstream or majority. My guess is you're 00% whiter, maler, and older than a Glen Beck (or Adolf Hitler) rally. Um, not quite like America really is. Oh, yeah, don't go whining about individual freedom while supporting AZ Immigration Naziism, or complaining that voters should actually have a say in who goes to the Senate, WH, or House. Since we elect them to represent our best interests, no doubt that lame duck Congress just did right thing for USA and real Americans -- and they were elected by us 2 years ago. Now GOP has their chance to spit on their country -- but we elected them, so now even the criminally weird get their day. Unlike most who post here, I like USA, our gov't, our people, and our system. The thru-the-looking-glass part is that this is the heart of the "real" conservative, not the howlers and barking moonbats.
Vern Crisler| 1.5.11 @ 6:37PM
You have no idea what you are talking about.
J Madison| 1.4.11 @ 11:56PM
Read Each Federal Departments Mission Statement.
Read the limitations on government directly from the Constitution verbatim exposing this crime.
Read the total sum stolen illegally from citizens and wasted on each department since funding began adjusted for inflation.
State each departments accomplishments to date versus the food stolen from the peoples plates!
Allow members of congress to voice their support for each illegal worthless department.
Allow each wronged member of society and their descendants the right to take back one full handful of flesh ripped from the bones of said congressional criminals who support or voted for these criminal acts.
Rich Rostrom| 1.5.11 @ 12:16AM
Mr. Napolitano and this article are an embarrassment to the Spectator. This is not because he objects to the 17th Amendment or favors returning to indirect election of Senators. There is a good case for those positions.
No, it is the horrific historical ignorance displayed in this passage:
"Before 1913, if a senator were to assault state sovereignty... The state legislature would be able to recall a senator immediately..."
This is completely false. There is no Constitutional basis for a state to recall a Senator, and never has been.
Mr. Napolitano adds "Since 1913, there has never been a senator recalled." This is true; but no Senator has ever been recalled.
I will cite one piece of evidence. In 1875, the Republican controlled legislature of Mississippi elected former slave Blanche K. Bruce to the U.S. Senate. In November 1875, through a campaign of murderous terrorist violence, white supremacist "Redeemers" stole the state elections and took control in 1876.
But the new Democrat-controlled legislature did not recall Senator Bruce. He served his full term, leaving office in March 1881. Can anyone doubt that the Redeemers would have recalled Bruce if they could?
Justin Tyme| 1.5.11 @ 2:22AM
The Only Thing For Sure Is The Current Power Base Is About to Change. Inconceivable as it was in 1770 a rag-tag group of colonists fought against the law of the land, history, precedence, king and country and the majority of their fellow colonial citizens seemingly will to just go along and yet here we are. The only question today is will it be a renewed wave of freedom or its very end? The decision rests within each of us, support the establishment and the 20% liberal base that got us here and be enslaved - or, stand up and demand the Constitution be followed and that violators all the way up to the top be held to account.
Liberal Reader| 1.5.11 @ 1:02PM
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
The preamble is remarkable in several ways -- indeed, we could talk about the ideas it lays out all day.
One thing that intrigues me is the phrase "a more perfect union," which looks forward to a continual search and struggle for justice, prosperity, and so on. The framers did NOT view the Constitution as a political finality; the "more perfect union" (notice they don't say "perfect") is always going to be in the future.
To secure the blessings of liberty, the amendments to the Constitution -- beginning with the Bill of Rights -- have continually expanded democratic power in the country, giving more people more civil and economic autonomy. The trend from the beginning has been one of emancipation and liberalization. I don't doubt reactionaries resent this.
Vern Crisler| 1.5.11 @ 6:40PM
I doubt seriously whether the framers meant by "more perfect union" that government should be expanded. The whole Constitution is about LIMITING government, limiting "democratic" mobs. The Progressives knew this, and that's why they hated the Constitution.
RCV| 1.6.11 @ 3:09PM
Vern: There is indeed much in the Constitution about limiting government, but you know as well as I do that the Federalists who pushed for its adoption did so because they believed there was a need for a stronger centralized federal government. It was the Anti-Federalists -- hardly "Progressives" in your sense of the term -- who fought it's adoption.
