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

    At the New York ratifying convention John Jay, one of the three authors of The Federalist Papers, said that the Senate is to be composed of men appointed by the state legislatures.... "I presume they will also instruct them, that there will be a constant correspondence between the senators and the state executives." At the Massachusetts ratifying convention, Fisher Ames referred to U.S. senators as ambassadors of the states. James Madison wrote in Federalist No. 45 that because of this system the U.S. Senate would be disinclined to invade the rights of the individual States, or the prerogatives of their governments. This was an important element of the whole system of states' rights or federalism that was created by our founders. Madison wrote in Federalist No. 62 that the system gave to state governments such an agency in the formation of the federal government as must secure the authority of the former. It helped establish the fact that the citizens of the states were sovereign and the masters, not the servants, of their own government.

    The legislative appointment of U.S. senators was responsible for the most famous declarations of the States' Rights philosophy of our most influential Founders, Thomas Jefferson and James Madison. Jefferson articulated the doctrine of Nullification in the Kentucky Resolutions of 1798 and then the Kentucky Resolutions of 1799, and Madison articulated the doctrine of Interposition in his Virginia Resolutions of 1798 and then his Report of 1800. These Resolutions were used as part of the Kentucky and Virginia legislatures' instructions to their senators to vote to repeal the offensive and unconstitutional Sedition Act, which effectively prohibited free political speech.

    John Quincy Adams resigned from the Senate in 1809 because he disagreed with the Massachusetts state legislature's instructions to him to oppose President James Madison's trade embargo. Senator David Stone of North Carolina resigned in 1814 after his state legislature disapproved of his collaboration with the New England Federalists on several legislative issues. Senator Peleg Sprague of Maine resigned in 1835 after opposing his state legislatures' instructions to oppose the rechartering of the Second Bank of the United States. When the U.S. Senate censured President Andrew Jackson for having vetoed the rechartering of the Bank, seven U.S. Senators resigned rather than carry out their state legislatures' instructions to vote to have Jackson's censure expunged. One of them was Senator John Tyler of Virginia, who would become President of the United States in 1841.

    In other words, the original system of state legislative appointment of U.S. Senators did exactly what it was designed to do - limit the tyrannical proclivities of the central government. The Senate played an active role in preserving the sovereignty and independent sphere of action of state governments in the pre-Seventeenth Amendment era prior to 1913. Rather than delegating lawmaking authority to Washington, state legislators insisted on keeping authority close to home, as our Founding Fathers intended. As a result, the long-term size of the federal government remained fairly stable and relatively small during the pre-Seventeenth-Amendment era.

    Compare that to the size and scope of the federal government today.

    Some Examples -

    Let's look at some specific cases where the US Senate as intended by our Founding Fathers would have rescued Americans from federal over-reach.

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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

    The statute 18 U.S.C. 924 contains a "Penalties" provision - 18 U.S.C. 924 (c)(1)(A):

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

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

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

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