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JEQuidam
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Was the 17th Amendment properly ratified?

Post by JEQuidam »

This author offers a very interesting supposition about the 17th Amendment: She asserts that it may have not been properly ratified! If that is so, then the states could declare it null and void.

Read what Devvy Kidd wrote in Why Seventeenth Amendment Can't Be Repealed. ( October 1, 2010)
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Re: Was the 17th Amendment properly ratified?

Post by Paul »

No reconsideration of any power grab can occur without a citizen legislature.
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Re: Was the 17th Amendment properly ratified?

Post by HouseSizeWonk »

The "Devvy" piece suffers from the disadvantage of not making any sense. I mean, there are the lame-brain factual errors which are neither here nor there, but detract from her credibility. (E.g., the First Continental Congress convened on September 5, 1774. The Congress of the Confederation first convened on March 1, 1781. Obviously, this presents an impossible timeline for the First Continental Congress to have convened "via a resolution of" the Congress of the Confederation. She appears to be referring to the Philadelphia Convention.) She also gets issues of the pre-17th Amendment constitutional regime wrong. (States could not "recall" their Senators. Once elected by the Legislature, a Senator had a fixed term of office, no different than the President or a member of the House.) She makes assertions that just are illogical. (Why are federal judges "beholden" to Senators? They have lifetime tenure, their pay can never be decreased, they depend on the President to nominate them before the Senate even gets to consider them, and the vast majority of federal judges know they have no chance of, and have little desire for, "promotion" within the federal judicial system.)

But getting at her on-point constitutional argument, it really doesn't make any sense at all. In what way do the States not have equal representation in the Senate? Each State still gets exactly 2 (no more and no less). Indeed, if anything the 17th Amendment has increased the equal representation of States in the Senate, because vacancies have become a lot less frequent, meaning that most States most of the time have 2 Senators seated, instead of legislative gridlock in the State Legislature preventing anybody from getting elected (a problem the 17th Amendment was intended to help reduce).

She writes: "Many states were out of session during the time of the ratification process. Since several states were out of session at the time of the vote, have they been deprived of equal Suffrage in the U.S. Senate because they did not participate in the ratification of this amendment?" I am not sure what she means by this. Does she mean that the State Legislatures were not in session during the 17th Amendment's ratification process? I don't know how this would be possible -- it was proposed to the States on May 13, 1912, and ratified on April 8, 1913, so the only way that a State could be frozen out of the ratification process would be in the curious circumstance of its legislature only meeting from April 9-May 12 of the year. And even then, virtually every State Constitution provides for the Governor's authority to call for a special session of the Legislature as needed (such as, say, to consider a proposed Amendment to the U.S. Constitution). Beyond that, who cares? At the time, there were 48 States. Three-quarters of 48 is 36. The 36th State ratified the Amendment on April 8, 1913 (Connecticut). So, even if several State Legislatures weren't in session during the ratification process, enough were to ratify the Amendment, which did not change any State's equal representation in the chamber but only the method by which the members were selected. And, in all of the many words she has put here, she only has the following bare assertion challenging the legality of this process:
"Our purpose was to obtain, which we did, court certified documents regarding the ratification of that amendment. Having obtained them, there is no doubt that amendment was not ratified by enough states at the time. Five states allegedly didn't ratify until months after then Secretary of State, William Jennings Bryan, declared it ratified."

Details? Am I just supposed to take her word for it that "there is no doubt that amendment was not ratified by enough states at the time"?

For what it's worth, I'd like to see the 17th Amendment repealed, although done in such a way as to avoid the problem of State legislative gridlock keeping seats vacant. But this argument just makes no sense.

In leafing through her website, it looks to me like her principle argument that the Amendment was never properly ratified is that most States purported to ratify resolutions containing an amendment text that had typos or other variations in it. But this has never been recognized as a legitimate argument in this context. If it were, very few (if any) of the Amendments would ever have been properly ratified, as well as the Constitution itself. The Second Amendment is a good example: http://www.law.gmu.edu/assets/files/pub ... tution.pdf

Another thing "Devvy" seems confused about is when an amendment is considered ratified by a State. It is not ratified when the Governor signs the resolution of the State Legislature. It is not ratified when the Governor or other state official sends a letter to the federal government, or when that letter is received. It is ratified whenever the 2nd chamber of the State Legislature (or, in the case of Nebraska, the only chamber) passes it. The Constitution clearly says that amendments are ratified by the legislature, which has always been interpreted as making gubernatorial approval of any proposed amendment superfluous (in much the same fashion that the President has no role in "signing" an amendment to the Constitution, nor may he veto a proposal).
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Re: Was the 17th Amendment properly ratified?

Post by JEQuidam »

HouseSizeWonk wrote:The "Devvy" piece suffers from the disadvantage of not making any sense...
Thanks for the analysis. I didn't know what to make of that column. I appreciate your critical examination. Of course, it's wishful thinking that there is a easy way to overturn the 17th Amendment.
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Re: Was the 17th Amendment properly ratified?

Post by HouseSizeWonk »

JEQuidam wrote:
HouseSizeWonk wrote:The "Devvy" piece suffers from the disadvantage of not making any sense...
Thanks for the analysis. I didn't know what to make of that column. I appreciate your critical examination. Of course, it's wishful thinking that there is a easy way to overturn the 17th Amendment.
I am frustrated by amateur constitutional scholars/theorists who are angrily insistent (like "Devvy"). If you don't know what you're talking about, that's fine, but don't do this whole chip-on-your-shoulder game that she seems to specialize in.

