The day after the Seventeenth Amendment became part of the Constitution, the balance of power that had existed between the states and the federal government since the Constitution’s ratification was dealt a critical blow. The long silence of the states had begun. The states no longer had a legislative venue, or any venue, to influence directly the course of the federal government. This contributed significantly to the dismantlement of the states’ traditional and exclusive areas of governing responsibility. As a result, today the federal government fills whatever areas of governance and even society it chooses. State sovereignty exists mostly at the will of the federal government. The federal government’s limited nature under the Constitution was transmuted into the kind of centralized power structure the Framers worked so diligently to thwart.
Yet this proposed amendment, perhaps more than the others, may be considered the most controversial and politically difficult to institute. After all, the direct popular election of senators was sold as, among other things, empowering the people against wealthy, corrupt, and connected special interests. Opponents of the Seventeenth Amendment will undoubtedly be accused of being “antidemocracy” and favoring “politicians choosing politicians.” Of course, the Statist is the architect of the current post-constitutional environment in which governing masterminds attack relentlessly the individual’s independence and free will. The Statist may claim to defend “democracy” but in fact he abandons the electoral process when the outcomes do not advance his agenda. He then resorts to legal and policy evasions and contrivances, relying on government by clandestine lawmaking, judicial overreach, and administrative fiat, all of which destroy self-government.
Indeed, the state convention process is a response to an oppressive federal government, the potential of which was feared by the Framers. However, it will be opposed by the Statist, for he may pose as a democrat, but it is democratic tyranny that he favors. Moreover, the proposed amendment, along with the others, provides recourse against the kind of centralized and ubiquitous edifice the federal government has become. It is the state legislatures, acting together, that can buffer the individual from the relentless trespasses of the federal government and restore constitutional republicanism.
And what of the post–Seventeenth Amendment Senate? Rather than spending time conferring with the elected state officials who would have sent them to Washington, D.C., and representing primarily state interests in the Senate, these senators now spend more time with, and are more beholden to, Washington lobbyists, campaign funders, national political consultants, and national advocacy organizations. In fact, states are often viewed as little more than another constituency, one among hundreds, with interests that may or may not be relevant to or comport with a senator’s political and policy ambitions.
Furthermore, state sovereignty is not a top priority for most senators because the state legislatures hold no sway over them. Therefore, situations arise where senators vote for major federal legislation over the strenuous objections of their own states. For example, more than half of all states—twenty-seven states—joined federal litigation to overturn the so-called Patient Protection and Affordable care Act, aka Obamacare, yet the law was passed in the Senate by a large majority of sixty votes.26 In Virginia, both senators—Mark Warner and Jim Webb—voted for Obamacare, despite strong opposition from Virginia state officials. The state attorney general, Ken Cuccinelli, was among the first to bring a lawsuit.
Consequently, as a result of one election cycle in 2008, where the Democratic Party controlled all the elected parts of the federal government for a short two-year period, there was no counterweight or check on lawmaking, which a Senate whose members were elected by the state legislatures would have provided. Although in the very next election cycle, in 2010, the Republican Party won historic victories at all levels of government, including a huge victory in the House of Representatives, the Senate and president resisted all efforts to modify or repeal Obamacare.27 Its implementation proceeded at a feverish albeit chaotic pace, as it does today. Meanwhile, the people continue to oppose Obamacare, as they have from the outset.28
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The Seventeenth Amendment serves not the public’s interest but the interests of the governing masterminds and their disciples. Its early proponents advanced it not because they championed “democracy” or the individual, but because they knew it would be one of several important mechanisms for empowering the federal government and unraveling constitutional republicanism. And they have done so, they claim, with the consent of the citizen, for the citizen can cast a vote for his senator. Of course, the federal government’s utopian mission is undeterred by voting should the citizenry vote in opposition to it. The vote is easily and routinely frustrated by all the federal branches, as is self-government generally.
The proposed amendment repeals the Seventeenth Amendment, thereby reestablishing the Senate to the character intended originally by the Framers and set forth in the Constitution. As such, it returns Congress to a true bicameral institution; provides the states with direct input into federal lawmaking decisions in real time; decentralizes the influences on a senator from Washington, D.C., to the states and local communities; and encourages a more rational, reflective, and collaborative legislating process. In addition, the proposed amendment ensures that no Senate vacancy can continue beyond ninety days and that state legislatures have the authority to remove a senator for any reason.
CHAPTER FOUR
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AN AMENDMENT TO ESTABLISH TERM LIMITS FOR SUPREME COURT JUSTICES AND SUPER-MAJORITY LEGISLATIVE OVERRIDE
SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.
SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.
SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.
SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.
SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.
SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.
SECTION 7: The States’ override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.
SECTION 8: Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.
THE FRAMERS OF THE Constitution anticipated many things. They were concerned about a national executive—the president—becoming a tyrant, so they created a powerful legislature and an independent judiciary to slake presidential ambitions. They worried about the momentary passions of a tempestuous time inflaming the populous and, by extension, the Congress, so they created the presidential veto, and divided legislative authority between a House of Representatives selected by the people and a Senate chos
en by the state legislatures. Some of the Framers also feared a too-autonomous judiciary that would grow in power and purview and, eventually, swallow the other branches of the federal government and the states. To protect against this, they granted Congress the power to define both the size of the Supreme Court and the makeup of the federal court system below the High Court.1 And, with only a few exceptions, they also granted Congress the power to determine the original and appellate jurisdictions of every federal court.
