National Legislative Conference Awakening to Federal Encroachment

By: Michael R. Potaski

Senator Moore (D-Worcester-Norfolk) recently reported to his constituents that the National Conference of State Legislatures (NCSL) has awakened to the steady diminution of respect for State's rights once guaranteed by the Constitution. Senator Moore serves on the NCSL's Executive Committee and is Chairman of its Standing Committees. His report reflects growing concern in the Legislatures of all fifty states over the loss of Xth Amendment rights and increased numbers of unfunded Congressional and Executive mandates on the States. Senator Moore has the power in his hands, as do all other Legislators in the United States, to move to redress this serious imbalance of power should he and his cohort decide that they wish to tackle the problem.

The Xth Amendment of the Constitution which is both brief and powerful when it states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".

Simply put, the Xth Amendment strengthened the sense of true Federalism by defining the limits of the power and authority of the federal government to that which are clearly spelled out in the Constitution. Any power or authority not explicitly given to the federal government remains the sole prerogative of the States. Moreover, the Amendment was intended to prohibit the intrusion of federal authority into the activities of the States as long as the States were not violating the Constitution or breaking the law.

It is refreshing to read in Senator Moore's report that the NCSL is taking up the standard of States' rights. For far too long, the Left in this country has used the phrase 'states' rights' as synonymous with the evils of racism. Certainly, some States once cynically invoked "states' rights" to defend totally egregious discriminatory laws and practices. However, the XIIIth, XIVth, and XVth Amendments empowered the federal government to redress those problems without, at the same time, diluting legitimate States' rights under the Xth Amendment. Tacking the negatively emotive label of racism onto a specific Constitutional provision has been the Left's way to stifle debate on the question of States' rights.

The NCSL lists a number of specific intrusions into state prerogatives through unfunded legislative mandates from Congress and imposition regulatory requirements by the various Executive departments and agencies that are of concern to the its members. There are a great many more instances that are probably lower on the list of priorities to be tackled by that group. The NCSL has the ability to effect change if it has the courage to act.

The original intent of the authors of our Constitution was to devise a truly bicameral Congress in substance as well as in form. Article 1, Sections 2 and 3 of the Constitution provided that framework. The Bill of Rights, which included the Xth Amendment, was drawn up because the States demanded greater clarity in the definition of rights, responsibilities, and boundaries of the federal and state governments. These efforts provided a true element of Federalism which, unfortunately, has been increasingly eroded over the past 90 years to the point where Federalism is now virtually non-existent.

The loss of substantive bicameralism is a direct result of ratification of the XVIIth Amendment in 1913. Before then, the House of Representatives was intended to reflect the will of the people and was expected to mirror the political and social fashions of the day. The Senate was intended to be a brake on popular passions and to provide the States with an ability to both voice their specific requirements and influence Congressional action. To that end, the Constitution intended that Senators be appointed by State Legislatures and answerable to them. The XVIIth Amendment stripped the Legislatures of that authority and effectively ended the ability of the Legislatures to influence Congress in any meaningful way. This resulted in the fig leaf of bicameralism attempting to cover the Senate's willingness to pander to special interests at the expense of the States as exemplified by the recent lobbying scandals.

The States have the ability to redress this mistake. Article V of the Constitution contains a provision allowing the calling of a Constitutional Convention to consider Constitutional Amendments if the Legislatures of two thirds of the States request it. If the NCSL is truly concerned about the loss of Xth Amendment rights and egregious intrusion of Congress and the Executive into States' affairs, it need only move to repeal the XVIIth Amendment and regain control over the U.S. Senate.

The challenge to Senator Moore is twofold. First is to convince the membership of NCSL to wield the power in its hands and move their State Legislatures to invoke the provisions of Article V for the purpose of repealing the XVIIth Amendment. The second is for Senator Moore to rally the Massachusetts Legislature behind the effort. The Patriots fired the first rounds of the Revolution and it's time to see if the folks on Beacon Hill have the mettle to do what is needed by leading this charge.

The Massachusetts Republican Assembly has passed a calling for repeal of the 17th Amendment and has drafted a replacement text:

Amendment--

`SECTION 1. The seventeenth article of amendment to the Constitution of the United States is hereby repealed.

`SECTION 2. The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years and subject to recall by the legislature; and each Senator shall have one vote.

`SECTION 3, Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this amendment, related to the selection and removal of Senators. A State Legislature may implement a selection procedure whereby the State Legislature selects a Senator by a plurality vote rather than a majority. If a State Legislature fails to enact a selection procedure, then the State Legislature shall sit as a single body and shall select a Senator by a plurality vote. Irrespective of the procedures followed by the State Legislature, if the State Legislature does not choose a Senator within thirty days after a vacancy, the Governor of the State shall select the Senator.

`Section 4, The pay and benefits afforded each Senator shall be determined by the legislature of the State and appropriated by that legislature and paid from the State's treasury. No Senator shall draw any pay, remuneration, or benefit from the Federal Treasury.

`SECTION 5. 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.

SECTION 6. Upon ratification of this Amendment the Senate shall be prorogued and new members appointed by the State legislatures.