The "Tea Party" movement has popularized this idea enough that it is approaching the mainstream. There was something in National Review about it a couple of weeks ago.

The problem as I see it is that "repeal the 17th Amendment" is not a responsible proposal. The 17th Amendment was designed to address real problems, like legislative gridlock preventing anybody from being seated at all. As they say, the devil is in the details, and if I were a member of Congress I would never vote for a proposed amendment that offered to repeal the 17th Amendment straight-up, notwithstanding that I support "repealing" it. And this is how proposals stall in Congress or any other legislative body: you need the appropriate majority to agree not just on what the problem is, but the exact mechanism you're going to use to fix it. I guess my point is: I think "repeal" has more cachet than it has ever had before, but I can't conclude it really has legs unless the proponents can confront the problems it attempted to address, even if wrongheadedly. I agree that legislative election of Senators was, on the whole, a better method, but let's not pretend that it was some magical era of unparalleled good government.
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

HouseSizeWonk wrote:The problem as I see it is that "repeal the 17th Amendment" is not a responsible proposal. The 17th Amendment was designed to address real problems, like legislative gridlock preventing anybody from being seated at all. As they say, the devil is in the details, and if I were a member of Congress I would never vote for a proposed amendment that offered to repeal the 17th Amendment straight-up, notwithstanding that I support "repealing" it. And this is how proposals stall in Congress or any other legislative body: you need the appropriate majority to agree not just on what the problem is, but the exact mechanism you're going to use to fix it. I guess my point is: I think "repeal" has more cachet than it has ever had before, but I can't conclude it really has legs unless the proponents can confront the problems it attempted to address, even if wrongheadedly. I agree that legislative election of Senators was, on the whole, a better method, but let's not pretend that it was some magical era of unparalleled good government.
This is the very reason why I wrote a proposed Amendment which would repeal the 17th Amendment in the following manner:
Section 1.
The seventeenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
If Vacancies in the representation of any State in the Senate happen by failure of the Legislature of such State, the Executive authority of such State may make temporary Appointments until the Legislature of such State fills such Vacancies.

Section 3.
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.
What do you think?
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Re: Was the 17th Amendment properly ratified?

Post by Paul »

If we're going to address the issues with the election of senators, then address all of the issues. I don't like it that they serve 6-year terms. The world can really change in 6 years and we tend to forget what happened 6 years ago. The senators need to be accountable at all times in all things to the states. This helps to prevent sudden 'surprise' bills, like the PATRIOT Act, from being passed.

My suggestion is to have the state legislators appoint senators for indefinite terms. This way they can appoint a new senator at any time and gridlock will not cause a gap in representation. I would suggest something like this:

Each state's legislature shall appoint 2 senators through the method and place of their choosing. The senators shall be sworn in by the state legislature and serve until the date and time their replacements are sworn in.
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

Paul wrote:If we're going to address the issues with the election of senators, then address all of the issues. I don't like it that they serve 6-year terms. The world can really change in 6 years and we tend to forget what happened 6 years ago. The senators need to be accountable at all times in all things to the states. This helps to prevent sudden 'surprise' bills, like the PATRIOT Act, from being passed.
Paul, I definitely disagree with your conclusion as I don't think in the wake of 9/11 your changes would have prevented the passage of the Patriot Act; but, more than that, the very reason you dislike that Senators serve 6-year terms is the very reason the Founding Fathers in their infinite wisdom made certain to appoint them to extended 6-year terms.

The Senate is supposed to be a more stable body than the House and less susceptible to the wild whims of the public passions du jour. This break-up of Congress into the two diverse chambers, the volatile House and the stable Senate, helps provide a sense of timeliness (where we're going) and history (where we've been) to all legislation; and, in that manner, it creates a most stable, yet flexible, Republic that won't have the power to destroy itself as quickly as democracy inevitably does.
Paul wrote:My suggestion is to have the state legislators appoint senators for indefinite terms. This way they can appoint a new senator at any time and gridlock will not cause a gap in representation. I would suggest something like this:

Each state's legislature shall appoint 2 senators through the method and place of their choosing. The senators shall be sworn in by the state legislature and serve until the date and time their replacements are sworn in.
Moreover, your proposed solution to this wrongly perceived problem invites two far greater problems:
  • 1. While gridlock won't create a lack of representation, it will--like today's election process--create a bias in favor of incumbency; and with indefinite terms, a useless or a corrupt or a milk-toast or a <insert problematic adjective> Senator could be end up serving a lifelong term should he be just agreeable enough to avoid removal and his state legislature just disagreeable enough to remain in gridlock.

