Time: Tue Nov 26 06:03:16 1996
To: libertylaw@www.ultimate.org
From: Paul Andrew Mitchell [address in tool bar]
Subject: 17th Amendment [sic]
Cc: 
Bcc: 


>(snipped and reconfigured)
>
>>>>Originally, the "federal" or compounded aspect
>>>>of our legislative government consisted largely 
>>>>of one clause in the Constitution, which has
>>>>subsequently been ammended:
>>>>
>>>>        Orginally, Senators were chosen by the
>>>>        State legislatures to represent the state's 
>>>>        interest. This was changed by Amendment 17
>>>>        in 1913 to "popular" direct election.
>>>>
>>>>In effect, this removed one of the last vestiges of a 
>>>>compounnd federal legislative government from our
>>>>system's structure. Taken with other events of this
>>>>era, it would seem to reinforce the argument that
>>>>a legal incorporation occurred, in effect, eliminating
>>>>State citizenship as a separate possibility.
>>>
>>>Objection.  What a leap you take here!
>>>See Gardina v. Board of Supervisors of
>>>Electors:  The highest exercise of a 
>>>state's sovereignty is to declare who
>>>are its citizens. 
> 
>>correction:  Gardina v. Board of Registrars,
>>160 Ala. 155, 48 S. 788, 791 (1909)
>>
>Paul, note your case predates ratification 
>and certification of the Amendment in 1913.

That may be true, but I contend that 
this proposed "amendment" was unique
for requiring 100% of the Union States
to ratify;  anything less was a violation
of the clause guaranteeing that no State
shall be denied its equal suffrage within
the U.S. Senate.  We have already briefed
this question, but we decided not to file
it with the Supreme Court, due to a flame
war we anticipated with the lead counsel
on the case we were writing.  Moreover,
there are plenty of cases in which the 
U.S. Supreme Court preserved the sovereignty
of the Union States, notwithstanding the
declared ratification of the 17th "amendment".
See Chapter 11 in The Federal Zone for proof.