If what you're saying is that the Progressives in the post-Civil War era pushed for greater centralization and less power in the states, then I fully agree with you since that historical record is undeniable. In the wake of the Civil War, the push for nationalization as opposed to state federation was strong and carried the day. It was indeed a deliberate, and successful, effort to amend the state-federal balance originally agreed to.
Lee Birkhead | 1.5.11 @ 1:28PM
Isn't it amazing there are so many do-nothing-patriots and experts that consider themselves so much smarter than the Founding Fathers including the progressives that came up with the 17th in the first place? I think the Judge is right in his views that this part of the original constituiton was an important part of the "separation of powers". I disagree that it is unconstitutional but rather a poor piece of legislation. If an official legal ratified amendment is unconstitutional then there are other amendment that must fall in the same category. Such as the 16th. Actually, the 16th Amendment was NEVER ratified and also the Supreme Ct. defined income in a particular case (contact me if you are further interested). Wages are traded & compensated for an exact, predetermined, agreed upon amount of labor. The Supreme identified income with profit as in money recieved in rental property or moneys recieved as selling something of value after deducting the "cost of doing business", like taxing only profit. Wages have no profit!!
The 16th Amendment violated the Constitution or rather invalidated the 5th Amendmt of the Bill-of-Rights: No person shall be...deprived of ...property without due process of law; nor...private property be taken for public use without just compensation. Is that you money you earned, your property or the governments which they can take at their descretion? I think it is obvious the Founders would say that it is yours and not the governments.
Renaissance Nerd | 1.5.11 @ 5:04PM
I'd love to see the 17th Amendment repealed, and I consider it anti-Constitutional rather than Unconstitutional. The Republic founded by our Constitution included all the better versions of government balanced against each other as a proper republic should. There was monarchy with the President, aristocracy with the Senate, democracy with the House of Representatives, and timocracy with the Judiciary. Each of the four major types of government combined into a single republican government. By turning the Senate democratic, which was not a surprise in the extremely anti-aristocratic progressive era, our federal republic became a democratic republic. The power vacuum was appropriated by the Judiciary, who are now the aristocratic branch. Fortunately George Washington instilled a tradition in our military which allowed them to take up the timocratic mantle abandoned by the judges, but the dysfunction of our government remains, because judges aren't supposed to be aristocrats, and the military doesn't really have a place at the table so there is no 'rule of honor' component in our government. Not surprising then that almost anyone in government, hired, appointed or elected, feels free to break their sworn word for any reason they wish.
Right now our military is hanging on to the honor culture and without it no doubt our Republic would have suffered military coups from time to time as have most others. The problem now is that a democratic republic has spawned a government that is anti-democratic, setting the will of the idiot masses as not worth bothering about. The more democratic we become, the closer we get to tyranny (the other side of the monarchy coin) because that's how the cycle usually works.
Of course the natural state of all governments is to devolve towards oligarchy. Senators aren't aristocrats--nothing like 'the best'--they're oligarchs. Most judges are there as well. The Executive is a collection of fiefdoms ruled by 'professional' oligarchs only partially beholden to their appointed bosses. And even the House is run like an oligarchy by chairmen/women.
Repealing the 17th Amendment would not be a universal cure to what ails our republic. But it would be a step in the right direction, and a way of demonstrating that We the People are not going to bend our necks to oligarchs or petty tyrants.
Sonny| 1.5.11 @ 10:21PM
Only an Anti-American Liberal Socialist Marxist Obamacrat, would even say, or contemplate, such a OxyMoronic Question, and or Statement.!!
The answer for all of the Anti-American Liberal Socialist Marxist Obamacrats in question, is NO..
There is No such thing as an Unconstitutional part of the Constitution.!! That's why there is an Amendment section and process, morons..!!
Earl Paazig| 1.7.11 @ 9:18PM
The only thing that could possibly be unconstitutional about the Constitution is any interpretation of the Constitution.
