Thursday, January 06, 2011

Is Any Part of the Constitution Unconstitutional?

Is Any Part of the Constitution Unconstitutional? Judge Andrew P. Napolitano; The American Spectator

The short answer to the question above is: Yes.

Here is the back story. The elections this past November were truly historic for those who love freedom. The Tea Party, a grassroots libertarian insurgency cobbled together from disaffected Republicans and libertarians, managed not only to strike fear into the Establishment, but actually to throw off the Establishment's hand-picked candidates in favor of those supporting limited government. The Republicans were able to ride this wave, taking control of the House and achieving a filibuster-positive number in the Senate. What many voters may not have known, though, is that if the Constitution we cherish were still in its original form with respect to the Senate, they would never have been able to vote for Rand Paul or Marco Rubio, and that would have been a good thing.

The 17th Amendment to the Constitution, which provides for the direct popular election of senators, was enacted in 1913, at the height of the Progressive Era. Originally, the Constitution had provided for state legislatures to appoint U.S. senators, a realistic reflection that the Constitution was a compact of sovereign states. It meant that senators would not be focused on public campaigning; they could do what they were elected to do. They would represent the interests of the states that sent them -- not the people in the states, but the states as sovereign entities. 

Read the rest here.


danq said...

Judge Napolitano's argument about the 17th being "unconstitutional" because of the Founders' views makes him (and conservatives/libertarians) look really stupid to non-conservatives.

According to this logic, the 15th, 19th, 23rd, 24th, and possibly the 26th would be unconstitutional because if the Founders wanted women and blacks to vote, DC to vote for President, and block the possibility of a poll tax or age limit, they would have set up the original Constitution that way.

Also, opinions varied - recall that Alexander Hamilton was not only famous for his duel with Aaron Burr, but wanting a President-for-Life. Others felt only landowners should vote, and thus the closing time of the voting booths.

What Judge Napolitano should have focused on was how the 17th is a possible conflict with Article V: "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Is a Constitutional amendment from 100 years ago "consent" by politicians today?

Brian said...


Good point. Maybe you should bounce this off of Prof Z on the discussion board to get his take.

It's interesting though that Napolitano hasn't had Prof Zywicki on his show yet to discuss the 17th. He would make a great guest.