Paul C. Hansen
Daily Paul
The U.S Constitution
"originally" laid out the separation of powers
between the federal government and the State governments in the first paragraph
of article 1 section 3. How this paragraph accomplished that goal will become
clear later in this article. This paragraph states:
"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."
Then in Article I, section 4 we also find this:
"The
Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the PLACES of chusing Senators."
Those places were to be in the State Legislatures.
This balance of power was then
permanently locked in by the last clause of article 5. I call this clause the
magic bullet because it can't be stopped by any means that I can see. Article 5
dealing with amendments to the Constitution clearly states:
"...
and that NO State, without its consent, shall be deprived of its
equal Suffrage in the Senate."
By including this in the section dealing with
amendments, it is obvious that the sections of the Constitution concerning
selection of Senators and the suffrage they provided was not amendable unless
ALL of States consented and that this was to be a permanent provision. All of
the above shows how adamant the founders were about this point by referring to
the States representation on no less than 3 occasions.
If even ONE State objected to
changes in an area that would affect their suffrage, that change would be
invalid. The normal ratification process could not be used to alter this
principle. Yet that is exactly what happened when the 17th amendment was
adopted.
The father of our Constitution,
James Madison, in Federalist 43, further supports this claim. He states that
the Constitution was completely amendable with two exceptions only. One of the
exceptions dealt with the importation of slaves and became moot after 1808. The other was the State's equal suffrage
in the Senate.
It appears, then, that this all
boils down to definition. What is
the definition of State suffrage? In Federalist 59, Hamilton explains State
suffrage as the State legislatures having a voice in the Senate. The 17th
amendment effectively canceled that voice and turned it over to the citizens of
the States. I submit to you that now, however, this definition has been left
entirely to the discretion of the States themselves. The courts have no say in
the matter. I will explain this bold statement in detail later. Why do I feel
this issue vitally important to restoring States rights? For the same reasons
our Founders did, to support the concept of federalism and the balance of power
between the States and federal government.
This concept strictly limited
the federal governments powers to those specifically enumerated in Article 1,
Section 8 of the U.S. Constitution. The People, through the Constitution,
permitted the national government to exercise certain enumerated powers. By limiting
the federal government's power and granting the States nearly unlimited power,
the federal government would merely be protecting the States collectively and allowing
the States to handle their own affairs.
Federalism allowed the States
wide latitude to run their own affairs and by doing so, created 13 laboratories
of freedom to experiment and formulate the best system of self-governance. This
situation also created an atmosphere of competition between the States. When a
State allowed its inhabitants to prosper and keep what they earn, The State
would prosper and be allowed to continue governing its people. When the State
government became a burden to them, the people could vote out the tyrants
during the next election. Another
alternative was for the businesses and the people to move to a State that was
more to their liking. Business
leaving the State would cause the tax base to erode and so would the peoples support
of that government. Sooner or later, either the State government or the people
would wake up and correct the problem.
The 17th amendment took away the
States protection from the abuses of federal power allowing the federal
government to get away with legislating in areas where they had no business
doing so. This was a grave error seriously upsetting the balance of power so
carefully crafted into our magnificent Constitution. The concept of Federalism
was all but destroyed leading to endless abuses by the federal government from
which there is no escape.
The enforcement mechanism
against federal encroachment and the 10th amendment prior to the invalid 17th
was the States' representation in the Senate. The "Peoples House"
i.e. the House of Representatives amply represents the people, while the States
were to be represented by the Senate.
The States now have no
representation and we are experiencing the folly of this venture toward pure
democracy today. We were founded as a Republic not a democracy and now we see
why. All the States needed to do in the past was to recall or direct their
Senators before a bad law made it to the floor of the Senate for a vote and the
damage could be stopped in its tracks. Hamilton's Federalist essay 59 addresses
this issue directly. This power has been unconstitutionally snatched from the
States by the invalid 17th amendment.
Careful study of the 17th
amendments ratification reveals at least 10 states or more that failed to do
so. These were 10 that failed to "consent" FL, MS, DE, KY, UT, MD,
RI, AL, IA and GA. The clear manner in which article 5 is written places the
statement dealing with States equal suffrage in the Senate after the words:
"Provided that no Amendment which may be made..." further showing that
this was an exception to the rule regarding amendments.
With the failure those of 10
states to ratify the 17th, they were
denied their equal suffrage in the Senate without their consent in
violation of Article 5, thus making the 17th amendment invalid.
However, once any state declares the 17th invalid, based on what
I have pointed out here, that State, even though it had previously
consented to the 17th can withdraw its consent anytime it so chooses. Any State that previously consented can
say "we no longer consent" because Article 5 mentions nary a word
about the permanence of any such consent. The right of the state to withdraw that consent is further
fully supported by the clear wording of the 10th amendment:
AMENDMENT X (1791)
"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."
The power to withdraw that
consent is not prohibited by article 5
so the power to withdraw it is reserved and retained by the States. Fits like a
glove. All the states need to do is select their Senators in their legislatures
and send them to Washington. Simple. And what would the courts say about move
such as this? No court can attempt to make the State comply with the 17th because
they won't have jurisdiction to try the case. Here's why:
When a sovereign State declares
the 17th amendment invalid through an article 5 challenge, the Senate would be
unlawfully seated. It would then follow that the Supreme Court is also unlawfully
seated as is the entire federal bench because the Senate approves those federal
court appointments including the Supreme Court. Anything decided by those federal courts would be
null and void. The State could simply refuse to recognize the jurisdiction of
the court system. The States could argue that the federal judiciary has been
confirmed by a Senate that did not have the states best interest at heart.