    2. If public perception about an issue or a group of individuals, etc. were to change abruptly in a fundamentalist direction--either due to a war, a natural disaster, a scandal, or any of the other multitudes of reasons why public opinion might change overnight in a strong direction--then it would be conceivable that a sudden surge in sentiment at election-time could fill the House with radical Congressmen; and if the Senate tried to stop or slow down radical House bills from becoming law, then those more-mindful Senators could be replaced instantly by their own fearful state legislatures or be held hostage to their newly-elected radical state legislatures.
My proposed solution:
  • a) corrects the unforeseen problem created by the 17th Amendment solution to gridlock,
    b) avoids a bias to incumbency while maintaining the Founders' original intent and stability of the Senate,
    c) corrects the original gridlock issue while
    d) providing multiple and versatile solutions for finding new appropriate state representation in the Senate, such as:
    • 1. Executor appointing the incumbent Senator while his legislature debates on a new appointee,
      2. Executor breaking the tie by appointing one of the gridlocked candidates,
      3. Executor choosing an out-of-the box third candidate agreeable to both sides of the legislature in gridlock,
      4. Executor choosing a third candidate disagreeable to both sides of the legislature in gridlock, thus forcing the gridlocked parties to come to a compromise in a more timely manner.
If we're going to come up with a solution to the Senatorial election problem, we must make sure we don't create new problems (i.e. the 17th Amendment) to replace the old problem (i.e. gridlock). In that spirit, feel free to pick my brain droppings apart.
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Re: Was the 17th Amendment properly ratified?

Post by HouseSizeWonk »

Pseudolus wrote: This is the very reason why I wrote a proposed Amendment which would repeal the 17th Amendment in the following manner:
Section 1.
The seventeenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
If Vacancies in the representation of any State in the Senate happen by failure of the Legislature of such State, the Executive authority of such State may make temporary Appointments until the Legislature of such State fills such Vacancies.

Section 3.
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.
What do you think?
I think the key is how you define "failure of the Legislature of such State."

I think that, ultimately, the best solution is one that nudges the States in the direction of doing the right thing, without actually mandating it, but that at least gives them the option (unlike the pre-17th Amendment regime, which offered no safety valve at all). I am thinking something like:
Section 1:
The seventeenth article of amendment to the Constitution of the United States is hereby repealed: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments in the case of a vacancy in that State's representation in the Senate, until such time as the legislature shall fill the vacancy.
Section 2:
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.

No, it's not perfect, because the possibility of vacancies is not ruled out, but it uses simpler language than a more complete process would need to describe, which means fewer loopholes to argue about. It is an improvement on the pre-17th Amendment regime, because there was no safety valve proviso at that time, which reduced the political costs of gridlock. If this amendment passed, and a State chose not to invoke the proviso, then the first time that an impasse kept the State unrepresented in the Senate, the legislature would have to answer the question of why they had not had the foresight to at least take advantage of the procedural tool available to them, even if they could not come to a consensus on the substantive issue of who should get the State's Senate seat.

I agree with all of Pseudolus's observations regarding the benefits of fixed 6-year terms and whatnot, however. One thing I have mused on, though: perhaps in exchange for movement on increasing the size of the House, we could also increase the Senate to 3 seats per State, instead of 2. The benefits I see of this are as follows:
1. All States would elect a Senator every 2 years. Thus, while only 1/3rd of the chamber would turn over in any given election (thus promoting stability), the political circumstances of each election cycle would play out in every State. It is not sensible to me that Michigan's Senate delegation, for example, was not affected by the political circumstances of 2010 merely because neither of their Senators happened to be a Class 3 Senator.
2. In the short term, it facilitates House expansion by blunting the popular bias that House expansion would induce in the Electoral College. While I support that popular bias, one would expect small States would not -- and whether the House is expanded legislatively or via a constitutional amendment, small States are going to need to come on board.
3. However, I expect it to place an upper cap on the Senate. While 3 Senators per State has an underlying and inherent logic to it (everybody serves a 6-year term, which means every State is electing a new Senator every 2 years, but it only amounts to exactly 1/3rd of the chamber any given year), nothing beyond that does (unless you went to 6 per State, which isn't happening). As a result, if my 2nd supposition is correct, you've broken the gridlock on House size, thus making it part of the national conversation and an issue that will (hopefully) recur every 10 years, but you've done so in a way that the compromise that broke the gridlock probably is a well that the small States cannot come back to again in the future.
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

Point 1:
  • As far as I know, prior to the ratification of the 17th Amendment there were only two possible methods a Vacancy in the Senate could occur:
    • 1) either a Vacancy in the State's representation unexpectedly occurred due to Resignation, illness, death, imprisonment, or otherwise, or
      2) the State's Legislature failed to appoint a replacement Senator prior to the planned vacancy of that State's Senate seat.
    If there is another manner in which a Vacancy could occur, please let me know. Otherwise, upon the repeal of the 17th Amendment, we would once again return to only these two possible causes for a Vacancy in the Senate.
Point 2:
  • The Constitution is written in such a manner as to expect that the State's Legislature would always appoint a Senator prior to the seat's planned Vacancy or upon their first Meeting after the seat's unexpected Vacancy.
    U.S. Constitution Article I, Section 3. wrote:The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; ...and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
    Please note: if the Vacancy occurs during the Recess of the Legislature of the State, the Constitution does not mandate a temporary Appointment by the Executive of the State; it merely gives the Executive the option of temporary Appointment. So too, the language of my proposed amendment does not mandate a Vacancy always be filled; it merely provides, in a very similar manner, an additional alternative so that the State need not be forced to go without representation.

