In May, 1818, James William McCulloch was a cashier at the Baltimore branch of the Second Bank of the United States. McCulloch issued a series of bank notes on which the bank did not pay a Maryland state tax. The state treasurer quickly sued to recover the money and won a judgment in Maryland’s highest court. The Supreme Court soon accepted the case, which would have a profound impact in defining the principle of federalism, the reading of the Necessary and Proper Clause in the Constitution, and the national vision of the Marshall Court.
Over the years, the Supreme Court has addressed several constitutional topics in cases involving lotteries. Perhaps none is as significant as Chief Justice John Marshall’s opinion in Cohens v. Virginia. The case was the third major act in a decades-long contest over the nature of the Union and, more specifically, over the constitutional relationship between federal and state laws and between the federal and state judiciaries. On the last point the contest directly involved repeated clashes between the United States Supreme Court and the Virginia Court of Appeals (the state supreme court), and between two dominant jurists, Marshall and the chief judge of Virginia, Spencer Roane. Cohens v. Virginia is the climax in the story of those two rivals.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
In this 1830 response to Edward Everett of Massachusetts James Madison maintains that a state does not possess the authority to strike down as unconstitutional an act of the federal government. If you find the essay long-winded, you are correct in this assessment. It is long-winded because James Madison was a hypocrite on the issue of nullification, supporting the notion when it suited him, and rejecting it when it did not. You may learn from this episode an important lesson about human nature. The greatest of founding fathers does not always make a great secretary of state, a great president, or a great elder-statesman. James Madison (and Thomas Jefferson) were no exceptions to this insight. Read more
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.
The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . . which surround the roof tree of every householder . . . .” But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.
Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155. But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.
As time drew on, other efforts to quell quartering fell well short of success. The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes. By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”
But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering. In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .” James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.
In America, complaints against quartering began surfacing in the late 17th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.” The quartering problem in the colonies grew exponentially during the mid-18th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.
The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”
Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.
After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.
Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:
“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”
The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.
But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:
“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”
Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state. Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.
The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.
As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.” Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.
Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting. After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”
The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states. The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.
The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states. Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom, yet the question still lacks a definitive answer.
Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.
 This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”
 Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.
 Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.
 English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)
 Fields & Hardy supra note 3 at 403
 The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.
 Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127
 Fields & Hardy supra note 3 at 403 – 405
 Great Britain. Statutes of Great Britain. London: , 1950. Print.
 Bell supra note 2 at 123
 Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980
 Fields & Hardy supra note 3 at 417
 Id at 417-18
 The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217
 Fields & Hardy supra note 2 at 424
 Kurland & Lerner supra note 14 at 217-18
 Id at 218
 Bell supra note 2 at 136
 Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from http://memory.loc.gov/ammem/amlaw/lwsllink.html. Internet; accessed 22 May 2011.
 Bell supra note 2 at 137
 Id at 141-142
Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.
1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Article VI concerns the debts of the United States, the supremacy of the Constitution and federal law, and the sworn obligation of office holders to uphold the Constitution.
America’s War for Independence was an expensive war – and most of it had been financed. Tens of millions of dollars had been borrowed from foreign governments and wealthy financiers – some of them even English – who were understandably concerned that their debtors might try to use the country’s new-found independence to avoid repaying their loans. Indeed, the 1783 Treaty of Paris, which brokered the peace between Britain and the United States, expressly provided that lawfully-contracted debts were to be paid to creditors on either side.
This concern resurfaced as the fledgling country traded in the relatively weak Articles of Confederation for a more authoritative Constitution. Article VI, clause one, of the new document reassured unpaid creditors that “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The ratification of the new Constitution then could not be used to shirk paying those who were rightfully owed under the old system. It was well understood at the time that good credit must be established and maintained if the country would have any hope of survival or longevity.
The second clause, commonly known as the “Supremacy Clause,” makes clear that the Constitution is the binding legal authority on which the country was founded: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This may seem axiomatic to us today, but the issue was far from settled and “the source of much virulent invective and petulant declamation against the proposed Constitution,” (Federalist No. 33) for it was widely feared that the formation of the federal government would intrude upon the rights and liberties enjoyed by the states and the people.
Richard Henry Lee, a prominent anti-federalist, expressed this fear in the alliterative “Federal Farmer IV” when he warned, “It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.”
