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Repealing the 17th Amendment
By Greg Lee October 13, 2003

When we consider the potential for governmental abuse, many aspects can be cited. The aspects are also perceived differently when personal political spectrum is an additional filter through which people view governmental action. What is viewed, as an extreme example of abuse by the government from a person with very progressive political views will be seen as sound governmental policy by a more conservative person. What makes governmental abuse so problematic is this very divergence about what meets the criteria for being an abuse.

In the case of the United States, two fundamental legal traits help define governmental action. The first is that of the practicable implementation of English Common Law precedential review. In this manner, governmental action is limited by the progression of legal principle as time has passed. No judicial extremes are likely since precedent serves as moderation upon governmental action. The government is actually forced to apply previous standards and practices to its inherent rights when it attempts to apply legal foundations for non-explicit rights. It is often the progression of precedence that ultimately prevents or curtails the government's ability to enforce non-explicit rights.

Further limitations upon the government are found in the second fundamental legal trait that defines governmental action. The Constitution and The Bill of Rights combine with the other amendments to the Constitution to reserve explicitly most governmental power to the individual States of the republic. In this manner, Federal authority is limited specifically so those great changes in republican policy must be the result of either amendments to the Constitution or a reconvened Constitutional Convention of the several States. In this manner, enough inherent rights have been granted to the Federal government to enable it to function effectively while still allowing for the inherent retention of all power not enumerated explicitly to the several States as being prime. The federal government thus may attempt to expand its powers but it is forced to do so by appeal to the explicit rights enumerated to it. In cases where such rights are not explicitly enumerated it must resort either to Executive Order or to Congressional Law that is subject to judicial review. Even if the Federal government employs such a strategy, no laws are ultimately immune to resistance by the several States because of the ability to amend the Constitution or reconvene the Constitutional Assembly.

The problem with the diad of foundation on the United States government application of power is that there are many areas of ill-defined scope and needs. While exclusive right to a free press is guaranteed constitutionally, how does English Common Law affect such a right? Is slander protected? This is where the idea of precedential law was developed into a new type of precedential review. The idea that the Constitution is a living document with fundamental character and principles that are adaptable by judicial interpretation has allowed the pre-existent practice of Common Law to become a changeable system of modifiable standards which does not require the Constitution to be explicitly changed when subjected to judicial review. In this way issues such as equal protection of rights has been defined at each stage of the country's development by interpreting who is qualified as a protected party, not by explicit enumeration to members of a class or group through amendment. By applying contemporary interpretation to legal principles, the Constitution has not had to be fundamentally altered as the role of government has changed.

Interpreting the Constitution has largely been the responsibility of the judicial branch of the government. The actual basis of this review rests upon the early judicial branch practicing a policy of selective review. It allowed issues of legal status to be decided outside the normal considerations of partisan politics and timetables. The very refusal of the Supreme Court to review cases where it had direct explicit right to decide such issues insulated the Constitution from convenient changes based upon Congressional or Executive whim. Further interpretation was augmented by the authorship of the Federalist Papers that acted as a sort of appendix to the Constitution, which supplied the intentions of the authors.

The current political landscape is not fundamentally different from any other period of our governmental development. We still have precedential review and the principle of Constitutional interpretation and amendment. However there is a current problem as related to the ability of the several States to be able to enforce their reserved rights. There has been no sudden change or amending of the Constitution, which has resulted in the eroding of the States' rights. What has happened is that the relative importance and utility of the several States individually have been eclipsed by the concentration of governmental power and authority at the Federal level. This has largely been due to the inability of the States to fulfill their intended role when compared to the constraints of modern governmental norms and the necessity of many traditionally state-centric rights being usurped because of more convenient applications of those rights at the Federal level. When the States seek relief from this trend in federal action at the judicial level, their efforts are failing.

