The State, the Advocate for the People and the Repeal of the 17th Amendment

The past two years have seen an unprecedented acceleration of the usurpation of power and tyranny by the federal government. The people of these united States are appalled and frightened by the arrogance of the federal tyrant and the dismissive attitude our elected federal officials have toward our national compact, the U. S. Constitution. Each elected official takes an oath to protect and defend the Constitution of the United States of American, but many blindly ignore that great document as they seek to cultivate national power.

In 2010, while the federal Congress was voting to require all citizens of America to purchase health insurance, the Missouri Legislature was voting to declare the federal mandate null and void. The final version of the Missouri Health Care Freedom Act, Senate Substitute for HB 1764, championed by Senators Cunningham and Lembke and Representatives Jones and Nieves, was passed by the senate by a vote of 26-8 (76%) and by the House by a vote of 108-48 (69%). The Missouri Health Care Freedom Act was submitted to a vote of the people of Missouri and approved by a vast majority of 71% on August 3, 2010.

How should the people of Missouri respond to the oncoming tyranny of the federal government? How should the state of Missouri take the message of Missouri Health Care Freedom Act and foster the liberties of its people? Many things must be done to cure our nation of the evil of tyranny. One partial remedy is the repeal of the 17th Amendment of the U.S. Constitution. The 17th Amendment provides that United States Senators shall be elected by a popular vote of the people of each state. But this was not always the case in this great federal republic. The Constitution, before the adoption of the 17th Amendment, provided that two Senators from each state would be chosen by the Legislatures thereof. It is now time to repeal the 17th Amendment and return the authority to select U.S. Senators to the state Legislatures.

The 17th Amendment is defended via claims of democracy and giving power to the people. However, the people have been duped and disserved by such emotional arguments to the end that they exercise their power ineffectively. All governing power in these united States derives from the people. The Declaration of Independence emphatically announces that,

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

While recognizing that all authority comes from the people, the Declaration also asserts that the united colonies are free and independent states as is the state of Great Britain. The states have the right to levy war, conclude peace, contract alliances and establish commerce as independent entities. The conviction of the founding fathers was that the states derive their authority from the people and the federal government derives its authority from the states through the U.S. Constitution.

So the question is not who has the authority but how the people may most effectively exercise their authority. Which method of selecting the U.S. Senate is most protective of the liberties of the citizens of Missouri? Since 1913, when the 17th Amendment was ratified, U.S. Senators have been selected by a direct vote of the people of each state. Since that time, this nation has seen a continual concentration of power in the federal government, through this last year when we have seen the federal government usurp the authority to make individual health care decisions. The attitude of Senator McCaskill is endemic and representative. McCaskill was asked by CNS News on December 22, 2009, “Specifically where in the Constitution does Congress get the authority to mandate that individuals buy health insurance?” McCaskill said, “Well the -- we have all kinds of places where the government has gotten involved with health care and mandating insurance. In most states, the government mandates the buying of car insurance, and I can assure everyone that if anything in this bill is unconstitutional, the Supreme Court will weigh in.” As reported in Politico on January 20, 2010, Sen. McCaskill stated, "As I said to somebody last night: everybody needs to get the Washington wax out of their ears and listen and pay attention that people out there believe that we are going too far, too fast." On August 18, 2010, it is reported that McCaskill made the following comment on Proposition C, the Missouri Health Care Freedom Act: "Basically it's a referendum that doesn't have much legal impact. It was, I think, largely political, and I don't think it will have a large amount of impact on what actually happens with changes to health care in Missouri." Senator McCaskill did vote for the federal mandate on health care.

Taking these comments together, it is clear that McCaskill knew that the people of Missouri opposed the national health care legislation early on. After she got the Washington wax out of her ears and heard the opposition, she supported the national health care legislation and voted for it as the right thing to do. She voted for it even though she could not support her decision. Her response to the constitutionality question was a non-answer. Neither the past conduct of the federal government nor states’ actions has any bearing on the constitutionality of a proposition enacted by the federal government. While the Missouri Health Care Freedom Act passed with 71 % of the vote, its passage has not changed the tone of Sen. McCaskill’s rhetoric. In her assessment, it had very little impact.

As confirmed by the Declaration of Independence, the first and primary recipients of the governing authority of the people are the states. The states are the first line of defense against tyranny. Since the founding of the nation, the states have been the consistent advocate of liberty within this nation. Their authority must be respected. Unfortunately, the 17th Amendment has diminished the respect due the states.

If the U.S. Senate had been selected by the state legislatures in 2008, it is likely that the federal health care legislation would not have passed in 2010. In the 2010 Missouri legislative session, in addition to the Missouri Healthcare Freedom Act, there were a number of resolutions proposed recommending the Missouri Congressional Delegation take positions on particular matters, including the federal health care legislation, energy regulation, and a balanced budget. The common objection to each was that they were not worth the paper they were written on inasmuch as they could be freely disregarded by the representatives and senators. It should never be that Missouri’s Congressional Delegation should disregard the expressions of their state Legislature.

How different would it be if Missouri’s U.S. Senators were appointed by the Legislature? If each Senator were beholden to the Legislature for his or her appointment to the seat of service to the state, the situation would be drastically different. Imagine justifying your votes to 163 state representatives and 34 state senators rather than countless thousands of voters who may or may not show up to a particular election and who will make their decisions based on the quality of the public relation package presented to the public. The expressions of the state would be of paramount importance.