Both Alexander Hamilton and James Madison took up the debate and defended the clause. Hamilton first explained, “If individuals enter into a state of society the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for Political Power And Supremacy” (Federalist No. 33). But Hamilton, perhaps attempting to assuage the fears of men like Richard Henry Lee, insisted that the “acts of the larger society which are not pursuant to its constitutional powers” must then be held “invasions of the residuary authorities of the smaller societies” and will not become the supreme law of the land. “These,” Hamilton argued, “will be merely acts of usurpation, and will deserve to be treated as such.” Thus, although a supreme law was required for any proper government to function, the federal government would be limited in its scope to those laws pursuant to the Constitution.
James Madison’s Federalist No. 44 echoed Hamilton’s argument and contended that any Constitution without a Supremacy Clause “would have been evidently and radically defective.” Madison warned in Federalist No. 44 that, were the state constitutions to exert supremacy over the federal Constitution, “the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”
It didn’t take long for the question of legal supremacy to find its way to the Supreme Court. Coincidentally, both the Supremacy Clause and the issue of pre-Treaty debt were taken up in the same case in 1796. In 1779, during the War for Independence, Virginia had passed a law whereby all property within the state belonging to any British subject or which did belong to any British subject at the time of forfeiture was deemed to be the property of Virginia. Not only did the statute confiscate British-owned property, it arguably nullified private debts owed by Virginians to British subjects. In Ware v. Hylton, a British creditor sued an American debtor to recoup the money owed under a pre-war bond. Virginia’s statute seemed to prevent the creditor from collecting his debt, and the Court was asked to decide: did Virginia’s law or the Treaty of Paris control the collection of the debt?
Making his only appearance as a lawyer before the Supreme Court, John Marshall argued brilliantly on behalf of the American debtor. Justice Iredell, in the controlling opinion of the Court, ruled against the future Chief Justice: “Under this constitution, therefore, so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also, by the vigor of its own authority, to be executed in fact. It would not otherwise be the supreme law, in the new sense provided for, and it was so before, in a moral sense.” The Treaty of Paris thus superseded Virginia’s contrary law, and the Court declined to give effect to the state statute.
Later, Chief Justice Marshall would pen the landmark decision in McCulloch v. Maryland (1819), ruling that Maryland’s tax on the Second Bank of the United States ran afoul of the Constitution. Nullifying the state’s tax on the federal government, Marshall observed: “If any one proposition could command the universal assent of mankind, we might expect it would be this— that the government of the Union, though limited in its power, is supreme within its sphere of action.”
A barrage of new federal laws from Capitol Hill and a long line of Supremacy Clause cases marched across the legal landscape in the twentieth century, leaving a blotted trail of nullified state statutes. Today, “A state statute is void to the extent that it actually conflicts with a valid Federal statute,” (Edgar v. Mite Corporation (1982)), and such a conflict exists wherever compliance with both federal and state law is impossible; or where the state law stands as an obstacle to accomplishing the full purposes and objectives of Congress.
Thus, for example, the Supreme Court held in Raich v. Gonzales (2005) that California’s law permitting doctor-prescribed medical marijuana would frustrate Congress’s efforts to regulate the interstate marijuana market under the federal Controlled Substances Act. And, as Justice Stevens’ majority opinion casually reminds us, “The Supremacy Clause unambiguously proves that if there is any conflict between federal and state law, federal law shall prevail,” because, as the Court had previously opined, “‘no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress.’” (quoting Wickard v. Filburn (1942)). We might now wonder whether – in the Court’s view – there remain any regulatory “acts of the larger society which are not “pursuant to its constitutional powers” or which might still invade “the residuary authorities of the smaller societies.”
The third clause of Article VI establishes two important and related principles. First, its “Oath Clause” requires that “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . . . .” Once again, the Constitution is supreme, and a conscious effort was made for it to be supported and upheld not only by federal officers and judges, but by state officials as well. As Hamilton explained in Federalist No. 27, the “Oath Clause” would help ensure that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws.”
Second, the “No Religious Test” clause guarantees that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In the founding era, much of Europe and many of the new American states used religious tests to protect their preferred churches and religions. In England, the Test Act of 1672 required all public officers to swear a conspicuously anti-Catholic oath declaring disbelief in “any transubstantiation in the sacrament of the Lord’s Supper.” In 1789, Delaware, Maryland, Massachusetts, North Carolina, and Pennsylvania all had constitutions requiring that their public officials to swear belief in tenets of Christianity. The “No Religious Test” clause prevented such requirements for holding federal office, but left any such qualifications for state officers untouched.