For example, the Federal government is explicitly granted the right to regulate trade between the several states. While initially this was intended to prevent barriers to federal commerce across state lines, and allow the Federal government to protect international trade, it has become a de facto administration of nation wide standards and systems that remove individual choices for the several States. No state has the financial ability to dictate and control its own internal transportation infrastructure. Even allied regional systems are beyond the administrative abilities of the several States. What has happened is that the states allow federal taxation and redistribution of taxes to act as convenient agents for standardization, construction, implementation, and administration. In a sense, the current practice has been for the Federal government to determine policy goals and the several States provide the funding in exchange for not having to provide policy implementation on the state level independently of the other several States. When states challenge the existence of un-funded mandates the judiciary has usually turned down their appeals.

It has been through the agency of treating the reserved rights of the several States as a simple monetary exchange that has brought current possible governmental abuse to a higher potential. Instead of independently determining specific governmental roles, the several States have enacted a de facto policy of relinquishing most of their enumerated and reserved rights to have them administered and implemented by the Federal government. This alone is not a bad exchange. The states do have the right to release independently themselves from federal administration. They can simply choose to ignore meeting a federal mandate and implement policy on their own if it is compatible with the Federal Constitution. The only drawback to this strategy is the loss of federal funding in spite of any outflow of funds from the state through taxation. The potential exists for a state to have already released its funding through taxes to the Federal government, choose not to meet a federal mandate, and be required additionally to tax its citizens to meet its self created mandate.

The potential for governmental abuse of power is thus based upon the states having placed themselves in the position of being unable to exercise their enumerated rights because they have adopted a governmental system which requires them to fund other states along with self funding their own internal programs. The net effect is that the several States now find themselves attempting to have the same amount of economic inflow from the federal level when compared to the outflow. The Federal government has countered this by adopting a policy known as the unfunded mandate. The Federal government still receives the outflow of taxes, and still sets general policy and program goals, but requires the states to create independent funding for these programs without additional federal funding.

The desire of the states to have federal funds to enable implementation of enumerated rights reserved for the states has created a system where federal congressional control of distribution has become the focus of the congressional representative. This had lead to the development of political parties, which are based no longer upon differing political principles but upon differences in distribution of federal funds.

The origins of breakdown in political differences can be traced to the Great Society and War on Poverty programs. Unlike the programs of the Great Depression that were implemented during times of economic austerity, these two programs were implemented during times of aggressive economic growth. The theory behind these two programs was that if the Federal government was allowed greater control over the economic activities that effected the lower classes, the lower classes would see a substantial growth in economic activity while relieving states of the responsibility to these classes.

The problem with this strategy was that the programs were incredibly ineffectual. The rates in poverty did not decline but only became worse. Chief indicators of economic activity such as stability of the family unit, employment, education, housing ownership, and personal income all degraded in the lower classes that were supposedly being helped by the disbursement. Instead of discontinuation, Congress instead chooses to develop ever more complex implementations of programs and increased funding. When considering the potentiality of discontinuation, the states were faced with the fact that the funding of these programs would be withdrawn leaving urbanized and rural states equally unable to support the now dependent lower classes. Considering this, states began to demand their congressional delegations to seek aggressively as much federal funding as possible.

The political parties which had previously represented divergent political theories about economic policy now found themselves having to exchange political theory for the need to secure economic funding from federal sources. The irony is that most states would have been able to self-fund and administer internal programs more cheaply than if they continued reliance upon federal funds. Congressional success was no longer based upon adherence to political philosophy but instead upon how successful a politician was at retrieving more money from the federal coffers than his home state sent to Washington D. C. Party affiliation became dependent upon economic success in bringing home the bacon and not upon how effectively a politician implemented a party platform. Whether Republican or Democrat, what now mattered more was your ability to achieve pork. The major source of party support was no longer dependent on political philosophy, but economic support based on federal funding. As long as a state political party continued to deliver the federal funding, their political support went largely unchallenged.

Considering this new political reality, states and political parties found themselves in difficult situations. States had allowed their rights to become subservient to federal economic funding. Political parties had allowed their principles to become dependent upon delivering federal funding back to their home districts. The irony is that the Federal government was the least efficient way to distribute funding based upon the results achieved and the administrative costs involved. However breaking away from the federal cycle has thus far proved nearly impossible. Apart from a tepid attempt to decentralize welfare in the late 1990's back to the state level, no serious attempt has been made to dismantle the failed social programs system at the federal level.