/s/ Paul Mitchell


>
>Besides, in Wisconsin Public Intervenor v. 
>Mortier (No. 89-1905, U. S. Supreme Court (1991)
>regarding the Federal Insecticide, Fungicide and 
>Rodenticide Act, the court stated that the Supremacy 
>Clause of the U.S. Constitution, Art. VI, Cl.2, 
>allows Congress to expressly preempt state law by 
>specifically stating its intent to do so in the
>federal statute; or when the entire scheme of 
>federal law is so pervasive that a reasonable 
>interference exists that Congress left no room 
>for states to supplement the federal law and that it
>is impossible to comply with both the federal 
>and state law.
>  
>BTW, 17th amendment
>>>would have required ratification by
>>>100% of the Union States, because otherwise
>>>any State opposed to it would be denied
>>>equal suffrage within the Senate.  See
>>>Article V, Clause 1. (snipped)
>>>/s/ Paul Mitchell
>
>Agreed. But the majority is jealous over its
>acquired democratic power over the minority. I
>doubt a challenge to the 17th would politically
>withstand scrutiny. We no longer have the same 
>Constitution of the design of the founders. 
>Remove the Constitutional butresses that hold 
>individual sovereignty at the top (like an 
>inverted pyramid) and the physics of power 
>will return the people to the bottom
>of a hierarchial system.  
>
>                     *     *     *
>The following is offered to substantiate the butress
>of the State legislature elected Senate as vital to
>the founders in maintaining the "residual sovereignty
>of the States" in a compounded Republican form of 
>government: 
>
>Alexander Hamilton in "The Federalist No. 9" states:
>
>"...The proposed Constitution, so far from implying
>an abolition of the State Governments, makes them 
>constituent parts of the national sovereignty by 
>allowing them direct representation in the Senate, 
>and leaves them in possession certain exclusive and
>very important portions of sovereign power. This fully
>corresponds, in every rational import of the terms, 
>with the ideal of a Foederal Government."
>            
>                          ***                                      
>In "The Federalist" No. 62, James Madison states of the
>composition of the Senate: 
>
>"...that the equal vote allowed to each state, is at once a
>constitutional recognition of the portion of sovereignty
>remaining in the individual states, and an instrument for
>preserving that residuary sovereignty..." 
>                             
>                          ***
>Madison, in "The Federalist No. 39" gives an extensive and
>sophisticated explanation of the concept of "federal":
>
>"First. In order to ascertain the real character of 
>the government it may be considered in relation to 
>the foundation on which it is to be established; to 
>the sources from which its ordinary powers are to 
>be drawn; to the operation of those powers; to the 
>extent of them; and to the authority by which
>future changes in government are to be introduced.
>
>"On examining the first relation, it appears on one 
>hand that the Constitution is to be founded on 
>the assent and ratification of the people of 
>America, given by deputies elected for the special
>purpose; but on the other, that this assent and 
>ratification is to be given by the people, not 
>as individuals composing one entire nation; but 
>as composing the distinct and independent States 
>to which they respectively belong. It is to be 
>the assent and ratification of the several States, 
>derived from the supreme authority in each State, 
>the authority of the people themselves. The act 
>therefore establishing the Constitution, will not be a
>national but a federal act.
>
>"That it will be a federal and not a national act, 
>as these terms are understood by the objectors, 
>the act of the people as forming so many independent 
>States, not as forming one aggregate nation, is 
>obvious from this single consideration that it is 
>to result neither from the action of a majority of 
>the people of the Union, nor from that of a majority
>of the several States. It must result from the 
>unanimous assent of the several States that are 
>parties to it, differing no other wise from their 
>ordinary assent than in its being expressed, not by 
>the legislative authority, but by that of the people
>themselves. Were the people regarded in this 
>transaction as forming one nation, the will of 
>the majority of the whole people of the United 
>States, would bind the minority; in the same manner
>as the majority in each State must bind the minority;
>and the will of the majority must be determined either
>by a comparison of the individual votes; or by 
>considering the will of a majority of the States, 
>as evidence of the will of a majority of the people
>of the United States. Neither of these rules has 
>been adopted. Each State in ratifying the Constitution,
>is considered as a sovereign body independent 
>of all others, and only to be bound by its own 
>voluntary act. In this relation then the new 
>Constitution will, if established, be a federal 
>and not a national Constitution. 
> 
>"The difference between a federal and a national 
>Government as relates to the operation of the 
>Government is supposed to consist in this, that 
>in the former, the powers operate on the political
>bodies composing the confederacy, in their 
>political capacities; In the latter, on the 
>individual citizens, composing the nation, in 
>their individual capacities..."
>
>"But if the Government be national with regard 
>to the operation of its powers, it changes its 
>aspect again when we contemplate it in relation 
>to the extent of its powers. The idea of a national
>Government involves in it, not only an authority 
>over the individual citizens; but an indefinite 
>supremacy over all persons and things, so far as 
>they are objects of lawful Government. Among a 
>people consolidated into one nation, this supremacy
>is completely vested in the national Legislature. 
>Among communities completely united for particular
>purposes, it is vested partly in the general 
>[national] and partly in the municipal [State]
>Legislatures. In the former case [a consolidated 
>national government], all local [State] 
>authorities are subordinate to the supreme; 
>and may be controuled, directed or abolished 
>by it at pleasure. In the latter [confederacy] 
>the local or municipal authorities form distinct 
>independent portions of the supremacy, no more 
>subject within their respective spheres to the 
