Proposed Amendment #2: Repeal the 17th Amendment

The Text

Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.

Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.

Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.

Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.

The Problem
The Constitution originally provisioned for state legislatures to select each state's two senators. The idea was for the Senate to represent the interests of states as states, not simply as another chamber representing the same constituency as the House of Representatives. The Federalist Papers speak time and again of checking the passions of men and balancing the branches of government by using competing interests and differing power sources to prevent one group from gaining domination. A Senate that was, in essence, composed of ambassadors from the several States provided a balance in the deliberation of federal legislation and foreign policy because the origin and composition of its membership was different from that of the House.

Corruption in the senatorial selection process and deadlocked legislatures led to states going years without representation in the Senate and the perception that the Senate did not represent the interests of the People. Agitation for changing the way Senators were selected grew throughout the 19th century, culminating with the Progressive Movement of the early twentieth century and the passage of the Seventeenth Amendment to the U.S. Constitution in 1913. Direct election of U.S. senators was instituted, removing the place of the States in the federal scheme (left only with the chance to lobby, negotiate, or sue) and effectively turning the Senate into an extension of the House of Representatives.

There are several areas impacted by the passage of the Seventeenth Amendment. I will review each of them in turn, but the affected areas as I see them are as follows:

• Nature of the Senate


• federalism


• Campaign finance

Nature of the Senate
Since the Senate derives its base of power and support from the People, the Senate is no longer "a salutary check on the government" (Federalist 62) because senators are not independent of the passions of the times or the direct influence of the public. A senatorial selection process driven by state legislatures in careful deliberation and cool contemplation has a better chance of producing a Senate of the brightest minds and most talented people from all segments of society than do yet another round of direct elections driven by the same old political process. Politics has an important place in our democratic republic, but so does competent thought, careful debate, and independent questioning of the prevailing opinion.

Witness,

• The Senate no longer considers the constitutional appropriateness of legislation, affecting the balance of power between Washington, D.C., and the states and arguably leading to a more active Supreme Court, which finds itself ruling on legislation that probably never should have been passed;


• Rather than the Senate serving as a judicious, independent and legislatively empowered investigative body, independent commissions (e.g., BRAC - the Base Closure and Realignment Commission), study groups (e.g., the Iraq Study Group or 9/11 Commission), and the recently-lapsed independent counsel law are needed when our government needs to transcend politics.

The Senate is effectively a mirror of the House, passing legislation based on its popularity and providing no thought that transcends the petty Talking Points of the day.


Federalism
Since the passage of the Seventeenth Amendment, the growth of the federal government has been exponential and all pretenses of a Congress with specific, enumerated powers as outlined in Article I, Section 8 of the Constitution have been thrown out the window. The "necessary and proper" clause is the constitutional limit of Congress's power, and the definition and scope of this clause are expanded with the needs of the country. There is no longer a structural component of the federal system that is in place to push back on the expansion of federal power and to represent and support the place of the States in the federal system.

A healthy federal system facilitates several things:

• local issues and concerns are managed and decided by local jurisdictions, leaving federal energy free to focus on more national concerns and priorities (witness the manner in which abortion has entangled presidential politics and judicial nominations);


• power is diffused and not concentrated;


• proving grounds for future national leaders among state and local governments;


• competition among the States, encouraging innovation and creative problem-solving;

Beyond the implementation of more parchment barriers in the form of Article I, Section 8 or continued reliance on the shifting sands of the Supreme Court, a structural mechanism to help define the shifting horizons of federal and state power would reinstate federalism as an active, primary part of the legislative process and renew appreciation for its importance to the American scheme of governance.

Campaign finance
The direct election of senators arguably removed the problem of bribery (at least from among the ranks of the state legislators), but now that senators campaign among a wider electorate, the costs of running senatorial campaigns have sky-rocketed. Among elected positions in America, Senate campaigns are second in expense only to presidential campaigns (which are beset with their own issues and problems).


The Explanation
Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.
This section simply repeals the provisions of the Seventeenth Amendment and returns the senatorial selection process to the original constitutional prescription.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.
The language of this section echoes that of the original selection provisions in Article 1, Section 3. The only additional clause is a specific grant of power to the state legislatures of reappointment of a senator. This is designed to be coupled with the removal clause of the next section to make clear that a U.S. senator would serve at the pleasure of the state legislature that sent her. A senator's primary job in the U.S. Senate would be to represent the interests of her State, as a State.

Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.
The provisions of this section are an addition to the language of the original constitutional scheme. Under this section, a state legislature would be able to remove a senator that it was dissatisfied with or just wanted to replace before the end of the senator's six-year term. As long as the majority of each state legislative chamber voted to recall the senator, the senator's removal would be final and not subject to repeal.

Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.
In 1866 Congress responded to problems of state legislature bribery and deadlock by passing a law regulating the manner in which states selected their senators. The legislation required that each chamber of the state legislature meet separately and select a senator in open vote. If the houses of the legislature did not select the same nominee, the chambers were then to meet in joint session every day until a senator was selected by majority vote.

Ironically, the congressional act exasperated the very problems it was enacted to solve. Perhaps the requirement for a joint session frustrated the constitutional principle of checks and balances. Or perhaps requiring a majority vote rather than a plurality instantiated an impossible standard. Whatever the cause, the cases of deadlocked legislatures, accusations of bribery, and incidents of lost state representation in the Senate increased markedly after 1866. Congressional meddling toppled the system of senatorial selection that worked relatively well before the Civil War.

This section is included in this proposed amendment to avoid the temptation in Congress to fix every problem in American society through the passage of a new law. Even if state legislatures are deadlocked or beset with bribery and corruption, it is one of the things that should be left to the state legislatures to work out themselves. After all, it is the State itself that would suffer from a loss of senatorial representation, and it would be state legislators who broke bribery laws or committed corruption who would face jail time if proven guilty in a court of law. Let the political and judicial processes apply the pressure needed to move past these problems.

Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
This last section is in place to facilitate transition in the case that this amendment is ratified as part of the Constitution.

Other resources

• Democratizing the Constitution
  
• FindLaw Forum: Should the 17th Amendment be repealed?
  
• Repeal the 17th Amendment blog

Asking the wrong questions. Again.

SCOTUSblog reports on in the case of Medellin v. Texas (06-984) and arguments before the U.S. Supreme Court over whether the president has the power to dictate the outcome of state judicial proceedings based on U.S. treaty obligations. The Fifth Circuit and the Texas Court of Criminal Appeals (the highest state court in Texas for criminal cases) both ruled that the President does not have authority to direct state courts to follow a ruling by the International Court of Justice. Lyle Dennison of SCOTUSblog writes: "In an amicus filing in the case of Medellin v. Texas (06-984), the government called for reversal of a Texas state court ruling that Bush did not have the power to ensure that state courts complied with the international tribunal's [World Court's] decision on the rights of foreign nationals arrested and prosecuted within the U.S. for crimes here."

The Administration is arguing that "the Texas ruling will undermine the President's authority to determine 'how the United States will comply with its treaty obligations.'" Their theory is that the treaty power trumps any federalism concerns.

My concern is that the Administration is, once again, building a strawman argument. Of course treaty obligations trump issues of federalism. But this is not the point that should be argued before the Supreme Court. The true question is whether the executive branch can dictate to the judicial branch. If someone asked if the president could tell the U.S. Supreme Court how to decide one of its cases, the questioner would be laughed out of the room. It sounds absurd because it is.

The judicial branch is an independent branch of government, separate from the executive power. The fact that in this case the judicial branch is that of an independent state only adds to the reasons why the Administration's arguments here are patently ridiculous.

Proposed Amendment #1: War Powers Amendment

The Text
Sect. 1. The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.

Sect. 2. The President shall periodically report to the Congress on the status of troop deployments and hostilities in which United States Armed Forces are involved, as well as on their scope and duration, but in no event shall he report to the Congress less often than once every six months.

Sect. 3. Men 18 years of age shall give two years of service to the military branch of their choice or to the peace corps, but acts of conscription beyond this are prohibited unless the privilege of the writ of habeas corpus shall have been explicitly suspended in accordance with this Constitution.

Sect. 4. The Congress shall have power to enforce this article by appropriate legislation.