The state of Missouri will always be your first and best line of defense in thwarting federal tyranny. The natural lines of affinity and fidelity between local state representative and senators and the people will support Missouri as your best advocate of liberty. Remember that your state senators and representatives live close to you. They are more likely to share your interests. They are more assessable and easily replaced at your will. In addition, the state’s natural protection of its own interests and authority will encourage it to guard against a usurpation of power by the federal government.

As we have seen the federal tyrant increasingly usurp unauthorized and unwarranted power, the people must reclaim their authority to exercise their liberties. The most important question is how to bring the tyrant under the control of a free society. The answer is to bring more power back to the states. One way of doing that is to return the authority to select U.S. Senators to the Legislatures of the various states as was the original design of the founders. The people have their popularly elected advocate, their Congressman. The states must receive back their advocates for the people, the Senator.

Ethics Reform: A Return to Justice

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. . . . The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.

So warns Federalist No. 51. Federalist No. 51, generally attributed to James Madison, was written according to its author, to "form a more correct judgment of the principles and structure of the government planned by the Constitutional Convention." The author observes that the best way to protect the rights of individuals in a federal republic is to distribute governing power amongst various sects and interests. When any particular group gains majority status in a republic, such group can wield power against the liberties of a minority.

We have seen in a dramatic fashion how political power concentrated in one political party has produced a loss of freedoms in this nation in recent years. Most recently, we have seen how the United States, controlled by one political party, i.e. a majority faction in political power, has brought about change at the expense of the liberties of the people. We have seen the usurpation of health care decisions, the takeover of large business interests, and the expansion of the federal deficit all at the cost of the American tax payer and their descendants. Such abuse of power is not limited to one political party. We should not forget that the TARP bailouts were supported by both of the last two administrations. The government, when controlled by both political parties, has overseen the subjugation of the people to massive federal debt. In light of these warnings from Madison, the citizens should be wary of any effort to concentrate power in political parties.

In 2010, the Missouri Legislature gave the state of Missouri an ethics reform law which will help concentrate political power in the two major political parties in the state. SB 844 is a wide ranging ethics and campaign disclosure bill. There are many things in SB 844 which are arguably improvements in the state’s laws regulating the conduct of political campaigns. (It is important to understand that ultimately no law can guard the integrity of the political and legislative process as can the electorate by electing honest individuals to office. Only by the voters seeking honest men and women of integrity to fill offices of power will liberty be secured. I will discuss these principles later in this editorial.) However, in many respects, the campaign reforms look to impose ethical standards on the wrong interests. Rather than addressing the standards and ethics of the candidates and elected officials themselves, it seeks to restrict the liberties of the citizens.

Take for examples a new restriction on the operation of political action committees, or PACs for short. PACs are private funds collected by groups of people with similar interests or philosophy. The new law prohibits PACs from receiving money from other PACs and other types of committees, such as a candidate’s own committee. The theory behind this restriction is that it prevents citizens from disguising the source of money contributed to a political campaign. By imposing such restrictions on PACs, we make it easier to assess what interest groups are influencing a particular official. In contrast, a candidate’s committee and political parties are not subject to such restrictions, and one committee for each political party for each chamber of the Missouri General Assembly as designated by the political party or official of the party is explicitly exempted from the restriction.

In our culture, political campaigns are most effectively conducted through the media outlets of television and radio. Media costs money. Therefore, money and political contributions are the facilitators of speech. Money is speech. The Constitution of the State of Missouri, no less than the U.S. Constitution, guarantees that now law will be made impairing the right of speech and that all people have the right to assemble together for their common good and apply to those invested with the power of government.

The practical effect of the new restrictions is to force PACs to either contribute their funds to a political party committee or to a candidate’s committee. Once money has been donated to a PAC, such money is unavailable to another PAC. The restriction prohibits PACs from combining their resources. While political parties may aggregate their resources and power, private assemblies of people may not. Such restrictions concentrate power in the political parties, and they deny speech to the people that they permit to political parties.

If we must regulate ethics, let us regulate the ethics of the subject under consideration. If I, as a lobbyist, were to approach a legislator with a bribe, the critical conduct of the transaction is whether the legislator accepts the bribe. It is the honesty and integrity of the legislator that is of paramount importance to the state. My conduct of offering the bribe is irrelevant to the legislative process if the bribe is rejected. Therefore, it is the ethics and the susceptibility to influence of the legislator that is the critical subject of ethical regulation.

Our constitutional principles clearly anticipate that citizens will influence elected officials. It is Section 9 of the Missouri Constitution which assures the people of the right to assemble and apply to those invested with the powers of government for redress of grievance by petition or remonstrance. The problem, of course, is the exercise of improper influence. In the same paragraph quoted above, the author writes that, “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Our problem is that we have lost sight of the true meaning of justice. Our legislative process is constantly pitting one interest against another. We legislate the taking of money from one group for the payment of benefits to another group simply because one group has money and another does not. Our nation is so completely in debt that the liberties of our children’s children will be infringed for the benefits doled out to the politically favored today. Is this justice? If our legislatures would return to their primary function and if our people would insist upon our legislatures protecting the liberty of all individuals, there would be less opportunity for the exercise of improper influence.

From Federalist No. 51, Always Worth Remembering

Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

PUBLIUS.

First Thoughts in Constitutional Law?

I just bought a Constitutional Law case book to brush up on my Constitutional Law. The first quote in the book was from Bishop Hoadly in a sermon to the King in 1717. "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them." While this may ultimately be a true prophesy, only a corrupt man would actually seek to fulfill this prophesy at the corruption of the original written or spoken word. It is a shame this is the first thought put before a law student on the matter of Constitutional Law.

It appears that the case under consideration in the case book, Marbury v. Madison, is in accord with my view.

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!