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November 12th, 2010

An Unconstitutional Constitution?

By Nathan Tucker

In a November 6th interview with Senator-Elect Mike Lee (R-UT) on his Freedom Watch program on the Fox Business Network, Judge Andrew Napolitano argued that part of the U.S. Constitution is itself unconstitutional.  That provision, according to Napolitano, is the 17th Amendment, which removed the selection of U.S. Senators from the statehouse to direction election by the people.  Napolitano argued that this amendment is the:

Death knell of the idea that the federal government is a coming together of independent sovereign states.  The 17th amendment meant that the States no longer had a place at the federal table along with the popularly elected House of Representatives and the President elected by the Electoral College.  The very idea of the Constitution as an agreement among sovereign states has been assaulted.  The 17th Amendment is the part of the Constitution that is unconstitutional and it should be repealed.

Napolitano has long been an advocate of the theory of state’s rights, writing in his book The Constitution in Exile that:  “[Abraham Lincoln] blatantly ignored the rights of the states to secede from the Union, a right that is clearly implicit in the Constitution, since it was the states that ratified the Constitution and thereby decided to enter the Union.  Surely these same states had the right to decide to undo that act.”

As has been previously noted, We the People rather than the States ratified the Constitution and, therefore, the States have no right to interfere in our contract by succession or nullification.  But, even assuming that Napolitano is correct that the Constitution is a contract between sovereign States, that doesn’t mean the 17th Amendment is constitutional for the simple reason that it was lawfully ratified pursuant to that contract.

Constitutional theory aside, Napolitano’s larger point, shared by Senator-Elect Lee, is that, ideally, the 17th Amendment should be repealed.  This is something that all constitutionalists can agree on.  Because the Founding Generation knew that constitutional limits on federal power were simply parchment prohibitions, they devised institutional checks and balances in the structure of the federal government so that, as James Madison wrote, each of the “constituent parts may…be the means of keeping each other in their proper places.”

But, as the last century has made abundantly clear, once the States lost their voice in the federal government, they become mere handmaidens of unrestrained national power and that federalism, that great preserver of the greatest amount of liberty for the American people, was reduced to a mere shadow of its constitutional self.

Any effort, however, to restore that voice to the States by repealing the 17th Amendment is dead upon arrival in Congress.  As Senator-Elect Lee noted in his interview with Napolitano,  “…in practical terms, I don’t think it will be likely in our lifetime that there will be the political will to abolish the 17th Amendment.”

Even if the 17th Amendment were repealed in the next few years, it would likely have little effect on how Washington does business.  It may prevent unfunded federal mandates and some of the most obnoxious federal legislation such as ObamaCare and No Child Left Behind, but by itself it will do little to change a hundred-year-power-grab by Congress.

The answer, radical as it is, is simply for the Constitution to be enforced, first, by our federal legislators and, as a last resort, by our courts.  With or without the 17th Amendment, the Constitution establishes a federal government of limited, enumerated powers.

Until the political will exists among We the People to demand that our elected officials begin to take incremental steps towards constitutional responsibility again, the repeal of the 17th Amendment will accomplish precious little.

Though on life-support ten, five, or even two years ago, there are signs that this political will is again stirring and growing in momentum as Americans read and study their Constitution.

The first test of the political power of this modern wave of constitutionalism will be to hold the Republicans to their Pledge to America in which they:  “Pledge[d] to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored—particularly the Tenth Amendment.”

The campaign may be over for Republicans as they move from being candidates to governing as a majority party in the House, but the campaign for constitutionally literate and responsible federal legislators has just begun.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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