Saturday, January 16, 2010

The impact of the 10th and 17th Amendments

The 10th Amendment to the U.S. Constitution states:

"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."

A 1931 Supreme Court Case (United States v. Sprague, 282 U.S. 716, 733) stated:

"The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.”

Today, the federal government exceeds this restriction, or basically ignores it (along with many other facets of the Constitution) on a regular basis - in fact and in philosophy.

Over the years, the feds have used what is called 'greenmail' in this effort.

Originally, according to Wikipedia, the term meant the "practice of purchasing enough shares in a firm to threaten a takeover and thereby forcing the target firm to buy those shares back at a premium in order to suspend the takeover."

Today the term is also used to describe the process whereby the federal government uses the distribution of tax dollars - or the withholding of those dollars - to force states to adhere to certain rules, laws or actions in order to 'earn' the funds.

Basically, it's the thought that if I'm giving you money, then I get to make the rules. If I (that is the federal government) give you (the state) money for roads, I can put conditions on those funds (like what your maximum speed limit in the state will be). If you don't like the conditions, you don't have to take the money.

But, you say, it was my money to begin with that you took from me under penalty of imprisonment! Well, that's a minor point, the feds say, "we need the money more than you do."

But, you continue, if you didn't take my money to begin with, I wouldn't 'need' it back to fund all these things you're paying for...

Aye, there's the rub.

Which brings me back to the 10th Amendment. Our founding fathers believed that decisions were best made in the states - the 'local experiments' where policies, programs, and even laws, could be tried before being adopted nation-wide by other states (never by the federal government). They believed - and rightly so - that a limited federal government was the best thing for the future prosperity and freedom of the country and the individuals in it. They'd lived under strong centralized governments and knew their failures. That's why they consciously and purposefully set up our country the way they did.

James Madison said:

Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?

The 10th Amendment was important not because it changed anything in the Constitution, but because it reinforced the positions and discussions that led to the organization described in the Constitution. It's there as further evidence - and promise - that the federal government would remain limited and small and that the states would continue to have not only an equal part in the national government but also the larger role in the lives of their residents.

Sadly, we're too far gone from those original intents and the limitations on the federal government are ignored, while questions to those sworn to uphold those limitations are dismissed as being 'not serious.'

And that's where the 17th Amendment comes into play.

Article 1, Section 3, Clause 1, of the Constitution 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.

While the House of Representatives were elected directly by the people - and thus 'loyal' to the interests of their districts, the Senate was to be selected by the state legislatures and 'loyal' to the states.

This ensured that the interests of both the individual and the states, an equal partner in the governance of the nation as Madison described, were balanced. It also provided a check against the penchant for the federal government to expand beyond its scope.

It the senators had, as their first priority, the overall interests of the states that sent them to Washington, they would not (hopefully) allow the federal government to exceed its limited powers and overrun the concept of the 10th Amendment.

However, with the passage of the 17th Amendment, all that changed.

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.

How often has a state senator asked your opinion about a measure pending before them? I know you've probably offered such opinions on a regular basis. But it doesn't make sense for Ohio's two senators to try and get feedback from the nearly 11.5 million people who live in this state (according to July 2008 Census figures).

It does make sense, however, for them to consult with our state house and senate about the impact of bills that come before them for a vote.

Think about it. Right now, they're more likely to confer with lobbyists and special interests than they are with their constituents or their state legislators. As a result, the interests of the state no longer provide a balance to the power of the federal government and the federal government commonly issues mandates to the states requiring all sorts of things our founders would find egregious.

The direct election of senators eliminated the check and balance designed to restrict the federal government from exactly such action.

An examination of the health insurance mandate currently before Congress is a prime example. Sen. Ben Nelson, responding, he said, to concerns about the mandates against states included in the bill, got an exemption from paying for those mandates for the state of Nebraska. It was even labeled the 'cornhusker kick-back,' though now he's saying he never intended for Nebraska to be singled out - that all states should have the same consideration.

Consider this: how successful do you think the Senate health care bill would have been if every senator said 'no' to the federal government's dictate - or insisted that any mandate enforced upon them be funded by the feds?

Or go a step further and consider if the state legislatures told 'their' representatives in Congress to stop taking so much money from the state in the first place? With states in financial troubles, I'm sure the state legislators think they can spend the limited dollars much better than bureaucrats in Washington - much like the average American thinks.

If the senators were accountable directly to the state legislatures, think about how different their positions and votes might be.

And it's not just the health care bill. The No Child Left Behind Act - in fact the entire Department of Education - is a direct violation of a state's right to control education.

The 2010 budget for the U.S. Department of Education is nearly $47 billion. Just for discussion purposes, if you divide that by the 50 states, each one would get $940 million. How much better than the federal government do you think Ohio would do at spending $94 million on education?

Would we even have a federal department of education if we hadn't passed the 17th Amendment?

How much different would our federal government - and state governments - be if we hadn't eliminated the check and balance on the federal government? And how much more adherence do you think there would be to the 10th Amendment?

For more information on the 10th Amendment and efforts to exert authority under it, please visit the 10th Amendment Center.

For more information on the impact of the 17th Amendment, please visit The Campaign to Restore Federalism.


DeeDee Liedel said...

Maggie - I have long believed that the 17th Amendment should be repealed and the popular election of our Senators should cease. We need people in DC who are looking out for the rights and bests interests of the individual states, not currying favor with voters to keep their elected position. Thanks for posting this.

Tim Higgins said...


The argument has been going on between the Jeffersonians and the Hamiltonians since this country was founded. Unfortunately, the Hamiltonians seem to have the upper hand in recent history.

You rightly tie the 17th and 10th Amendments together; as with the passage of the 17th, one of the last defenses of states' rights was dismantled in the name of democracy.

Far too few in this country knew or remember that Senators were not always elected by a popular vote. Far fewer understand the protection afforded by the Constitution by enforcing states' rights. Thanks for the education and summation of the principles involved.

Jim said...

Thanks for the clear cut explanation. The triple play of the 16th & 17th amendment along with the Fed. Reserve act have squarely placed the control of the country beyond the reach of "the people" but most of us never even realize it.

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