Roma| 1.7.11 @ 9:36PM
This is what they had in the Senate of the Republic in Star Wars and look how that turned out.
Doug| 1.7.11 @ 9:49PM
According to my interpretetation the short answer is "no." The 17th Amendment to the Constitution was legally amended, therefore, making the 17th Amendment constitutional.
The 17th Amendment should be repealed, as it is a complete abomination. It gives the federal way too much power, however, it is no less constitutional than any other amendment to the Constitution.
Pat| 1.7.11 @ 10:48PM
I think that there's a degree of misinformation here that should be pointed out, even if it's just for my own need to see truth.
Anyone who saw putting the Constitution back in and calling out violations of civil and human rights jumped on the Tea Party wagon as a grassroots effort. Not long into it the Republicans started "claiming" it when it saw the success. Ron Paul was greatly supported because he made sense, not because he was spouting partisan agenda.
danq | 1.10.11 @ 11:40PM
I left this comment on another blog/discussion group, http://repealthe17thamendment.blogspot.com/ which quoted this column by Judge Napolitano. Here is my comment:
Judge Napolitano's argument about the 17th being "unconstitutional" because of the Founders' views makes him (and conservatives/libertarians) look really stupid to non-conservatives.
According to this logic, the 15th, 19th, 23rd, 24th, and possibly the 26th would be unconstitutional because if the Founders wanted women and blacks to vote, DC to vote for President, and block the possibility of a poll tax or age limit, they would have set up the original Constitution that way.
Also, opinions varied - recall that Alexander Hamilton was not only famous for his duel with Aaron Burr, but wanting a President-for-Life. Others felt only landowners should vote, and thus the closing time of the voting booths.
What Judge Napolitano should have focused on was how the 17th is a possible conflict with Article V: "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Is a Constitutional amendment from 100 years ago "consent" by politicians today?
Mark Hall| 1.11.11 @ 12:07PM
Interesting that this article assumes that a state senate-appointed Senate would not have approved health care, given that more than half the states have Democratic majorities in both houses, and nine more are split; given the numbers as they stand on Wikipedia (http://en.wikipedia.org/wiki/List_of_United_States_state_legislatures) we may well have been looking at a much more solid Democratic majority in the Senate for the last Congress... a rough guess (based on Wikipedia numbers and assuming half of the split Legislatures have Democratic Senates) puts it at 62.
And, Danq, a Constitutional amendment 100 years ago IS consent by politicians today. The government is a single, continuous entity, with constantly changing members. The only two ways to stop consenting to a Constitutional amendment are to either change the Constitution or go to another country.
EgoNemo| 1.26.11 @ 9:38AM
The column is so rife with errors of fact and logic that it would waste good, productive time to identify them all.
Suffice to say just one thing:
If the author had actually read the Constitution of the United States he would have read that to amend the Constitution, that state legislatures, or states gathered in state conventions, are needed to amend the Constitution. The very state legislatures that the author claims were victimized by the direct election of senators THEMSELVES VOTED TO FOR THE AMENDMENT ALLOW DIRECT ELECTION OF SENATORS. If the system worked as our author claimed, then why the did these same state legislatures vote for direct election of senators? The answer is simple -- the indirect process was corrupt to the core, and senators were accountable to no voter.
2.
Christian Louboutin | 6.23.11 @ 4:08AM
The elections this past November were truly historic for those who love freedom. The Tea Party, a grassroots libertarian insurgency cobbled together from disaffected Republicans and libertarians, managed not only to strike fear into the
Adidas | 8.11.11 @ 6:05AM
is good
Maximus| 2.17.12 @ 8:29PM
Is it really so complicated? Was not the Constitution written to prevent the OVER-growth of the US Govt? Your real concern should be the fact the you're born into debt or US slavery, via your Birth Certificate (US Wherehouse BOND) The Govt borrows against us every year! Wake UP!
العاب بنات | 4.10.12 @ 12:32PM
Wow. You must be reading a different article than the one I'm seeing at the top of this page. The judge merely said that "IF the Constitution we cherish were still in its original form with respect to the Senate, they would never have been able to vote for Rand Paul