The Problem
The question of going to war is a grave concern, which involves the entire nation and can potentially alter every aspect of society, as did the Revolutionary War, the Civil War, and World War II. As they play out and unfold, wars that were once popular can become unpopular and deeply divide the populace, as have the Vietnam War and the Iraq War. For these reasons, the Founding Fathers envisioned Congress occupying a central role in determining questions of war and peace and foreign policy.

While British constitutional practice up to the eighteenth century viewed foreign policy and war-making authority to be the prerogative of the crown, the Founders extended their desire for checks and balances and separation of power to matters of war and sought to keep the United States out of unpopular, divisive and unnecessary wars by giving the people's representatives a role in the decision-making process.

Section 8 of Article I of the Constitution gives the Congress the power:

• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;


• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;


• To provide and maintain a Navy;


• To make Rules for the Government and Regulation of the land and naval Forces;


• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;


• To provide for organizing, arming, and disciplining the Militia,...

In contrast, Section 2 of Article II of the Constitution provides that the President "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." So the balance between competing interests is set. The President commands the Armed Forces of the United States, but Congress must fund the military for there to be Armed Forces for the President to command. The President has the ability to quickly respond to military crises, but the Congress must approve a state of war because war changes the legal footing upon which the country operates. The President conducts and controls the day-to-day operation of a war, but the Congress makes the law and rules governing the use of military forces.

Checks and balances are not always convenient, however, and Presidents and Congresses, particularly since the mid-20th century, have conspired to alter the constitutional balance of war powers. With rare exceptions, Congress has increasingly been reluctant to take the possible political heat required to fulfill its constitutional war powers. Rather than a partner in making decisions of war, Congress has become a de facto rubber stamp of Administration actions, passing "authorizations for the use of force" or, worse yet, toothless non-binding resolutions. Only two instances in the past sixty years come to mind in which Congress acted to cut funding to influence U.S. policy in a war situation: in the early 1970's to end the Vietnam War and in the 1980's to end U.S. aid to the Contras in Nicaragua.

In addition to Congress's abrogation of constitutional authority, Presidents have worked to increase their own constitutional power by playing semantic games. Rather, than war in Korea, President Truman engaged in "police actions" under the authority of the United Nations Security Council. LBJ fabricated the Gulf of Tonkin Incident to move Congress to pass a resolution, which the Johnson Administration subsequently used as the legal authority it needed to escalate American involvement in Vietnam. In the wake of the Vietnam War, Congress showed a rare moment of backbone and passed the War Powers Act in 1973, which forbids prolonged military operations without a congressional declaration or resolution of war. Nevertheless, Presidents have repeatedly refused to acknowledge the constitutionality of the Act.

As a consequence, Congress and the executive branch have settled into a new "understanding" that has generally held since the early 1980's; the President is free to use the military wherever in the world he sees fit, so long as he obtains a congressional resolution for "long-term operations" (a rather vague term whose meaning can shift with the circumstances), aka, a war. The underlying problems which have led to this new balance of power are easy to see:

1. In this computerized age with ICBM's and atomic warheads, it is foolish not to maintain a standing army, a situation that the Founders thought dangerous to liberty;
2. Congress is filled with career politicians who are too concerned about "political fallout" to stand up to challenge or shut down presidential military ventures and represent the interests of the people;
3. The lines between the executive and legislative functions are blurring, and too many people view the Congress as a "rubber stamp" to Administration policy, much as it would be if we were set up as a parliamentary system of government;
4. Language has evolved over the past two centuries so that the constitutional language that talks about war is no longer comprehensive enough. There are military activities short of war which are simply not covered by the Constitution, and Letters of Marque and Reprisal are anachronisms that are no longer relevant; and
5. While Congress currently has the power to "declare war," some supporters of presidential power argue that this is different from "making war," which they say is reserved to the President as Commander-in-Chief.

The Explanation
The proposed war powers amendment herein presented would not solve all of these problems. For example, a congressional term limits amendment might be worth considering to address Problem 2. However, it is clear that the language of the Constitution should be updated to cover modern-day realities of the interaction between the executive and legislative branches. A section-by-section analysis of the proposed amendment will outline which of these problems can be addressed if the war powers amendment was ratified.

Sect. 1. The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.

This amendment does not alter any of the existing war powers. Congress still funds the military and its operations. This power is in line with the general principle that the legislature controls the purse. The President is still the Commander-in-Chief. In principle, this is an obvious executive action and requires the accountability, energy and efficient decision-making the President has at his disposal. It is simply not possible to conduct a war by committee, least of all by Congress.