    Had the Founding Fathers imagined any State's Legislature would purposefully choose gridlock over representation, then by omission our Founders would be the ones mandating the State and Senate be improperly represented; and this is an intention I cannot fathom to be true. Therefore I must assume that had our Framers imagined the gridlock problem, they would have provided this additional method for making temporary Appointments until such time as the gridlock issue be resolved. If anyone believes my assumption incorrect, please alert me so that I might appropriately reconsider.
Point 3:
  • HouseSizeWonk wrote:I think the key is how you define "failure of the Legislature of such State."
    Reconsidering the only two options when a Vacancy might occur (i.e. either the State's Legislature is in session or not in session) and reconsidering the only two options for filling a Vacancy while the State's Legislature is in session (i.e. the State's Legislature either succeeds in filling the Vacancy or does not), it seems pretty clear how "failure of the Legislature of such State" is to be defined. In fact, I'd go so far as to conclude that there cannot be any debate on the definition of "failure of the Legislature of such State"; for either the State's Legislature has filled or has failed to fill the Vacancy, regardless of the ongoing reasons for the failure. Any debate would not affect the only two possible outcomes, therefore I see no reason why you believe "the key is how you define 'failure of the Legislature of such State.'"
Point 4:
  • Furthermore, I believe your proposed changes actually create more reasons for argument (i.e. the gridlocked State Legislature now can additionally argue about whether or not to defer to the Executive, which obviously those of a different political party will not want to do) and provide the gridlocked Legislature an inherent excuse to remain in gridlock (i.e. better to leave the Vacancy than to allow their Executive to appoint a candidate potentially harmful to one side's views).
Point 5:
  • Moreover, all the benefits your language makes over the pre-17th Amendment Constitution are already included in my original proposed language (i.e. there is the inclusion of the additional safety valve proviso, and the State's Legislature still is accountable for why they could not make a Appointment), except my language additionally provides that the Executive along with the Legislature be accountable for the ongoing Vacancy.
Considering my proposed language has all the benefits of your language plus more and considering it has none of the drawbacks of your language, I see no reason to adjust the proposed amendment's language at this time. If my reasoning is unsound, please correct me.
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

For clarity's sake I'm addressing your second musing in a separate post:
HouseSizeWonk wrote:I agree with all of Pseudolus's observations regarding the benefits of fixed 6-year terms and whatnot, however. One thing I have mused on, though: perhaps in exchange for movement on increasing the size of the House, we could also increase the Senate to 3 seats per State, instead of 2. The benefits I see of this are as follows:
1. All States would elect a Senator every 2 years. Thus, while only 1/3rd of the chamber would turn over in any given election (thus promoting stability), the political circumstances of each election cycle would play out in every State. It is not sensible to me that Michigan's Senate delegation, for example, was not affected by the political circumstances of 2010 merely because neither of their Senators happened to be a Class 3 Senator.
2. In the short term, it facilitates House expansion by blunting the popular bias that House expansion would induce in the Electoral College. While I support that popular bias, one would expect small States would not -- and whether the House is expanded legislatively or via a constitutional amendment, small States are going to need to come on board.
3. However, I expect it to place an upper cap on the Senate. While 3 Senators per State has an underlying and inherent logic to it (everybody serves a 6-year term, which means every State is electing a new Senator every 2 years, but it only amounts to exactly 1/3rd of the chamber any given year), nothing beyond that does (unless you went to 6 per State, which isn't happening). As a result, if my 2nd supposition is correct, you've broken the gridlock on House size, thus making it part of the national conversation and an issue that will (hopefully) recur every 10 years, but you've done so in a way that the compromise that broke the gridlock probably is a well that the small States cannot come back to again in the future.
Addressing each "benefit" in turn:
  • 1. Any "benefit" that causes the Senate to be less stable and more susceptible to change is no benefit at all, at least in my opinion. While understandably frustrating that Michigan's Senate representation was unaffected by this past election cycle, I would argue that that was the exact reason the Framers chose only two rather than three Senators for each State. Because if a fast-fading and ill-conceived sentiment sweeps the country, at least it won't affect every State's representation; thus wild, easily-regrettable bills and Constitutional amendments are less likely to pass the Senate. Hence, the Senate is more stable and less susceptible to change.

    2. It's important to clarify that your second "benefit" is not really a benefit for the Senate, instead it is a tactic for obtaining a benefit in the House. While I wish to obtain the same benefit in the House, I don't believe we should compromise the Senate to achieve it.

    3. Your supposition that one additional Senator in each State will persuade the small States to ratify an increase in the House but--should those States later dislike the increase in the House--dissuade them from every returning to increase the Senate even further is faulty. If the small States want to increase the Senate because they dislike the changes in the House, they will force the issue, regardless of the "underlying and inherent logic" to your 3 Senator plan. Better not to put the thought in their head that changing the Senate is an option, especially since the proposed changes only hurt that body's stability.
All points being considered with respect to a change in the size of the Senate, I choose to defer to the wisdom of the Framers.
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Re: Was the 17th Amendment properly ratified?

Post by HouseSizeWonk »

Pseudolus wrote: Point 2:
  • The Constitution is written in such a manner as to expect that the State's Legislature would always appoint a Senator prior to the seat's planned Vacancy or upon their first Meeting after the seat's unexpected Vacancy.
    U.S. Constitution Article I, Section 3. wrote:The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; ...and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
    Please note: if the Vacancy occurs during the Recess of the Legislature of the State, the Constitution does not mandate a temporary Appointment by the Executive of the State; it merely gives the Executive the option of temporary Appointment. So too, the language of my proposed amendment does not mandate a Vacancy always be filled; it merely provides, in a very similar manner, an additional alternative so that the State need not be forced to go without representation.