The strange alliance against dismantling of this system has been forged between some states and components that make up political parties. In the case of states, those states that currently receive more funding than they send out in taxes have allied with those states that have limited governmental administration resources. Urban states as New York would find it prohibitive to continue current social welfare programs because of the numbers of citizens who receive such costs. States such as Montana, which is largely rural and decentralized, would find themselves unable to foot the administrative costs associated with delivering benefits to the relatively few recipients in the state. While both would have funding problems for differing reasons, neither type of state could afford to continue the federal style social programs as they now exist under federal control.

For political parties dismantling of the current social welfare system would jeopardize political support. In the case of the Democrat Party, the lower class urbanized poor supporters would likely decline political support if all federalized programs resolved back to state control. Likewise, the Republican Party would lose support of its large base of retired elderly voters who depend upon programs such as Social Security and Medicare. In principle, the Republicans stand for fiscally conservative programs and limited governmental control. The Democrats stand for socially responsible policy and aggressive support for individual rights. Instead both parties find themselves continuing a policy of unlimited governmental program growth and a diminution of personal rights based upon ever increasing mandated entitlements. It is neither fiscally conservative nor socially responsible in the long term because eventually funding will become impossible and result in entitlements being discontinued.

The abuse of the States enumerated rights is evident in this Catch-22 situation. While most states could individually create more efficient programs, they cannot because the funding for these programs is already in the federal de facto control. The political parties both stand against such control in principle but upon different basis. The Democrats champions of individual rights should demand that no individual be taxed in a way that requires him to support people regardless of need. The Republicans should be demanding that it is fiscally irresponsible to create dependent classes of people out of otherwise economically capable people. The fact is that because of expediency under the current system it is easier to erode further States' rights and ignore political ideology in favor of aggressive retention of federal funding.

The ironic part is that while political affiliation used to be a defining attribute of political activity, it has ceased to be so. In almost all matters requiring congressional vote, the final deciding factor is usually economic gain. For example, consider the request by the military to be allowed to close military facilities. Beginning in the early 1980's, the military began to request that many facilities be closed for the simple reason that they were no longer needed. Various tactics for delay were often used. The key defining aspect of facility closure has usually been associated with the annual funding of facilities being shifted to the state where the facility was being closed. Instead of a cost saving to the Federal government, the Federal government no longer had use of a facility but still funded the state as if the facility was still functioning. In spite of the Federal government having the explicit and enumerated right to the determination of military policy, the States have infringed upon that determination by holding funding hostage.

Another classic example of federal funding involves the federally mandated speed limit, which was imposed during the Arab Oil embargoes of the 1970's. While the Federal Congress has the explicit enumerated right to regulate interstate commerce, it does not have the right to regulate intra state commerce. For western states, a 55 MPH speed limit was extremely onerous when the condition of travel upon state thoroughfares was considered. On state built and county built roads, it did not matter what the engineered travel capacity was for the road. It might be as straight as an arrow and level for hundreds of miles. The speed limit was limited artificially by the 55 MPH barrier. However, if a state chooses to raise the speed limit on its roads, federal funding for the Interstate system contained in the state would automatically be removed. The result would be a federal mandate that the state was responsible for without agency of federal funding. This was a clear abuse of a State's right to self regulate. It required several threatened lawsuits to compel Congress grudgingly to loosen the maximal speed limits.

The paradox of abuse is that the solution and cause are economic. If the States retained the right to develop, fund, and administer social programs most states would find that their overall tax burden would drop while retaining current performance. Instead, they allow their right to self-determination of government to be abused by adherence to the current system of federally mandated distribution. The solution to this problem is not likely to be found in either mainstream political party. For the same reason, both parties cannot afford to risk political power by reforming the current economics where the States willingly give up constitutional rights through economic policy. The benefits of abandoning such a system would be large.

