Freedom Watch

Is Any Part of the Constitution Unconstitutional?

The short answer to the above question is: Yes.

By From the December 2010 - January 2011 issue

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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. 

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About the Author

Andrew P. Napolitano, the Senior Judicial Analyst for Fox News, hosts "FreedomWatch" at 8PM Eastern daily on the Fox Business Network. His sixth book, It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom, will be available in April.