However, the brake that the Founders put in place to slow the country's entry into war has worn down to nothing and needs to be reassessed. The language of section 1 is meant to remove any distinction between "make war" and "declare war." Formally declaring war seems to be an old-fashioned idea these days, and sending troops onto the battle field is the act that makes a war - not a congressionally-approved declaration. This section seeks to make clear that however war is "made," the President cannot do it without the express consent of Congress. The last clauses of the section attempt to make provision for emergency situations in which delay and consultation would prove disastrous to the nation, but even this should be reserved for extraordinary situations in which congressional consultation would be sought as soon as humanly possible (facilitated by Section 2).

Sect. 2. The President shall periodically report to the Congress on the status of troop deployments and hostilities in which United States Armed Forces are involved, as well as on their scope and duration, but in no event shall he report to the Congress less often than once every six months.

This section implements, in principle, the reporting provisions of the current War Powers Act. The first section focuses on wars of the traditional sense in an effort to retain the President's ability to respond to situationd that require quick, decisive action. This second section, however, requires reporting for any type of military operation whatsoever (arguably excepting training exercises and war games). The idea is that initial and periodic presidential reporting to the Congress will keep the state of the war front-and-center of the American political discussion. It will also work to keep the Administration above-board in the execution of the war, bringing the conduct of the war into the light of day. Corruption and incompetence are too great a temptation if accountability is removed from the equation.

Sect. 3. Men 18 years of age shall give two years of service to the military branch of their choice or to the peace corps, but acts of conscription beyond this are prohibited unless the privilege of the writ of habeas corpus shall have been explicitly suspended in accordance with this Constitution.

This provision requires every 18-year old male to give two years of military or peace corps service, but beyond this, limits the circumstances in which a draft can be instituted. While this does not directly address war powers imbalances, it would work to change the way Americans look at war. The populace would be more educated in military matters and would have a more direct stake in what our political leaders did with the military - men through direct service and women because they would probably know several people (fathers, brothers, husbands, sons - even other women who voluntarily enlisted) in the military. In addition, limiting the availability of the draft and, by extension, limiting the size of the military, Congress and the President would, in theory, be more cautious about committing the limited resources of the Armed Forces. War would truly be the last resort to commit the precious resources of the military. Of course, this theory is arguable, at best, since this has proved to be a hindrance in committing the overwhelming forces we needed in 2003-2005 to subdue Iraq and defeat the insurgency there. In any case, limiting the draft would still work to protect the people's civil liberties and to limit the power of politicians. Only a situation so dire that would permit the suspension of habeas corpus would be a situation in which the institution of the draft would be constitutionally permissible.

Sect. 4. The Congress shall have power to enforce this article by appropriate legislation.

This section is the obligatory clause that gives Congress the explicit power to implement the provisions of this amendment. Without this, future Presidents would undoubtedly continue to rely on confusion and obfuscation to skirt the constitutional distribution of war powers.

Proposed Constitutional Amendments

This site is dedicated to exploring the theory of political science and governing. We have spent a good deal of time expounding the vision of the Founders and the Constitution, lamenting the lack of commitment to and education of fundamental constitutional principles. Nevertheless, the Founders were not divine, and the Constitution is not scripture. Part of this exploration must also entail consideration of parts of the Constitution that either do not work as planned or have grown antiquated.

I would like to explore this vein of constitutional theory through a new series exploring proposed amendments that might be added to the Constitution to address what we see as defects or shortcomings. I will begin with four proposed amendments, and then the series will be on-going as analysis, discussion, and new ideas percolate to the top.

In the first four entries of this series, I'll adopt a specific format to provide a framework for the discussion. I'll explore the problem that each proposed amendment seeks to resolve, and why I think each respective amendment would resolve it. However, the power of the constitutional amendment process is the collaborative effort involved in drafting, considering, debating, and ratifying the amendment, so any constructive comments, criticism, or suggestions are welcome.

The four proposed amendments that will be under consideration are as follows:

• War Powers Amendment


• Repeal of the 17th Amendment


• Balanced-Budget Veto Amendment


• Congressional Power Amendment