These judges would also have a conflict of interest for which there is no
resolution. They would be more reluctant to decide in favor of an article V
challenge due to the fact they would be "deciding" themselves off the
bench and out of a job.
The only other argument that
could be made against the State would be the power of the Senate to be the
ultimate judge of their elections and refuse to seat the Senators. However, how
can an illegitimate Senate make such a decision? The answer is, they can't.
I have presented these facts in
many forums over the years and they have never been successfully challenged.
One argument that always seems to arise is this: "Well, all the states do
have equal suffrage because they still each have two senators." This
invalid argument comes from a lack of full understanding of what
"suffrage" really stands for and by a focus on the first term
"equal" while ignoring the second, "suffrage." The point of
my entire article is that the States (meaning the State Legislatures) are the
ones who have lost suffrage. The people of the State now elect Senators and are
in possession of that suffrage. The real point is who do these senators now
represent? After I make this point, I usually get this: "Well, the people
ARE the "State." This is not entirely accurate either. In all
instances I can find in the Constitution where it is speaking about the States,
it is speaking of the Legislature of the States. The best example I can find
that clearly delineates between the two is the last clause of that wonderful
10th Amendment again. That clause clearly lists the "People" and the
"States" as two separate entities. If they were the same thing, there
would be no need to list them both in the very same sentence.
There are other far-reaching
implications of an invalid 17th and I'm
sure that opponents of what's been written here will use them to fight these
truths. I will not give them ammunition by detailing what those far reaching
implications are. However, I will say this: If we endeavor to rid ourselves of
the invalid 17th amendment in the manner outlined above, be prepared for the
fight of your lives because there are many entrenched interests that would like
nothing more than to never have this information reach the light of day.
There have been many articles
written concerning the "repeal" of the 17th amendment. While many of
these articles correctly point out the folly of the 17th, they fail to realize
that a movement to repeal is nothing more than a pipe dream. The only way to
remove the 17th amendment is through outright repudiation using the method I
have described above. My next paragraph explains why.
There are 2 methods laid out in
Article 5 for amending the
Constitution. One of those methods is through a Convention of the
States. I will not go into details as to why this method should never be used
under any circumstances other than to say that if you truly value your
freedoms, this method should be avoided at all costs. The other method would be
an exercise in futility. To use the method that nearly all the other amendments
have used since the 10th would entail having to first convince 67 senators to
vote themselves out of a job. Then 290 House members would have to vote for the
repeal of an amendment which will make all the laws they want to pass much more
difficult to push through the Senate. A senate which as a result of its passage
would now be jealously guarding the rights of the States that the House laws
frequently trample. If that isn't enough, you need to get 38 state legislatures
to vote for repealing an amendment over the objections of the people who would
feel like their right to vote was being stolen (a right which never really
existed due to an invalid 17th). To educate the masses in 38 separate states
that the 17th amendment was a mistake is an insurmountable task. To do it for
just one, as would be the case in a move to repudiate it, Maybe. In a
repudiation argument, it could be demonstrated to the people that the right to
vote for their Senators should have never been theirs in the first place due to
the fraudulent manner in which the 17th was adopted.
My first target for a move to
repudiate would be done in a State that swings to the right most of the time
and where the voters are well informed and leery of the feds. Utah would be my
choice since Utah rejected the 17th outright and they have been stung recently
by federal land grabs. Please join me in this endeavor to repudiate the 17th
and get the concept of federalism firmly back on track.
We must educate ourselves and
our posterity in the wonderful documents that founded our great Republic if we
are ever to set it back on course toward freedom and prosperity. That is why
I'm writing this today. My positions on the 17th amendment are supported by the
Constitution of the United States including the 10th amendment and "The
Federalist Papers", specifically Madison 43 and Hamilton 59.
Thanks for your attention,
Sincerely,
Paul C. Hanson
Here is a link to where the article permanently
resides:
And here is a link to a supreme court case that
actually, as part of the majority opinion, stated that there were 2 exceptions
to amending the Constitution and the election of senators was one of them. The
case is Dillon V. Gloss. Although the case isn't directly on point, the court
did state there were exceptions to the amendment process. Link:
Scroll down to sections [Page 256 U.S. 368, 373]
and [Page 256 U.S. 368, 374].
Here is the pertinent wording:
"An examination of article 5 discloses that it
is intended to invest Congress with a wide range of power in proposing
amendments. Passing a provision long since expired,8 it subjects this power to
only two restrictions: one that the proposal shall have the approval of
two-thirds of both houses, and the other excluding any amendment which will
deprive any state, without [Page 256 U.S. 368, 374]
its consent, of its equal suffrage in the Senate."
The words "Passing a provision that has long
since expired" (and spoken of in footnote 8) refers to sections of the
constitution that dealt with the importation of slaves and direct taxes, and
since it only held true until 1808, it had "long since expired" But,
in the decision itself, it did not apply that year to the restriction on
suffrage in the Senate. To the contrary, it said that restriction was still in
force.
Again, Thanks for your time and attention
Paul.