    Had the Founding Fathers imagined any State's Legislature would purposefully choose gridlock over representation, then by omission our Founders would be the ones mandating the State and Senate be improperly represented; and this is an intention I cannot fathom to be true. Therefore I must assume that had our Framers imagined the gridlock problem, they would have provided this additional method for making temporary Appointments until such time as the gridlock issue be resolved. If anyone believes my assumption incorrect, please alert me so that I might appropriately reconsider.
I am not totally following you here in your bit about the Founders. I don't see how what you describe is mandating something "by omission." Whether or not the Founders contemplated that a State would purposefully choose gridlock over representation, the constitutional language certainly allowed for it. I think that the Constitution pretty clearly took a hands-off approach to such concerns, on the theory that the incentives in favor of representation would spur the States to make prudent choices for themselves. The general tenor of other constitutional provisions in this arena favor local decision-making and empowering legislative bodies to make bad decisions (e.g., "the Electors [for US House of Representatives] in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature"; "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof"; "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors"; the Constitution's silence on the re-sizing the House).
Pseudolus wrote:Point 3:
  • HouseSizeWonk wrote:I think the key is how you define "failure of the Legislature of such State."
    Reconsidering the only two options when a Vacancy might occur (i.e. either the State's Legislature is in session or not in session) and reconsidering the only two options for filling a Vacancy while the State's Legislature is in session (i.e. the State's Legislature either succeeds in filling the Vacancy or does not), it seems pretty clear how "failure of the Legislature of such State" is to be defined. In fact, I'd go so far as to conclude that there cannot be any debate on the definition of "failure of the Legislature of such State"; for either the State's Legislature has filled or has failed to fill the Vacancy, regardless of the ongoing reasons for the failure. Any debate would not affect the only two possible outcomes, therefore I see no reason why you believe "the key is how you define 'failure of the Legislature of such State.'"
My point is that they may not see it as a "failure." The Legislature may see it as a "success," because they'd rather have nobody hold the seat at all than someone they oppose. Your language is "If Vacancies . . . happen by failure of the Legislature of such State," but the Legislature may not consider it a failure that the seat is vacant -- it may be a triumph! Indeed, any time gridlock prevents the seat from being filled, that's exactly what the Legislature wants: each side would rather nobody have the seat than the unsatisfactory office-holder. Moreover, if the Legislature hasn't elected someone as of the first day of the congressional session, is that a "failure"? Or are they just taking their time? If a natural disaster or some other catastrophe prevents the Legislature from meeting at all, does that mean that the vacancy has happened "by failure of the Legislature"?
Pseudolus wrote:Point 4:
  • Furthermore, I believe your proposed changes actually create more reasons for argument (i.e. the gridlocked State Legislature now can additionally argue about whether or not to defer to the Executive, which obviously those of a different political party will not want to do) and provide the gridlocked Legislature an inherent excuse to remain in gridlock (i.e. better to leave the Vacancy than to allow their Executive to appoint a candidate potentially harmful to one side's views).
Point 5:
  • Moreover, all the benefits your language makes over the pre-17th Amendment Constitution are already included in my original proposed language (i.e. there is the inclusion of the additional safety valve proviso, and the State's Legislature still is accountable for why they could not make a Appointment), except my language additionally provides that the Executive along with the Legislature be accountable for the ongoing Vacancy.
Considering my proposed language has all the benefits of your language plus more and considering it has none of the drawbacks of your language, I see no reason to adjust the proposed amendment's language at this time. If my reasoning is unsound, please correct me.
As noted above, my primary concern is with the issue of construing a vacancy to the Legislature's "failure." As soon as you introduce a causality component, you give lawyers something to argue about. I'd rather have the language simply focus on the fact of the vacancy itself, regardless of the cause. My point was only that I think it'd be better to change as little as possible. My language imperfectly expressed what I had in mind, though; the proviso I intended should have read something like: "Provided, That, in addition to the Executive authority's power to make temporary appointments in the case of a vacancy occurring while that State's Legislature is in recess, the legislature of any State may empower the Executive authority thereof to make temporary appointments to fill vacancies occurring at any other time, until such time as the legislature shall fill the vacancy."

I am not really happy with my own language either, but I am uncomfortable with the causality language that you propose.
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

HouseSizeWonk wrote:I think the key is how you define "failure of the Legislature of such State."
Pseudolus wrote:Reconsidering the only two options when a Vacancy might occur (i.e. either the State's Legislature is in session or not in session) and reconsidering the only two options for filling a Vacancy while the State's Legislature is in session (i.e. the State's Legislature either succeeds in filling the Vacancy or does not), it seems pretty clear how "failure of the Legislature of such State" is to be defined. In fact, I'd go so far as to conclude that there cannot be any debate on the definition of "failure of the Legislature of such State"; for either the State's Legislature has filled or has failed to fill the Vacancy, regardless of the ongoing reasons for the failure. Any debate would not affect the only two possible outcomes, therefore I see no reason why you believe "the key is how you define 'failure of the Legislature of such State.'"
My point is that they may not see it as a "failure." The Legislature may see it as a "success," because they'd rather have nobody hold the seat at all than someone they oppose. Your language is "If Vacancies . . . happen by failure of the Legislature of such State," but the Legislature may not consider it a failure that the seat is vacant -- it may be a triumph! Indeed, any time gridlock prevents the seat from being filled, that's exactly what the Legislature wants: each side would rather nobody have the seat than the unsatisfactory office-holder. Moreover, if the Legislature hasn't elected someone as of the first day of the congressional session, is that a "failure"? Or are they just taking their time? If a natural disaster or some other catastrophe prevents the Legislature from meeting at all, does that mean that the vacancy has happened "by failure of the Legislature"?
Okay, I think the problem is that you're attempting to interpret the language "Vacancies happen by failure of the Legislature of such State" in terms of the results of the Vacancy and not the cause of the Vacancy. And, while the Legislature is in session, the only way a Vacancy could happen for any significant amount of time is through a failure of the Legislature. Whether the Legislature chooses to interpret the resulting Vacancy as a success or not is irrelevant, the cause of the Vacancy is the same: the Legislature failed to appoint. Now, the Legislature may believe they succeeded by failing to appoint someone but that doesn't change the fact that they failed to appoint someone.

