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.
The concept of federalism 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 for the 10th amendment and against federal encroachment 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 one of those states declares the 17th invalid, based on what I have pointed out here, any other 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:
"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 more easily demonstrated to the people of just 1 state 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,
Paul C. Hanson