The abuse of constitutional rights inherent in the current system should be an affront to both political parties. However, the individual citizen is often faced with a choice between maintaining the incumbent who brings home federal funding, or a challenger who claims he can bring home more funding. When faced with such a decision, where the only difference is in the potential economic return, political ideology is seldom a component. Often voter influence is determined by which campaign raises the most money. The logical choice for the voter is usually focused on the fact that the candidate who raises more money campaigning usually has more political contacts, which translate into political influence that enables federal funding of programs in the local district after the election. Other than the Democrats stand on abortion, or the Republican stand on prayer differences in ideology are usually irrelevant when it comes to election cycles. Even when candidates are examined on personal merit alone, most voters simply vote with their pocketbook.

The solution to many of the fiscal problems and failures of social programs as currently set up could be radically corrected by either political party if either party would vote on political principle instead of economic principle. Why should the Democrat Party continue to vote for social programs that have been declared disasters by the General Accounting Office? If they are not working should not they be demanding a socially responsible program that does work? Should not the Republican Party refuse ever-increasing funds to these programs based upon the principle that if trillions have been spent and nothing has improved, trillions more spending are not responsible? Should not both parties be championing the rights of States to support constitutionally and govern their citizens? Are we as a nation satisfied with these failed policies and comfortable with indistinct parties that ignore Constitutional abuse?

One possible root cause for this inability of either major party to act is the Seventeenth Amendment to the Constitution. This Amendment rewrote a key factor in how the States are represented. Before this amendment, election of Federal Senators was the responsibility of each States' government. In most cases, a senator was elected by members of the state's congress. While the people directly elected members to the United States House of Representative, the members of the United States Senate were beholden to only the congress of their home state. This is a crucial fact. A senator would hold power based upon how he upheld the rights of his state as a member of the republic. His ability to serve was not compromised by populist considerations insofar as political choices were made based not on how his home state's population wanted him to vote, but instead on what was good for the state as a member of the federal republic.

This freedom to vote against populist sentiment is what used to allow the members of the Senate to curtail the exuberance of the directly elected House of Representatives. As was intended by the authors of the Constitution, a member of the Senate could exercise statesman politics without fear of political expediency. A senator could vote against a budget, which eroded his home state's rights even if such a budget was supported by populist sentiment. A senator's longevity politically was based upon his ability to serve the whole state and not just because he was able to ingratiate himself to the populist demands of his home state. The problem with such an approach was that it was possible, and even probable, that a political party with a slim statewide majority could monopolize the party affiliation of both senators.

The Seventeenth Amendment did provide relief from this problem. It created the direct election of senators by popular vote. In states with divergent political polities, it became possible for senators from different parties to both hold office without regard to the party currently controlling the state government. A senator now could be elected by appealing to an agrarian polity and avoiding a metropolitan polity where he and his party were politically weak. The drawback to this was that political longevity for a senator was based on pleasing the polity that elected him and not always considering the ultimate rights of the state as a member of the republic. In short order, senators became just as beholden to their constituency as their lesser members of the House were.

The result has been that senators now have the luxury of their extended term with which to work in meeting the desires of their constituency instead of the needs of their state. A senator now finds himself just as committed to pork spending as a member of the House because if he does not bring back economic benefit to his home district, his district will not reelect him. A classic example of this was Senator Sam Nunn of Georgia. Senator Nunn worked his way up into a position of party importance that allowed him Chairmanship of the Armed Forces committee. While most people agree that he was a fair and effective leader of this committee, the political influence he wielded was translated into economic power in his home state. Nunn funneled tax funding into Georgia's many military bases and he aggressively protected those bases from closure in spite of federal need. When he ran his final election for senate, his chief argument against his republican opponent was that his defeat would mean economic ruin for Georgia because a Georgian senator would no longer head the Armed Services Committee.

