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Repeal of the Seventeenth Amendment:
A Step Toward the Restoration of Federalism in America
by Virginia M. McInerney
The form of government instituted in the United States has been extolled throughout history by natives and foreigners alike. John Adams said: “What other form of government, indeed, can so well deserve our esteem and love?”1 In his Farewell Address, Andrew Jackson stated that “our country has improved and is flourishing beyond any former example in the history of nations.”2 The well-known French scholar, DeTocqueville, and English commoner, Gladstone, have issued equally notable praises.3
The United States Constitution which defines this remarkable form of government, is built upon certain enduring principles. These principles are espoused in the Declaration of Independence and the Framers gave them form in the United States Constitution.4 Speaking of these immutable principles, Thomas Jefferson said:
These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.5
As with all governments, it becomes necessary, from time to time, to reacquaint ourselves with its basic mechanics of operation. The Founding Fathers gave posterity a written constitution to aid in this process.6 When there are doubts as to its meaning, one must study its original intent to discern proper application, for “the intent of the Lawgiver is the Law.”7
Current events in this nation have provoked citizens and scholars to perform this assessment — to “retrace our steps” — in yet another area: the principle of federalism. Simply defined, federalism is
a system that combines States retaining sovereignty within a certain sphere with a central body possessing sovereignty within another sphere, and a third sphere where concurrent jurisdiction (exists].8
After years of silence on the matter, a resurgence of interest in federalism is evident. President Reagan’s “New Federalism,” “The Federalist Society,” and a report on federalism issued by the Domestic Policy Council9 are just some of the manifestations of this increasing concern.
The reason for this interest is that America is reaping the fruit of centralized government. Contrary to the Founding Fathers’ original vision of separate spheres of jurisdiction between the people, the states, and national government, our current system is now dominated by the national government.
The United States Constitution, as drafted by the Founding Fathers, clearly enumerated the limited powers of the national government. All other powers were reserved to the states or the people. The 10th Amendment affirms this noting:
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 separate spheres of jurisdiction of the national and state governments have gradually been eroded. The national government has increasingly usurped the reserved power of both the people and the states. It has been documented that
States, once the hub of political activity and the .very source of our political tradition, have been reduced — in significant part — to administrative units of the national government ….10
As a result of this erosion process, both the national government and the state governments are crippled in their effectiveness. The national government, having taken on too much power, is unable to properly administer all the areas it has arrogated unto itself. On the other hand, the state governments are impotent in legislating and executing the will of the people because they are subject to unpredictable subjugation by the national government.
Our founding document, the Declaration of Independence, proclaims as self evident the proposition that “all men are … endowed by their Creator with certain unalienable rights,” and that “to secure these rights, governments are instituted among men.” When state governments so instituted become impotent, then it is their right and duty to reacquire the appropriate power in order to fulfill the purpose for which they were originally established.
In order to assist state governments in this task, this thesis will analyze Article I, Section 3 of the United States Constitution and the Seventeenth Amendment which modified it. Article I, Section 3 was designed to protect the exercise of a state’s constitutionally reserved power against anticipated national encroachment by requiring Senators to be appointed by the legislatures of their respective states.11 This method of election was changed in 1913 by the ratification of the Seventeenth Amendment.12 That Amendment called for direct election of United States Senators by popular vote of the citizens of the respective states. This modification has materially weakened the voice of the states as states within the national government and contributed to their present condition of national subjugation. Subsequent to an examination of these provisions, remedies will be proposed to assist the states in regaining their constitutional place in our federal system of government.
* Copyright © 1987 Virginia M. McInerney. Used with permission.
1. John Adams. “Inaugural Address.” published in James D. Richardson, ed., A Compilation of the Messages of the Presidents, 1789-1897, 20 vols. (New York: Bureau of National Literature, Inc., 1897), 1:219.
2. Andrew Jackson, “Farewell Address,” published in Ibid., 4:1512.
3. William Gladstone said that “the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.” Quoted in James Beck, The Constitution of the United States, with a Preface by The Earl of Balfour (New York: George H. Doran Co., 1922), p. 29. Alexis DeTocqueville was so impressed with the governmental systems in America that he wrote a two volume work entitled Democracy in America to explain its workings and praiseworthy attributes.
4. Those principles were given form in various state constitutions as well, particularly after the Resolution of May 15, 1776. Issued just prior to the Declaration, it urged the colonies to form separate governments for the exercise of civil authority within each colony. This was because the colonies were no longer ruled by the crown, being in a state of war with the same. Many of the men who helped formulate these early constitutio n were instrumental in issuing the Declaration of Independence, and later, the United States Constitution.
5. Thomas Jefferson, “First Inaugural Address,” published in Richardson, 1:312.
6. For a discussion on the significance of a written constitution, see: Edwin Meece, Address before The Federalist Society, 30 January 1987, Washington, D.C., pp. 5-15, (Typewritten). Explains the significance of a written constitution.
7. Abraham Lincoln, “First Inaugural Address,” published in Richardson, 7:3207. See-also, Ibid. for a discussion on original intent.
8. U.S., Domestic Policy Council, Working Group on Federalism, The – Status of Federalism in America, (November, 1986), p. 8. See – also James Madison, The Federalist-Papers No. 45, with Introduction by Clinton Rossiter (New York: New American Library, 1961; reprint ed.. McLean edition, 1788), pp. 292-293.
9. President Reagan issued a “Statement on Federalism Principles” on April 8, 1986. During his administration, he has endeavored to reinstitute some of these principles within the national government structure. His plan, referred to as “New Federalism” incorporates federal budget cuts on domestic programs and the redirecting of federal programs such as education, housing, and transportation to state and local levels. Robert Beneson, “Federalism Under Reagan,” Editorial Research. Reports 1 (24 May 1985):379-384. It can be considered a compromising strategy to restore constitutional federalism.
The Executive Office is involved in a “Working Group on Federalism” established in 1985 by the Domestic Policy Council. This group consists of representatives from nine agencies and the White House. Their purpose is to develop a strategy to reinstill “basic constitutional federalism principles” into federal law and regulations. See, Working Group on Federalism, title page. In November of 1986, the Working Group on Federalism published a comprehensive report on the contemporary status of federalism in America.
The Federalist Society was founded in April, 1982, by a group of law students from Yale, Harvard, Stanford, and the University of Chicago. It is now comprised of lawyers and law and public policy students and faculty who desire to work toward the restoration of the rule of law and corresponding traditional values in American society.
10. Working Group on Federalism, p. 2.
11. Art. I, Sec. 3 of the United States Constitution reads in part as follows:
- 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.
12. The Seventeenth Amendment of the United States Constitution reads as follows:
- The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
- When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
- This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.