The Constitutional Renaissance Call

It is up to the states to fix it.

Archive for the category “17th Amendment”

The Congressional Fairness Amendment

Many have recently seen the viral emails crying out for the “28th Amendment.”  The claim behind this viral email is that Congress routinely exempts itself from laws that it passes.  The cry is for passage of the following amendment:

“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and Representatives; and, Congress shall make no law that applies to the Senators and Representatives that does not apply equally to the citizens of the United States “.

There are three problems with the viral email.  First, many of the claims cited (not all) are false or out of date after the passing of the Congressional Accountability Act of 1995.  Secondly, the proposed amendment, which I call “The Congressional Fairness Amendment,” is egalitarian in nature and a republican form of government is not.  Those in power should have tighter controls and restrictions placed upon them than those who are not in power.  The second part of the proposed amendment prevents this.  Third, the proposed Congressional Fairness Amendment, runs counter to an important part of the US Constitution, written by for a good reason our Founding Fathers.  In Article 1, Section 6 we find:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

I understand this to be placed there for a couple of reasons.  First, in order to prevent the legislators from being bullied or threatened by the executive branch, the branch yielding the power of enforcement, the legislators required a degree of immunity.  Otherwise, they could be detained from important votes by arrests over trivial matters.  I would not put it beyond any administration in the past 100 years to resort to such an act if it could turn a vote. Nevertheless, it is important to remember that this use of the section was for Congressional protection, not privilege.  The cries for an amendment to make Congress subject to all laws come from the perception that Congress is taking privilege of this.  For example, until a recent outcry Congress was exempt from insider trading laws allowing Congressmen and Senators to invest based upon information learned through congressional briefings.  This leaves people with a “what else are they doing” feeling.  After all, many Congressmen and Senators have become multi-millionaires after being voted into office.  The elitism is evident to all.

Charles de Montesquieu, a French philosopher who lived from 1689 to 1755, had great influence on the Founding Fathers.  Much of what is written in the US Constitution can be traces back to Montesquieu and John Locke (1632 to 1704).  The founders tried to strike a balance between too little equality between the leaders and the people and too much.  As de Montesquieu wrote,

“The principle of democracy is corrupted not only when the spirit of equality is lost, but also when the spirit of extreme equality is taken up and each one wants to be the equal of those chosen to command.  So the people, finding intolerable even the power they entrust to the others, want to do everything themselves: to deliberate for the senate, to execute for the magistrates and to cast aside all judges.” 

He argued that in both cases, despotism was the result.  Though most understand how too little equality results in tyranny, few understand how too much equality does.  The result is a loss of republicanism for total democracy and eventually anarchy.  Anarchy never returns to liberty; it results in a dictator coming into power.  This has been repeated continuously throughout history.

So to sum it up, where I once use to subscribe to the call for Congressional equality, I am now cool on the idea.  I fear that the current outcries are leading us to the opposite extreme of too much equality being desired in the hearts of the people.  I believe that if a term limit amendment, pay limit amendment, anti-pork amendment and the repealing of the 17th Amendment are in place, the checks upon Congress will be sufficient to prevent elitism.  If the proposed Constitutional Convention feels that there must be something done with respect to excesses being taken by Congress, then I propose the following sentence be added to Article 1, Section 6:

Privilege from arrest shall not be construed to exempt Congress from laws they pass, neither shall time served in Congress be applied to any statute of limitations for any law.

Thus, Congress cannot exempt themselves and they can be arrested for abuses upon termination of their service.  Congress must be accountable to the People or the system falls into tyranny.

Your thoughts?

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Objects in this Mirror Should be Closer than They Appear

As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. – Federalist Paper #52

I shall here, perhaps, be reminded of a current observation, “that where annual elections end, tyranny begins. ” – Federalist Paper #53

It is clear from the writings of the Founding Fathers that the part of the federal government, which was to represent the people, should closely mirror the people for which they are governing.  Yet today, this is clearly not the case in at least two respects.  First, it was not fully envisioned by the founders that current election rules would be adopted whereby the incumbents have such a great advantage.  The argument throughout Federalist Paper #53 was for a biannual period of election, because people of that century were calling for a shorter term of office for the House of Representatives.  The argument in FP #53 was that a shorter term would not afford the elected representative enough time to get acquainted with his new position before being removed from office.  Think about this what this is saying.  The Founders truly envisioned that the scales in election would be more equally balanced between challenger and incumbent and that there would be more turnover.  Otherwise, having shorter terms would not be an issue.  Second, the Founders envisioned that the House of Representatives would have elected representatives who were of the same walk of life as the people electing them.  If the elected were to become disassociated with the people, they would begin to rule over them and liberty would erode.  This was the crux of Federalist Paper #52. 

Today, we find neither of the envisioned principles to be true.  Current election rules enable special interest groups to fill the coffers of the incumbents to the point where a challenger, unless he secures money from the main party, has little chance of toppling an incumbent.  Even then, the main political party doles out money only to those who have “paid their dues” to the political process and think like the elitists in their party.  This has created a situation whereby congressmen have been in office for decades and have little in common with the common people who have elected them.  (Please read my posting on the 17th Amendment as to how this affected special interest.)  After decades of having their “skids greased” by special interest groups, the legislators’ pockets have become full.  Take a gander at data contained on the website OpenSecrets.org.  They surveyed the net worth of members in both the House and the Senate through disclosures in 2004 and 2010.  The figures are astounding.  The average House member’s net worth in 2010 was 6.8 million dollars.  But even more astonishing was the annual growth in net worth, while they were in office.  The average annual growth was approximately $491,000 per year.  That is far more than their annual pay increases.  So, if you want to be set for life, get elected to Congress and toe the party line.