Voters in Georgia rightly understood the implications of a possible defeat of Senator Nunn and returned him to office for purely economic reasons. In spite of complaints by members of the Democratic Party that Nunn was a Democrat in name only, his political beliefs were simply over ridden by voters fearful of having to endure facility reductions and base closures. In this specific case, we see a glaring example of how the state of Georgia was poorly represented. If Nunn had been beholden only to his state house, he very probably would have been replaced by a person who acted more in line with the political ideals of the Democrat Party. His replacement may have seen how keeping and increasing funding of un-needed bases was an unacceptable use of taxes. He would have been free to vote his party's ideology and block budgetary actions by the House without fear of political costs. In short, the senator could have acted as a statesman concerning the recognition of the fact that the republic as a whole did not require federal bases on Georgian soil. Instead, Nunn used his impressive political power to economically benefit his electorate and abuse the republic as a whole by requiring taxation for un-needed facilities.

The aftermath of Senator Nunn's retirement has been evidenced in the reductions, closures, and eliminations of many military activities in the state of Georgia. The temporary and artificially enlarged expenditures of tax money now having been removed, much of the economies that came to rely on this tax money have collapsed. Which brings into focus the issue of abuse because of the forced economic consideration of every state's congressional delegation. Because of direct election, Senators have become enablers of ever-larger federal spending schemes. Their capacity for increasing spending is evidenced by the fact that senatorial campaign spending has skyrocketed as economic interests contribute to their campaigns in an attempt to ensure post election access. Senate election contributions often have a substantial part of their funding originated in national trade groups and multi national conglomerates. The actual contribution by individual constituents makes up a fraction of the total campaign costs. In worst-case scenarios, this funding means that ultimately, a senator is not beholden to his constituents or party affiliation.

So if a senator is not beholden to his constituents what has the Seventeenth amendment accomplished? It has resulted in political affiliation becoming a minor component of how a senator votes. It has meant that the campaign cycle and fund raising have become a constant component of a senator's term of service. It has meant that the rights of a state as a member of a republic has been diminuated because of a senator's own political needs for election. It has removed the capacity of the senate as a whole to resist budgetary excess by the House. Ultimately it has turned the Senate into a body which seeks to exchange political votes at the expense of the idea that the senate is the part of Congress which seeks and forms long term solutions to the benefit of the federal republic and by extension, to the people of their home state.

In this paper, an attempt has been made to show how political party ideals, state rights as members of the republic, and excessive economic manipulation of taxes has left the average citizen poorly represented. Judicial review has become the only means by which a political party's agenda can be implemented because Congress has become devoted to economic returns on political power. National parties have found that party dogma often has little chance of support in Congress. Because any change in budgetary outlays equally cripples both national parties, neither party risk true policy implementation in Congress. States have found themselves trapped in an economic exchange of taxes which diminishes both their individual rights and forces them to remain committed to failed federal policy. The Senate has been transposed into a body that no longer seeks to protect the rights of the several States but into a body, that exchanges political votes for economic gain.

This is an abuse of both the government and the governed. Neither national political party has the ability nor will to implement their policy goals because of the economic risks inherent in implementing their party political goals. States individually cannot additionally fund independent programs when they already find themselves trapped in a commitment to funding these programs at the federal level. The executive branch finds that the apportionment of funds and services often has little to do with need, but more to do with congressional political influence. Finally, the citizen of a state often finds himself trapped into having to deal with poorly functioning federal programs that do not meet the needs of the citizen.

If you are a liberal or conservative, the continuation of this abuse should equally offend both political views. While issues and solutions such as publicly financed political campaigns and term limits have been proposed, none of these solutions gets down to the core issue of the economic nature of federal politics. To end this abuse, both parties should equally embrace the wisdom that indirectly elected senators brings to solving the problem of pork barrel spending and expediency at the expense of party political platforms. With senators no longer held prisoner to the campaign cycle and providing politically motivated economic programs for their home state, Senators again could act as statesmen and consider congressional actions based on how it effects the republic as a whole and their states individually. Unless such a system is amended to the constitution, we will find ourselves trapped in the current congressional abuse with only executive orders and judicial appeals available to attempt a curtailing of the abuse.

Copyright © 2003 by Greg Lee


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