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).