For example, let's say I don't want to graduate school and choose to fail a big exam in pursuit of that goal, I may look at the failure of the test as a success; but, despite my interpretation of the events as a success, the fact remains that I still failed the test. If I choose not to pay taxes and the IRS doesn't catch me, I might consider it a great personal success; but the fact remains, I failed to pay taxes. Regardless of how the Legislature might interpret the results of a Vacancy, the fact is the Vacancy happens because they failed to appoint someone to represent their State. See what I mean?

However, let's pursue your worst case scenario:
  • While a State's Legislature is in session, the Executive of that State makes a temporary Appointment to fill the Vacancy. And, rather than simply replacing the Executive's temporary Appointment, the Legislature opts to sue the Executive on the grounds that he/she never had the authority to make such a temporary Appointment.
Am I correct in assuming this is what you're worried about? Because at this point, the State's Legislature is now in the awkward position of having to prove that they didn't fail to appoint someone, but instead purposely chose to leave their State without representation. (Pardon me, but I can't imagine any State's Legislature pursuing such a humiliating case; and, even if one ever does opt to sue the Executive on those grounds, I can't fathom that the United States Supreme Court would actually rule in favor of that ludicrous argument that the "failure" to appoint was actually a successful Vacancy.)

Honestly, I think this is a non-issue. Because if such a ludicrous scenario played out (an admittedly rare, if not unfathomable occurrence), then--in order for the Executive to be stripped of his/her power to make temporary Appointments--the Supreme Court would have to rule that the U.S. Constitutional language of "by failure of the Legislature" is subject to the interpretation of that State's Legislature, which would mean that the Legislature has the option of allowing the Executive to make a temporary Appointment or can refrain from granting the Executive such authority, which is exactly the type of language you proposed when you re-wrote the amendment. So, no matter how the Supreme Court rules, we're still in a great position; because either way, both the Executive and the Legislature have to answer for why they didn't take the option of a temporary Appointment.

So again, what's your concern? I really don't get it.
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Re: Was the 17th Amendment properly ratified?

Post by HouseSizeWonk »

Pseudolus wrote:However, let's pursue your worst case scenario:
  • While a State's Legislature is in session, the Executive of that State makes a temporary Appointment to fill the Vacancy. And, rather than simply replacing the Executive's temporary Appointment, the Legislature opts to sue the Executive on the grounds that he/she never had the authority to make such a temporary Appointment.
Am I correct in assuming this is what you're worried about? Because at this point, the State's Legislature is now in the awkward position of having to prove that they didn't fail to appoint someone, but instead purposely chose to leave their State without representation. (Pardon me, but I can't imagine any State's Legislature pursuing such a humiliating case; and, even if one ever does opt to sue the Executive on those grounds, I can't fathom that the United States Supreme Court would actually rule in favor of that ludicrous argument that the "failure" to appoint was actually a successful Vacancy.)
I don't see where the legislature would have any obligation to prove anything as a matter of fact. They could argue, for example, that it's the governor's job to prove that the Legislature failed before s/he can exercise the appointment power, and in the absence of such proof, the power is absent and the appointment is null and void.
Pseudolus wrote:Honestly, I think this is a non-issue. Because if such a ludicrous scenario played out (an admittedly rare, if not unfathomable occurrence), then--in order for the Executive to be stripped of his/her power to make temporary Appointments--the Supreme Court would have to rule that the U.S. Constitutional language of "by failure of the Legislature" is subject to the interpretation of that State's Legislature, which would mean that the Legislature has the option of allowing the Executive to make a temporary Appointment or can refrain from granting the Executive such authority, which is exactly the type of language you proposed when you re-wrote the amendment. So, no matter how the Supreme Court rules, we're still in a great position; because either way, both the Executive and the Legislature have to answer for why they didn't take the option of a temporary Appointment.

So again, what's your concern? I really don't get it.
The difference being that my language attempted to require the Legislature to create a pre-commitment strategy, not an ad hoc "we consider this time a failure and this time a success" approach to determining whether the Executive has authority to make an appointment.

Mostly my concern is keeping the matter out of the courts. With no "failure" language, there's no argument to be made about it. I'll put it this way: if the road to * is paved with good intentions, then the road to creaky constitutional provisions is paved with well-meaning efforts at solving problems. A law professor friend of mine has a forthcoming book which touches on the subject (i.e., it is one chapter of 6 or 7), particularly in regards to serious and potentially debilitating problems in the 25th Amendment. Another example (not in the book) would be the peculiar situation we'd be in if the retrocession movement ever succeeded in sending some portion of the District of Columbia back to Maryland, and whether the inevitable handful of residents of any vestigal federal enclave that's left behind would be entitled to electoral votes under the 23rd Amendment.

Apparently the software does not like references to the place in the afterlife thought to be a place of pain and suffering, as the word got substituted for an asterisk.
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Re: Was the 17th Amendment properly ratified?

