Let’s Repeal Two Constitutional Amendments

“A hand from Washington will be stretched out and placed upon every man’s business; the eye of the Federal inspector will be in every man’s counting house.” — Richard E. Byrd, Speaker of the Virginia House of Delegates during the Ratification Debate for the 16th Amendment.

On June 5, 2013 I posted an essay on the tyranny the passage and ratification of the 16^th Amendment has caused entitled “How Did We Get Into This IRS Mess?”

When our Constitution was written and adopted it contained two specific enumerations as to how Congress could raise money from the citizens.

The first was Article I, Section 8.1 that states:

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

The second can be found in Article I, Section 9.4 that states:

“No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”

This clause basically refers to a tax on property, such as a tax based on the value of land, as well as a capitation — a poll tax; an imposition which is yearly laid on each person according to his estate and ability. One must also realize that “property” in the eyes of our Founders included everything from land and the realization of your labor, i.e. money to one’s opinions. In other words our Founders did not want the federal government to be able to take any of your property in taxes. They wanted to pay for the cost of maintaining all of the items enumerated in Article I, Section 8 through the collection of duties, imposts, and excise taxes.

When our Founders wrote the Constitution they divided the federal government into three branches; legislative, executive, and judiciary. The purpose of this was to impose checks and balances on the powers that could be exercised by any one branch of government. Our founders also wanted the legislative branch to be the more powerful of the three branches so they set forth additional checks on this branch by dividing it into two chambers. It was their intent to make the lower chamber — the House of Representatives — the chamber most responsive to the people and the passions of the day. This is why members of this chamber are subject to a two-year term and can be easily replaced by the citizens of their respective districts. The also wanted all spending bills to originate in this house. In essence they wanted the House of Representative to control the purse strings of the federal government. All of this is laid out in Article I, Sections 1 and 2 of the Constitution.

The upper chamber — the Senate — is defined in Section 3 of Article I. It grants separate powers to the Senate not granted to the House and gives senators a term of six years with a one-third turnover of the Senate every two years:

“The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and the third class at the expiration of the sixth year, so that one third may be chosen every second year; 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.”

It was the intent of the Founders to make the Senate a more deliberative body less influenced by the passions and factions of the day and more responsible to the will of their respective state legislatures. This is why they wanted senators appointed by the various state legislatures and not elected by popular vote.

As noted above Article I, Section 3 states:

“The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”

This was a carryover from the Articles of Confederation and the fear that the individual states would relinquish too much power to the central government under the concept of “Federalism.”

This was changed by the passage and ratification of the 17th Amendment in 1912-1913:

“The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

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.”

Article I, Section 7 spells out how revenue shall be raised:

“All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.”

In order to convince the states (former colonies) to ratify the new constitution Alexander Hamilton, James Madison, and John Jay authored a series of 85 essays that were published in the newspapers of the day. These essays became known as the Federalist Papers and set forth the arguments for ratification of the new constitution along with explanations that were designed to allay the fears of the states.

In one of the most famous of the essays, Federalist 10, James Madison make the argument for the adoption of a republican form of government rather than a direct democracy based on his fear of “factions” that could impose a a tyranny of either the majority of minority where he states:

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison continues his argument:

“Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.”

In Federalist 51 where Madison argues that the structure of the government must furnish the proper checks and balances between the different departments:

“The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”

…

“Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.”

Today we have the situation where massive and complicated laws, like ObamaCare (over 3,000 pages) are passed without having been read or debated by the legislators themselves, let alone discussed in the press and by the people. When this sad state has been reached, the law itself, as Madison eloquently says, “poisons the blessings of liberty.” James Madison stated in Federalist No. 62 where he writes about the power, duties, and responsibilities of the Senate:

“The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.

To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.

In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”

Americans may be able to regain control over their federal government by moving their respective individual state legislatures to invalidate the 16th and 17th Amendments to the United States Constitution. Essentially, this is a vote to reverse ratification of an Amendment without a Constitutional Convention.

Repeal of the 16th Amendment starves the federal beast by depriving it of its consumption of money from the states and the taxpayers through income taxes. States could exercise better control over how or even if their money is spent.

Repeal of the 17th Amendment makes United States senators directly appointed by the state legislatures, as they were at our nation's founding, and representative of the will of each state and its citizens. This action would check the federal government's proclivity to pass laws binding the states to unfunded mandates. It would increase the sovereignty of the several states and restore true federalism back into our system of government.

The states can do this by individual vote; this way, a Constitutional Convention and the subsequent dangers presents to liberty can be avoided. According to Article V of the Constitution three-fourths of the state legislatures would have to vote to repeal each or any Amendment.

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” [Emphasis added]

Once each state votes to invalidate an Amendment, the vote is sent to the Archivist of the National Archives. The result would be a return to the Constitution as it existed before the now repealed Amendments were included.