In addition, to ensure that both the executive and judicial branches did not become sinecures for corrupt officeholders, they granted Congress the power to impeach and remove judges and most federal officials up to and including the president in certain cases.2 Moreover, in order to help control the scope and reach of the central government and safeguard state sovereignty, they enumerated in detail the powers and limitations of federal authority both in the Constitution itself and what would become the Bill of Rights—the first ten amendments approved by the First Congress, and ratified by the states in 1791.
Beyond freedom from undue influence, the Framers also realized that the judiciary’s independence had to come with some significant strings attached, ensuring it fit into a republican form of government. Federal judges were expected to adjudicate “cases and controversies” that arose under federal criminal law and civil statutes—and exercise very little authority beyond that narrow scope. Contrary to the opinions of some notable Supreme Court justices and others down through the years, the reason the Framers did not specifically grant to the Supreme Court the much broader authority to judge the constitutionality of federal laws is that there was strong sentiment that such a function was well outside the authority of judges. This was a primary reason Congress was granted authority to structure the courts.
In particular, on June 4, 1787, at the Constitutional Convention, the delegates took up the issue of granting the national executive (the title of president had not yet been adopted) the ability to “give a negative” (veto) to any act of the national legislature. Some delegates, including James Madison, initially favored a “council of revision” made up of the executive and judiciary, which could reject acts of the legislature. The convention quickly rejected the idea of including the judiciary in such a review process. They did not want judges involved in the legislative process, thereby reviewing laws they might eventually have to adjudicate. Instead, the delegates came up with the presidential veto.3
Subsequent debate centered on the size of the majorities in the branches of the legislature necessary to override a veto, and whether to even include the possibility of the legislature overriding a veto at all. Alexander Hamilton thought the executive should be given an absolute negative over legislative acts. Pennsylvania’s James Wilson observed that the mere presence of an executive veto would cause it to be seldom used, even with a legislative override option. “The Legislature would know that such a power existed, and would refrain from such laws, as it would be sure to defeat. [The veto’s] silent operation would therefore preserve harmony and prevent mischief.”4
The point is that the Framers clearly intended to create intrinsic limitations on the ability of any one branch or level of government to have unanswered authority over the other. Moreover, there can be no doubt that were the conditions that exist today—with the Supreme Court involving itself in minute and endless facets of everyday life—known to the convention delegates, they would undoubtedly endorse a check on judicial authority.
In Federalist 78, Hamilton wrote, in part:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. . . .5
In Anti-Federalist 11, Brutus, believed to be New York judge and Anti-Federalist Robert Yates, one of the most articulate opponents of the Constitution, was alarmed. He warned:
The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature. . . . No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications. . . .6
In addition, Yates made this prediction in Anti-Federalist 15:
Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.7
Yates, who died in 1801, did not live to see the 1803 Supreme Court decision in Marbury v. Madison. No doubt he would have been appalled. In his decision, Chief Justice John Marshall wrote, in part, “The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.”8 It is true Marshall wrote that the judiciary should exercise “judicial review” prudently; however, this was of little consolation. By claiming authority not specifically granted by the Constitution, abuses of power would certainly follow, as they have.
Although the decision has been lauded by many scholars of all philosophical stripes, the fact is that the ruling altered and expanded the Court’s limited authority to adjudicate civil disputes and criminal complaints into a judicial oligarchy with few institutional limits on its power. And the extent to which there are limits depends on the forbearance of the very courts that snatched the authority in the first place. It would seem that if a Supreme Court majority of five lawyers has the final word on constitutional matters, then governance comes down to selecting five lawyers. This is obviously contrary to the Framers’ intent. Had the Constitutional Convention conferred such authority on a handful of individuals, which it most assuredly did not, it is indeed doubtful it would have conferred life terms upon them and provided no effective recourse.
No less than Thomas Jefferson, the original author of the Declaration of Independence, was furious about the Marbury decision. In a letter to Abigail Adam
s, John Adams’s wife, Jefferson wrote a year after Marbury was issued, “The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”9
Jefferson’s concerns with judicial power became more pronounced as he passed into old age. In 1820, he wrote William Jarvis:
[T]o consider judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps . . . and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.10
Decades later, President Abraham Lincoln would have to grapple with the Supreme Court’s 1856 decision in the notorious Dred Scott v. Sandford case, which was an abomination. The issues included whether Scott, a slave, could sue for his freedom as a longtime resident of a free territory (the territories of the Louisiana Purchase) and whether Congress’s ban of slavery in those territories was constitutional. Chief Justice Roger Taney, who held that office from 1836 until his death in 1864, argued for the majority of the Court’s members that Scott was not a citizen, for citizenship had been confined to the white race and, therefore, Scott had no standing to sue. Moreover, he declared that Congress did not have constitutional authority to ban slavery in those territories, for it denied slaveholders property without due process.11 Should Taney and the Court have had the final word? The Dred Scott decision was a major impetus for the Civil War.