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Tuesday, January 24, 2006
How Can Part of the Constitution Be Unconstitutional?

Some propose the repeal of the 17th Amendment to the United States Constitution, which provides for the direct election of US Senators by the people of their states. At least a few of them call the amendment "unconstitutional." This doesn't seem to make sense . . . but we'll follow it where it leads.

I subscribe to a mailing list produced by American Forker Oak Norton, who has set himself the task of overthrowing what we here at the blog have called The Emperor's New Math, or TENM for short. (Folks who aren't trying to be clever call it Investigations Math.) It is a worthy cause, and, unlike most folks who want something about government to change, Mr. Norton is going about his task in an organized and persistent fashion. He has a Web site with information and a petition you can sign online, if you favor the Alpine District dumping TENM and returning to something that will actually help our children to learn enough math. So far, over 900 parents in Alpine School District have signed the petition, including yours truly; they, er, we represent about 2500 students in the District.

. . . All of which chatter is prologue. Mr. Norton's mailing today includes some information about three pieces of legislation proposed in the current Utah Legislature session. Two are directly related to the public schools, and one is indirectly related. The first (HB 77) limits the size of school districts (good). The second (HJR 11) urges Congress to repeal the No Child Left Behind Act (not going to happen, but maybe they could fix it somehow?). The third is what captures this blogger's attention this evening.

In Oak Norton's words, Senate Bill 156 (search here for S.B. 156) "will help overcome the negative effects of the unconstitutional 17th amendment." We'll get back to that word "unconstitutional" in a moment. First, let's recall that the 17th Amendment to the US Constitution provided for the direct election of US Senators; prior to that amendment, they were elected by state legislatures. Note also that Article (not Amendment) V of the Constitution provides means of amending the Constitution.

Next, consider some history.

The 17th Amendment was ratified in 1913, having been put forth as a remedy for Senate corruption, the excessive influence of special interests, and the spending of large sums of money in Senate campaigns. Making the election of Senators more democratic -- therefore making Senators more directly responsible to the voters themselves -- was supposed to minimize the problems. Such was the faith of folks in Progressive times. Whether it succeeded, at least for a while, is debatable, but is not today's question.

The American Founders' major motives included limiting the power, cost, and size of our national government. So they divided power between the federal government and the states (we call this federalism), and further divided federal power among executive, legislative, and judicial branches, each of which has some power to check the others (all of which we call checks and balances). To achieve a crucial compromise between large and small states, they divided national legislative power further, between the House of Representatives and the Senate.

Representation in the House has always been based on population, with all members representing individual districts of approximately the same size. In the Senate each state has always had two Senators, both of whom represent the entire state. As noted, to protect further the power of state governments, US Senators were elected by state legislatures, not the people.

The 17th Amendment clearly diminished the states' power with respect to the federal government, even as it increased the people's direct control over the federal government. However, the different constituencies of Representatives and Senators even from the same state have preserved considerable differences in the politics of the two houses. Whether the Amendment itself was good or bad, or should now be repealed or not -- these would be excellent topics for prolonged and serious discussion.

But to call an existing, ratified amendment to the Constitution "unconstitutional" is, frankly, a little goofy, unless one asserts (on the basis of real evidence) that the amendment was not ratified in the manner the Constitution prescribes. The whole point of having an amendment process is to change the Constitution. The new amendment, once ratified, becomes part of the Constitution. So how can it be unconstitutional in substance?

Consider the 16th Amendment, for example. Prior to its ratification, a national personal income tax was unconstitutional. The 16th Amendment made it constitutional. It makes no sense to assert that the 16th Amendment itself is unconstitutional because it changed a provision of the original Constitution . . .

That is, it makes no sense unless you think the Constitution was perfect in its original form. If that were true, then to add, take away, or modify anything at all would be inappropriate or, you might say, unconstitutional. Those who believe this do so against common sense and against evidence. The evidence includes the fact that the Constitutional Convention created Article V, to provide for amendment. Why do that if it's already perfect? The evidence also includes the Constitution's provisions for the continued existence of slavery (without which compromise there would have been no Constitution at all). It includes statements by the major figures in that convention to the effect that they believed the Constitution to be the best they could produce, but not certainly not perfect. For example, Benjamin Franklin's final speech at the convention included these thoughts:

I confess that there are several parts of this constitution which I do not at present approve. . . . I doubt . . . whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me . . . to find this system approaching so near to perfection as it does. . . . Thus I consent . . . to this Constitution because I expect no better, and because I am not sure, that it is not the best. (James Madison, Notes of the Debates in the Federal Convention, September 17, 1787)

Others who spoke after Franklin expressed similar sentiments, as did many of them after the Convention adjourned. To be sure, "This is the best we can do, and it's very good" is far from "We have given you a perfect government. Don't ever change it at all."

Most who believe in the perfection of the original Constitution -- is that before or after the ten early amendments we call the Bill of Rights? -- do so because it is an article of their religious faith. For example, it is Mormon doctrine (which I accept, believe, and occasionally teach) that God guided the American Founders in producing a very good, robust constitutional government, for its own sake and as a blessing for the rest of the world. Some people think this means that the Constitution was perfect in its original form; I don't. I think it means that God guided that process, so that those humans could produce a human government that was good enough to serve God's purposes. That is not nearly the same as perfection.

Note that the Constitution was fashioned and written by human hands; it's not as if God handed it down ready-made on stone tablets. It was the product of human wisdom and human compromise. The hand of God may have been behind the Convention's ability to produce a good government at all; I believe it was, and many who were involved attested to it. But how could the thing be perfect, even with divine help, if humans were so involved? Why would it even need to be perfect? God's perfection would be wasted on human government in any case, because, even if the form were perfect, the actual execution could not be.

Also note, come to think of it, that there is no article in the Ten Commandments providing for humans to propose and ratify binding amendments to that document!

If you've been reading my blog lately, you may wonder how my view of this squares with the idea of the rule of law, which I keep trying to defend and explain. In fact, the two fit together quite comfortably. I assert that the law should be obeyed and enforced because it is the law, not because I subscribe to some illusion that the law is perfect. In fact, my discussions of the rule of law frequently include insistence that a law should be repealed or repaired, if we cannot or do not wish to enforce it. This actually assumes the imperfection of law and the desirability of changing it in many instances.

This may seem like an odd place for the notion of an unconstitutional constitutional provision to lead, but so be it. One final thought: Those who accept the United States Constitution as divinely inspired (as I do) are a lot more useful and effective in discussing, debating, and defending it from day to day, and are harder for opponents to dismiss summarily, if they keep their wits about them and don't let their zeal lead them beyond their own scripture and doctrine, to the indefensible conclusion that what was divinely assisted or inspired must also be perfect.

Oak Norton comments (9/8/06):

First, I'm actually a Highlander, not American Forker.

Second, although it was "goofy" of me (guilty of using a poor word choice) to assert the 17th amendment is unconstitutional since it is obviously part of the constitution, you do mention "unless one asserts (on the basis of real evidence) that the amendment was not ratified in the manner the Constitution prescribes."

I invite you to check out some of the resources on this page of my site. Specifically the first one as Devvy Kidd asserts she has personally seen the real evidence that the amendment was never ratified properly.

I am genuinely concerned that states have lost many rights because they wield little power in Washington. Hatch and Bennett in my opinion are not very good senators in a number of areas, but particularly representing the state's rights. I believe the founders meant to have an opposition in all things including states electing senators and people electing representatives instead of people electing all of them. There is a purpose in that principle.

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