Post by USeagle »

I never took the the election of our State Representatives (Senators)to be by appointment. Article 1 Section 3 states "chosen by the Legislature" it is the same as the people of the State chosen their Representative under Article 1 Section2 "chosen every second year by the People of the several States"

I have never understood that argument "gridlocking the State", we would not have gridlock if the Senators were elected by the Legislature, just as we (the soverigen) elect the Representatives of our States. We are not appointing a member to SCOTUS... we are deligating our soverign rights to a higher level thru our State Legislatures; who are acting on our behalf.
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Re: Was the 17th Amendment properly ratified?

Post by TheTrucker »

JEQuidam wrote:This author offers a very interesting supposition about the 17th Amendment: She asserts that it may have not been properly ratified! If that is so, then the states could declare it null and void.

Read what Devvy Kidd wrote in Why Seventeenth Amendment Can't Be Repealed. ( October 1, 2010)
The lengths to which the conservative "right" will go in order to "justify" a conservative proposition is quite amazing. Whether the 17th amendment was ratified by the proper number of states before or after the declaration of its ratification was formalized is entirely irrelevant. Whether some states disagreed or did not ratify is also of no consequence. Just as with Article the First, at any time that there is a count of the requisite number of ratifying states then at that point the amendment is deemed ratified. To claim that the amendment is void because the declaration of ratification was premature is simply crackpot rightardidness; a continuing effort to undermine society using fear and suspicion with a constant flailing of one conspiracy after another.

I want the 17th amendment repealed in proper order. But my reason for that desire is exemplified by the Citizens United decision from the Supremes. I also believe that the Citizens United decision was correct when viewed as a freedom of speech issue. Unfortunately, it granted citizenship or person rights to non US entities such as the Chinese government. Multinational corporations and governments other than the representative body of the US government should not be allowed to participate in US elections in any direct way. And that most certainly includes campaigning and campaign funding. This same observation applies to state governments if the states are to be in any way sovereign. But the solution lies in the increase of the number of popular representatives of the people in direct elections; the same solution as the expansion of the House membership. It is much more difficult to buy an expanded legislature than it is to buy one senator. The 17th amendment was probably the greatest act of foot shooting in the history of progressive government.
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

USeagle wrote:I have never understood that argument "gridlocking the State", we would not have gridlock if the Senators were elected by the Legislature, just as we (the soverigen) elect the Representatives of our States. We are not appointing a member to SCOTUS... we are deligating our soverign rights to a higher level thru our State Legislatures; who are acting on our behalf.
Please look into history because State Legislatures often could not agree whom they would choose as their U.S. Senator and thus their U.S.Senate seat would often remain vacant at crucial times where votes were needed by the nation at large. Since the State Legislatures are voting on behalf of their State and not themselves, selection of U.S. Senators is not like a normal vote where majority wins. Each State Legislature has and had their own rules for how their U.S. Senators would be chosen. Altering those rules so that a decision could be made that half of the Legislature is against wouldn't be satisfactory and may even be shortsighted. Gridlock happened regularly. In some states more than others.
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Re: Was the 17th Amendment properly ratified?

Post by JEQuidam »

Pseudolus wrote: Gridlock happened regularly. In some states more than others.
Fine, if the state legislature cannot reach agreement within some specified timeframe (e.g., 30 days), then the Governor should be allowed to designate the Senator(s). Problem solved.
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

JEQuidam wrote:Fine, if the state legislature cannot reach agreement within some specified timeframe (e.g., 30 days), then the Governor should be allowed to designate the Senator(s). Problem solved.
Yep, that's why I proposed we support an new Amendment to the Constitution with the following language:
  • Section 1.
    The seventeenth article of amendment to the Constitution of the United States is hereby repealed.

    Section 2.
    If Vacancies in the representation of any State in the Senate happen by failure of the Legislature of such State, the Executive authority of such State may make temporary Appointments until the Legislature of such State fills such Vacancies.

    Section 3.
    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.
I didn't include a specified time frame before the Governor has the option to make temporary appointments, because I did not want to prevent the States from having representation if an important vote came up during that constrained time frame. If the Legislature does not appoint, and the Governor chooses to exercise his option to make a temporary appointment, and the Legislature is unhappy with the Governor's selection, then the Legislature obviously can and likely would immediately make their own proper appointment to replace the Governor's temporary one.
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Re: Was the 17th Amendment properly ratified?

Post by dogtired »

It appears this thread has shifted off subject to the appointing of senators is the 17th was repealed or voided.

The book, THE BALTIMORE PRINCIPLES by Carl Douglas, addresses the old deadlocks in making senate appointments. He suggests the amendment to repeal 17 should include two additional clauses, one for appointing and the other for removal.

The state's upper house should narrow their choices of candidates down to two. Then invite the lower house in for a joint session vote. This would do away with the "have to pass each house" thing which did create all of the deadlocks. This would apply to filling vacancies as well. Personally, I would leave the governor completely out of the selection process.

The other clause would allow a state to remove a sentor should he fail a vote of confidence by two-thirds majority in each house. No reason has to be given and nothing has to be proved. Either they have confidence in him or they lost it. He'd really have to have done something stupid to get the legislature angry enough to fail by two-thirds in both houses!
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Re: Was the 17th Amendment properly ratified?