Perhaps surprising to us today, this clause received a fair amount of debate and resistance from anti-federalists during ratification. In Massachusetts, for example, one “principal objection” to the Constitution was its lack of a religious test – “rulers ought to believe in God or Christ,” it was argued. Federalist Oliver Ellsworth defended the constitutional ban on religious tests, believing them to be “utterly ineffectual,” and arguing that “If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.” Ellsworth’s view won out, of course – although it remains a rather open question whether we, the people who appoint our public officers, have taken much care to choose those predicted “sincere friends to religion.”
Nathaniel Stewart is an attorney in Washington, D.C.
In Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.
The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.
After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.
The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.
Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases.
This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.”
When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.
In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.
The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.
Wednesday, August 18th, 2010
Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.
Articles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked articles play significant roles.
When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.” They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.
Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.
One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.
The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.
Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.
Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.
There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.
If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.
Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.
Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.
Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.
The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.
The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.
The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.
A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.
In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.
Monday, April 26th, 2010
Professor Joerg W. Knipprath
Southwestern Law School
Los Angeles, California
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.
47 Responses to “April 26, 2010 – Articles IV – VII of the U.S. Constitution – Guest Blogger: Joerg Knipprath, Professor ofLaw at Southwestern Law School”
Daniel Smith says:
Could states like California and Texas, with the approval of Congress, be divided thereby avoiding the presidential problem of 2000.
Shannon C. says:
The supremacy clause allows Federal Law to supersede State’s law. But doesn’t that mean the state’s don’t have to adhere to federal law if that federal law is unconstitutional-such as mandated healthcare?
Shannon C. says:
Do states have the right to secede from the Union?
Susan Craig says:
The provision for states to propose amendments makes a Constitutional Convention a lot more likely in the present situation as I (and I think most) thought it would entail a redo of the entire document. As I read it, at the next Governors meeting they could convene a convention specificly to draft a balance budget amendment or a strengthening of the 10th amendment change to put before congress. This makes the objections to a ConCon less daunting.
I, also, appreciated the reminder of the drafters humanity with the inclusion of the errata sheet in the last article.
Carolyn Attaway says:
@Shannon – according to sources, Texas v. White, 74 U.S. 700 (1869) was argued before the United States Supreme Court in 1869. The Court held in a 5–3 decision that the Constitution did not permit states to secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”. However, the decision did allow some possibility of the divisibility “through revolution, or through consent of the States”.
I find the last line fascinating, given all the current legistlation that is being formed in many states since this current administration came to office. It seems the 2 major issues, healthacre and immigration have caused the most uproar given the current number of states suing the federal gov’t over the healthcare mandate and commerce laws, and the new immigration law that was just signed in Arizona.
However, all states appear to be working on their State Legistlation to prepare for any possible future conflicts with Federal Law. For example on April 1, 2009, (as I understand it) the Georgia State Senate passed a resolution 43-1 affirming states’ rights based on Jeffersonian principles; and for other purposes. Acts which would cause a nullification of federal law include, but are not limited to:
Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press, and Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.
It will be interesting to follow the Supreme Court procedure regarding States Rights in the HealthCare Case. And as I understand it, the healthcare law cannot be challenged until it goes into effect and some one or entity is harmed by the law. Such as a shareholder of a company that goes out of business due to the costs/taxes imposed by the law, they can sue the gov’t for theft. Also, the commerce laws makes no provision to force someone to engage in interstate commerce.
Also, I appreciated the point made about the Federal gov’t being constitutionally obligated to wait for a State Governor’s request for assistance before intervention can be enacted. The contrast between Katrina and Arizona is striking regarding the assistance from the Federal Gov’t.
This is so interesting. Yesterday, my husband and I were having a discussion about the new immigration law in Arizona. I see it as unconstitutional and he see’s it as the state having to do something since the Federal Government has not fulfilled its obligation. We had to agree to disagree on this one.
Robert Shanbaum says:
Shannon C. wrote, “Do states have the right to secede from the Union?”
Apparently not. See, U.S. Civil War, 1861-1865; an example of a Constitutional dispute not settled by the judiciary.
Robert Shanbaum says:
Susan Craig, I don’t see where a “Governors meeting” could enter into any call for a Constitutional convention – a petition by “the Legislatures of two-thirds of the several states” is the requirement. The executives of the states are left out of the process.
Note that there’s no language that suggests that there would be any limit to the amendments that could be proposed at such a convention.
There’s a requirement in the Connecticut Constitution that requires, every 20 years, a referendum on whether to hold a constitutional convention to amend (or conceivably replace) the state constitution. This was most recently held in 2008, when 59% of voters answered “no.”
The reason the question failed, I think, is that it was seen as likely to attract activists – persons having one axe or another to grind – to a disproportionate degree. In the pursuit of one’s objective by that means, one runs a substantial risk of getting something one doesn’t want .
