Why It’s Crucial to Repeal the 17th Amendment | Eastern North Carolina Now

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

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

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


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

    Federalism -

    Federalism is our strongest and most effective form of "Check and Balance." Federalism is a system of government in which the same territory is controlled by two levels of government. It is often referred to as our system of "dual sovereignty." Our Founding Fathers designed a government which is predicated on the division of political power between the national or federal government and the individual States. Technically, it was the sovereign States that surrendered a limited number of their sovereign powers to the federal government to exercise for their mutual benefit, while retaining most of them. The Constitution clearly reflects this by its express enumeration of powers delegated to the new government it created as well as by the addition of the Tenth Amendment (a remnant of the Articles of Confederation), which restates the principal of federalism. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People." James Madison went on to explain this division in his essay The Federalist No. 45:

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


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

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

    Federalism is one of the most important and innovative concepts in the design of our American government system and in the drafting of the Constitution, although the word never appears there. In America, the states existed first and they struggled to create a national government that would not compromise their sovereignty. The US Constitution is "hardwired" with the tensions of that struggle, and in fact, the States demanded that the Tenth Amendment be added to remind the federal government and to remind the People that its powers are limited to the plain words and provisions in the Constitution and the remainder are reserved to the States. (The language of the Tenth Amendment is extremely similar to Article II of the Articles of Confederation). The Tenth Amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It emphasizes that the inclusion of a Bill of Rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone's rights, but whether it exceeds the national government's enumerated powers.

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

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

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

    Nullification -

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

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


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

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

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

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

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

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

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

    Author Thomas DeLorenzo explains the situation very well in his article "Is the Lunatic Left is Getting Desperate":


    The founding fathers intended that state legislatures would appoint senators and then instruct them on how to vote in Congress. This was to safeguard against the corruption of senators by special interests. The ability of state legislatures to instruct senators was mentioned frequently during the Constitutional Convention and the state ratifying conventions and was always assumed to exist.