This is definitely not what our Founders envisioned.  Thus, two amendments need to written to limit the term of congress to a relatively short period and the compensation to Congressmen.  How long should term limits be?  That is the issue of debate.   Based on the arguments by the early founders, I believe anything over a decade is too long for a House member.  My personal belief is that both the House and the Senate need to be limited to 3 terms. However if the 17th Amendment is repealed, the Senate should not be limited in terms because the political process within a State Legislator will limit their term, naturally.  In addition, the Senators represent the states.  If the state legislatures approve of their work, so be it.

Pay for members in power capped at a level no higher than 2 standard deviations of the national average, with modest travel and housing allowances for residing in Washington while serving in Congress.  This will keep representation within reasonable limits to the majority of Americans.  It is low enough that those elected are reminded that they are in a service role.  It is high enough that Americans are not having to choose from the bottom of the barrel in whom they elect.  The allowance should only be paid if their home of residence is outside reasonable commuting range.  It should be modest such that representatives can be comfortable and secure in their Washington dwelling, but not luxurious; 1-2 bedroom condo with adequate security.  A representative can live at a higher standard, if the amount above or beyond the allowance comes out of their own pocket.

At the Constitutional Convention, there will be an argument that the Constitution should not be as prescriptive as to set pay rates and allowances.  I disagree and believe that it our Forefathers had foresight into the future. They would agree with the measure.  After all, Congress submitted the text of the Twenty-Seventh Amendment to the States as part of the proposed Bill of Rights on September 25, 1789. This amendment provided that no Congress could vote itself a pay raise.  So they knew the heart of man was naturally corrupt.  The amendment was not ratified along with the first ten Amendments, which became effective on December 15, 1791. It took 200 years for the needed states to “have enough” of watching the fat cats.  The Twenty-Seventh Amendment was ratified on May 7, 1992, by the vote of Michigan.  Judging by the wealth of congress today, I’d say it is still not enough.  The issue of pay and term limits must be a top priority on the convention.

Repealing the 17th Amendment

You have been lied to by your high school civics teachers.  If you are like me, you were taught that the Founding Fathers formed the Constitution as a balance of power between the three branches of government.  This is wrong.  Our current form of government is a balance of power between the three branches.  The original version, prior to the 17th Amendment, was a balance of power between four branches of government: Executive, Legislative, Judicial and State Governments.  The United States was a union of individual states. The original purpose of the US Senate was to provide the state governments a direct representation at the federal level.  This is evident in various ways, not the least of which is the fact that the Senate ratifies all treaties.  In my most humble opinion, the topmost issue in shoring up the Constitution is repealing the 17th Amendment.  For this amendment severed the bonds between state governments and the federal government.  The amendment made Senators directly chosen by the people.  Where this may sound well and good, it made Senators campaign for votes and thus needing to appease special interests in order have the money to do so.  Prior to the amendment, the only people a Senator had to “campaign” to were the members of their respective legislatures; this requires little money.  The 17th amendment states the following:

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.

The original language is still found in Article 1, Section 3 (*bracketed portions were replaced):

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.

And

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 of 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.]*

Why the change?  That is a hard question to research.  There were a few cases where seats were left vacant.  However, these situations were not devastating to the operation of the federal government.  There was no failure to meet a quorum.  Rather these examples were used by early 20th century progressives to capitalize on a “crisis” with a fix “needing to be made.”  But was there really a crisis.  Funny, when I tried researching the reason for the 17th amendment, it is very hard to find the reason, anywhere.  Must have been some crisis, huh?!

The amendment was supposed to be an improvement for democracy; Senators now directly elected by the people.  In fact, it was just the opposite.  Senators have become more distance from the people.  When they had to be held accountable to legislatures, the people could correspond to their state representative, a person elected every two years, to do something about the Senator.  After the 17th Amendment, the Senators needed only to tickle the ears of the groundlings once every 6 years to be reelected.  The state governments had no voice.

Thus, started the entitlement programs.  Not only that, but states had to pay up for federal programs, like Medicaid. In a sense, this has become a loose form of taxation without representation for the states.  Since the state governments earn no money, all cost get past to the taxpayer.  In addition, after the passage of the 17th Amendment, abuses of the 10th Amendment, started to ramp up.

My solution is for the following amendment to be submitted and passed:

The 17th Amendment is immediately repealed.  All legislatures shall vote whether to retain or replace their Senators prior to the next federal election with each Senator’s term remaining unchanged.

Any Senatorial vacancies shall immediately be filled by a temporary appointment of the executive for that state until the state legislature can elect a replacement.  All disputes between state legislative bodies regarding replacement of a senator, which cannot be resolved within 45 days, shall be resolved by the State Executive.

State Legislatures may recall any sitting US Senator by a two-thirds vote.  Only one Senator from the state may be recalled every two years.  A recalled Senator vacancy shall be treated the same as any other.

This amendment restores the founding fathers’ original intent of the state government electing the US Senate.  It resolves the issues coming from legislatures being unable to sit a Senator.  It also provide a method to remove a Senator who goes to Washington and then abandons the will of the state governments, while at the same time maintaining stability of the Senate by preventing both Senators for a State being replaced in the same term. 

Though the precise verbiage is flexible, the new amendment should maintain the same intent.

Folks, this is the rallying cry!!  This amendment is what gives the states the motivation to call a convention of states to amend the constitution.  Please start crying out.  Send people to this website.  Enough tyranny.

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