The United States of America was founded as a representative republic, where several sovereign states voluntarily joined under a common federal sovereign to better guarantee the unalienable rights of "We the People." This federal government was to be strictly limited to the enumerated powers given to it under the Constitution of the United States by the sovereignty of the several states and the people, who themselves are sovereign individuals. This is why we have the Ninth and Tenth Amendments.

The federal government is supposed to be strictly limited in power to only those things authorized in the Constitution. The several states were to always enjoy plenary power — that is, power over everything not specifically given over to the federal government. Any powers not delegated to the several states were to be with the people as individuals.

Today, the federal government has been allowed to grow in size and scope of authority where it now imposes its will in every way over our individual daily lives. It has usurped the plenary powers of the several states. Every issue making news today seems to have a federal solution proposed or enacted instead of allowing the states, which are closer to the people within them, to address those issues.

The root of the current problem is that the federal government bends and contorts and stretches the plain meaning of the U.S. Constitution. It is allowed to do this, in part, by its taxing authority. The federal government taxes almost everything, taking the wealth of each state and of every individual for its own use.

The federal government redistributes this wealth as it sees fit to enact controls over the several states and the people through various administrative agencies, policies, and programs. The purported original need for an administrative agency, policy, or program is rarely, if ever, met.

In fact, the original need becomes modified with other causes and objectives requiring these agencies to grow; new policies and programs must be promulgated to better meet real or imagined demands.

Thus, the system is self-perpetuating. Without proper checks by the Congress, the administrative state becomes all-encompassing, oppressive, and in some respects, tyrannical.

But Congress has repeatedly failed to act. It benefits as an institution because the money the government gets is first distributed by its own members. This is properly so if each respective branch of our government works according to separation of powers as intended by the Framers.

Too often, the "separate powers" of the federal government seem to work in unison against the will of the American people. It is in those times that the Framers asserted the American people must respectfully move to regain control and place each house in proper order.

An effective method of dealing with this is for the several states to "starve" the federal Leviathan by reducing or denying its lifeblood of money. Prior to the enactment of the 16th Amendment to the United States Constitution, taxes were paid to the federal government by apportionment based on population, and through certain direct fees (taxes) on customs, alcohol, and other select commodities.

The 16th Amendment allows the federal government the authority to directly tax the incomes of all individuals by whatever type and means necessary. Repeal of this amendment is necessary for the several states to regain financial control over federal spending. Cutting the money tap will in effect reduce or eliminate federal borrowing and annual debt. It will also bring the power that comes with distributing that money back to the influence of the states, closer to the people.

With monies reduced, administrative bureaucracy, unnecessary policies, and unneeded programs will also reduce. Some, like the Department of Education and EPA, may be eliminated. A strictly limited federal government exercising only its constitutionally permitted powers restores trust and is beneficial to the American people.

Likewise, the 17th Amendment to the United States Constitution now allows for the direct election of United States senators. The Senate was originally the part of Congress that represented the several states and their respective state's interests.

The House of Representatives originally, as today, were the part of Congress elected directly by the people. With the Senate directly elected by the people instead of appointed by each state's legislature, the Senate has become a de facto extended-term of the House of Representatives.

Senators rarely represent the interests of their home state today, as demonstrated by their voting for huge indebtedness as a national issue and voting for unfunded mandates adversely affecting the state they purport to represent, among many other self-interest issues.

The United States Constitution can have amendments added to it via two methods: the first is by a proposed amendment approved by two-thirds of the House of Representatives and approved by two-thirds of the Senate. The proposed amendment then goes before each state's legislature for majority approval. When three fourths of all states (38) ratify the proposed amendment, the amendment then becomes part of the United States Constitution, the Supreme Law of the Land. The votes of each of the legislatures of the several states submit their letter of decision to the Archivist of the United States, in the National Archives. This method has been used exclusively since the first Constitutional Convention, and it includes all amendments (27) in existence today.

The second method is for two thirds of the states (33) to call a Constitutional Convention, propose an amendment, and then have it successfully ratified by a minimum of three fourths of the several states (38). The amendment then becomes part of the United States Constitution. The votes of each of the legislatures of the several states submit their letter of decision to the Archivist of the United States, in the National Archives.

The problem with the second method is the lack of control that might be exhibited by the delegates to the Constitutional Convention. A group intent on radically changing our Constitution could do away with many protections we enjoy today or grant certain offices or persons in government additional powers and authority never intended. Even though any proposed amendment proceeding forth would still have to be ratified by three-fourths of all the states to become part of the constitution, the danger to this republic is unknown.

A unique consideration would cause the legislatures of the several states to vote to de-ratify or nullify the 16th and then 17th Amendments. This should be accomplished with little danger to the republic in that once three fourths of the several states (38) vote to de-ratify an amendment, the Constitution would return to its former status as to law.

Since the action would not involve a Constitutional Convention, there would be no new amendment(s). Any changes would be perceived by the legislatures of the several states and would be close to the people for comment and redress of grievances.