>general [federal] authority, than the general 
>authority is subject to them, within its own 
>sphere. In this relation then the proposed 
>Government cannot be deemed a national one; 
>since its jurisdiction extends to certain 
>enumerated objects only, and leaves the several 
>States a residuary and inviolable sovereignty
>over all other objects..."
>
>"If we try the Constitution by its last relation, 
>to the authority by which amendments are to be 
>made, we find it neither wholly national nor 
>wholly federal. Were it wholly national, the
>supreme and ultimate authority would reside 
>in the majority of the people of the Union; 
>and this authority would be competent at
>all times, like the authority of every national 
>society, to alter or abolish its established 
>Government. Were it totally federal on the 
>other hand, the concurrence of each State in 
>the Union would be essential for every 
>alteration that would be binding on all. The 
>mode provided by the plan of the Convention 
>is not founded on either of these principles. 
>In requiring more than a majority, and 
>particularly, in computing the proportion by 
>States, not by citizens, it departs from the 
>national, and advances towards the federal 
>character: in rendering the concurrence of 
>less than the whole number of States sufficient, 
>it loses again the federal and partakes of the 
>national character."
>
>"The proposed Constitution therefore is in 
>strictness neither a national nor a federal 
>constitution; but a composition of both.
>In its foundation, it is federal, not national; 
>in the sources from which the ordinary powers 
>of government are drawn, it is partly federal, 
>and partly national: in the operation of these
>powers, it is national, not federal: In the 
>extent of them again, it is federal, not national:
>And finally, in the authoritative mode of 
>introducing amendments, it is neither wholly 
>federal, nor wholly national."
> 
>                              ****
>Excerpts and information taken from Schwartz and Webb's The
>R(oots of the Bill of Rights, Vol. 3, pg. 652 and 657.)
>
>Comments made by John Whitehill and Jasper Yeates in the
>Pennsylvania Convention Debates of November 30, 1787:
>
>"...I have said, and with increasing confidence I repeat, 
>that the proposed constitution must eventually 
>annihilate the independent sovereignty of the 
>several states. In answer to this, the form of 
>election for supplying the offices of the federal
>head have been recapitulated; it has been inferred 
>that the connection between the individual and the 
>general governments is of so indissoluble a nature,
>that they must necessarily stand or fall together,
>and therefore, it has been finally declared to be
>impossible, that the framers of this constitution 
>could have a premeditated design to sow, in the 
>body of their work, the seeds of its own destruction. 
>But, Sir, I think it may be clearly proved that 
>this system contains the seeds of self-preservation
>independent of all the forms referred to - 
>seeds which will vegetate and strengthen in 
>proportion to the decay of the state authority, 
>and will ultimately spring up and overshadow the
>thirteen commonwealths of America with a deadly shade. 
>The honorable member from the city has, indeed, 
>observed that every government should possess the 
>means of its own preservation; and this constitution 
>is possibly the result of that proposition. For, 
>Sir, the first article comprises the grants of powers 
>so superlative in their nature, and so unlimited 
>in their extent, that without the aid of any other 
>branch of the system, a foundation rests upon this 
>article alone, for the extension of the federal 
>jurisdiction to the most extravagant degree of 
>arbitrary sway.
>
>"This, Mr. President, is but a slight view of the 
>calamities that will be produced by the exercise 
>of those powers which the honorable members from 
>the city have endeavored to persuade us is
>necessary to grant to the new government in order 
>to secure its own preservation and to accomplish 
>the objects of the Union. But in considering, Sir, 
>what was necessary to the safety and energy of 
>the government, some attention ought surely to 
>have been paid to the safety and freedom of the 
>people...When, therefore, I consider it as the 
>means for annihilating the constitutions of the 
>several States, and consequently the liberties 
>of the people, I should be wanting to my constituents,
>to myself and to posterity, did I not exert every 
>talent with which heaven has allowed me to counteract
>the measures that have been taken for its adoption. 
>That the design of the late federal convention to
>absorb and abolish the individual sovereignty of 
>the States, I seek no other evidence but this system;
>...Finally, Sir, that the dissolution of our State 
>constitutions will produce the ruin of civil liberty 
>is a proposition east to be maintained, and which I
>am persuaded in the course of these debates will be
>incontrovertibly established in the mind of every 
>member whose judgment is open to conviction..."
>
>Jasper Yeates: "...Does it not appear that the 
>organization of the new government must originate
>with the States? Is not the whole system of federal
>representation dependent upon the individual 
>governments? For we find that those persons who 
>are qualified to vote for the most numerous 
>branch of the State legislatures, are alone 
>qualified to vote for delegates to the house of 
>representatives.; the senators are to be chosen
>immediately by the legislatures of the States; 
>and those legislatures likewise are to prescribe 
>the manner for the appointment of electors who are
>to elect the President. Thus, Sir, is the connection
>between the States in their separate and aggregate 
>capacity preserved, and the existence of the Federal
>government made necessarily dependant upon the 
>existence and actual operation of its constituent
>members. Lest anything, indeed, should be wanting
>to assure us of the intention of the framers of 
>this constitution to preserve the individual
>sovereignty and independence of the States 
>inviolate, we find it expressly declared by the
>4th section of the 4th article, that 'the United
>States shall guarantee to every State in the Union,
>a republican from of government' - a constitutional
>security far superior to the fancied advantages of
>a bill of rights..."
>
>Marcia A.  
>  
>
>
      


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