Post by sbozich »

Paul wrote:If we're going to address the issues with the election of senators, then address all of the issues. I don't like it that they serve 6-year terms. The world can really change in 6 years and we tend to forget what happened 6 years ago. The senators need to be accountable at all times in all things to the states. This helps to prevent sudden 'surprise' bills, like the PATRIOT Act, from being passed.
Interestingly, I was thinking about this very topic just this morning. If the 17th were repealed, and there were a dramatic shift in the composition of a state legislature between the six year election, there is nothing to prevent said state from recalling an unpopular Senator.

The purpose of the six-year term is to make the Senators less subject to the vagaries of popular politics, just as the two-year term of a Representative is designed to ensure that the people are properly heard.
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Re: Was the 17th Amendment properly ratified?

Post by USeagle »

Pseudolus wrote:
USeagle wrote:I have never understood that argument "gridlocking the State", we would not have gridlock if the Senators were elected by the Legislature, just as we (the soverigen) elect the Representatives of our States. We are not appointing a member to SCOTUS... we are deligating our soverign rights to a higher level thru our State Legislatures; who are acting on our behalf.
Please look into history because State Legislatures often could not agree whom they would choose as their U.S. Senator and thus their U.S.Senate seat would often remain vacant at crucial times where votes were needed by the nation at large. Since the State Legislatures are voting on behalf of their State and not themselves, selection of U.S. Senators is not like a normal vote where majority wins. Each State Legislature has and had their own rules for how their U.S. Senators would be chosen. Altering those rules so that a decision could be made that half of the Legislature is against wouldn't be satisfactory and may even be shortsighted. Gridlock happened regularly. In some states more than others.
Since the State Legislatures are voting on behalf of their State and not themselves, selection of U.S. Senators is not like a normal vote where majority wins. Each State Legislature has and had their own rules for how their U.S. Senators would be chosen.
This is where we part ways…. The State Legislators are not voting on behalf of that State ……they should be voting on behalf of the constituents in that district that elected them. In turn, these entire districts represent the State!

We the sovereign delegate our authority to our State and Federal Representatives.
Is this not our Republican form of Government that was guaranteed under Article 4, Sec 4
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

USeagle wrote:
Pseudolus wrote:Since the State Legislatures are voting on behalf of their State and not themselves.
This is where we part ways…. The State Legislators are not voting on behalf of that State ……they should be voting on behalf of the constituents in that district that elected them. In turn, these entire districts represent the State!
I agree with that entirely, so there's no parting of ways. I was merely using a shorthand for the entire group of State Legislators who collectively represent their entire state (meaning the combined public within the individual districts they individually represent). It was just my way of saying these State Legislators aren't voting on behalf of themselves alone or the wishes of their political parties.
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Re: Was the 17th Amendment properly ratified?

Post by Pseudolus »

dogtired wrote:It appears this thread has shifted off subject to the appointing of senators is the 17th was repealed or voided.

The book, THE BALTIMORE PRINCIPLES by Carl Douglas, addresses the old deadlocks in making senate appointments. He suggests the amendment to repeal 17 should include two additional clauses, one for appointing and the other for removal.

The state's upper house should narrow their choices of candidates down to two. Then invite the lower house in for a joint session vote. This would do away with the "have to pass each house" thing which did create all of the deadlocks. This would apply to filling vacancies as well. Personally, I would leave the governor completely out of the selection process.

The other clause would allow a state to remove a sentor should he fail a vote of confidence by two-thirds majority in each house. No reason has to be given and nothing has to be proved. Either they have confidence in him or they lost it. He'd really have to have done something stupid to get the legislature angry enough to fail by two-thirds in both houses!
I'm against the idea of telling a state's legislature how they should appoint. The particulars of state politics vary enough that such an issue should be handled internally within the state according to their own peculiarities. The Constitution need only tell them that they are to appoint a U.S. Senator. I added the bit about the governor occasionally assisting in a deadlock (as he does when the legislature is out of session), but I made sure not to make that a requirement. I've merely closed the gridlock loophole according to the state executive's temporary appointment method already contained within the U.S. Constitution. The Governor is free to leave the seat empty if he so chooses, though his constituents may hold him accountable for such a decision. And the Legislature is always free to replace the Governor's temporary appointment at any time. Just as they currently are both able in the U.S. Constitution.

I also see no reason to add a Constitutional clause for recall, because that too can be handled at the state level. The Constitution does not prevent recalls and the exact methods for Senatorial recalls should be handled according to the peculiarities of the states, not dictated by the federal government to the states.

When in doubt, I believe its best to keep the Constitution as simple as possible. Carl Douglas's suggestions for how a legislature appoints and recalls are worthwhile suggestions that the states might want to use as guides in writing their own state constitutions; but those suggestions are a bit too authoritarian to be contained within the U.S. Constitution itself, which is meant to control the federal government and meant not to control the individual states in running their own state affairs.
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Re: Was the 17th Amendment properly ratified?

Post by JEQuidam »

sbozich wrote: If the 17th were repealed, and there were a dramatic shift in the composition of a state legislature between the six year election, there is nothing to prevent said state from recalling an unpopular Senator.

The purpose of the six-year term is to make the Senators less subject to the vagaries of popular politics, just as the two-year term of a Representative is designed to ensure that the people are properly heard.
Stephen, I agree with you entirely. It's important for people to realize that the Senator can be recalled by the state legislature, and that is a good thing IMO.

That being said, it may be prudent for a super-majority vote to be required, or the recall is not effected until the replacement Senator is approved by the state legislature.
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