Robert Shanbaum says:
By the way, Shannon C., you may be interested in Andrew Jackson’s response to your question, given 33 years before the issue was settled with finality:
Jackson could run on; here’s the most apposite passage:
But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.
Susan Craig says:
State Suffrage? Hasn’t that been abrogated by the XVII amendment? Article V: 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.
The only thing that has been changed is that the State has been deprived of its Suffrage by the XVIIth amendment which removed from the state the right to select its Senators.
Mike Lowry says:
Article V is my favorite part of the entire Constitution, for it puts into the hands of the states a way to bring our runaway Congress back under our control. We need additional amendments to:
1. Impose lifetime term limits of 12 years on Congress
2. Impose a requirement for a Balanced Budget
3. Repeal the 16th Amendment and force implementation of a consumption tax(i.e., the Fair Tax.
4. Impose Congressional integrity that: (a) forces a statement of Constitutional authority to be attached to every bill, (b) forces an affidavit that they have read and understand every bill, (c) prevents them from exemting themselves from any law, and (d) prevents them from enacting any program for themselves that is not available to the general public.
Ron Meier says:
Thanks, your comments provide some interesting additional color and current relevance that I had not picked up on my initial reading and note taking.
Susan Craig says:
There is an annual meeting of Governors. If at this years convocation of governors, they got 34 of them to agree that an amendment was needed (say on clarification of the commerce clause, immigration or a balanced budget) would that be a call to convene a Convention for that limited purpose?
Lillian Harvey says:
I was thinking the same thing, Susan, after reading the Articles and Prof. Knipprath’s blog. Given the political climate today, we certainly can not count on Congress to act on behalf of the People as their will appears to serve the interest of their political party and ideology instead. That’s my opinion anyway. I also don’t feel we could count on all the state legislatures for the same reason. But, some guidance on setting up conventions within the States would be a start.
A question for the participants: if you were part of a constitutional convention in your state, what issues would you want addressed? Where do you think our biggest problem is? The one condition I would suggest is that the 50 United States remain intact, as I believe our strength has always been in our unity.
Could the State Legislatures limit the agenda of a Constitutional Convention? For example, could 2/3 of the states approve a resolution calling for a convention, but only to consider specific amendments? Any other topics would be off-limits, and the state delegation would be given strict instrutions to withdraw if any other topic was discussed. The only amendments that could be discussed and acted upon would be those approved by at least 2/3 of the states.
This would be a means to “control” a convention, and prevent it from spiraling out of control and overthrowing theConstitution itself.
This method thus imposes three “filters” (or checks, if you will), on a Constitutional Convention.
First, the agenda items would have to be approved by 2/3 of the states. No other topics would be permitted.
Second, the Convention, made up of delegations from each state that chooses to participate (even if they did not approve a resolution calling for the convention in the first place), would debate each proposed amendment. The Convention would decide (by majority vote) whether to propose an amendment, and would also approve the final language of the amendment. The debate at the convention would thus be a second “filter” (or check).
Third, any proposed amendments would be sent to the States for consideration (either by state legislatures, or by state conventions). This would provide the third “filter.”
Finally, the Convention would be public, and would probably generate a great deal of media coverage and discussion. This openness would serve as a sort of “brake” on the convention, because the public would not accept a radical departure from the Constitution.
Shannon C. says:
Lillian Harvey , I live in Georgia. My desires would be the following Amendments:
1. Balanced Budget
2. Term Limits-one term each, as I am so anti Congress:)
3. Repeal the 16th Amendment and say a human’s labor cannot be taxed (income tax). A consumption tax would be my choice.
4. Reword the 10th Amendment to make it understandable to the Big Government Lovers: If it isn’t in theConstitution, stay out of it!
Susan Craig says:
I feel the relevant portion is as follows; 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; If called for by their governors the individual states legislatures concurring would constitute a call for such a convention and it also says nothing about needing to start from scratch the scope could be as confined as necessary.
Thomas Soyars says:
@Susan — can you point out a section of the Constitution that makes the Arizona law unconstitutional? What about Article IV Section 4. “and shall protect each of them against Invasion” Look sto me like the federal government has failed in their duty and the state is taking it upon itself to remedy the problem. Congress has also failed to “establish a uniform Rule of Naturalization” (Article I, Section 8).
@Mike Lowry I agree with most of your recommendations but I have a problem with a balanced budget amendment that is too strict. There may be times (war, severe natural disaster, economic upheaval) that would require the government to run a temporarily unbalance budget. I would propose a measure that teh government be required to have a balanced budget over a rolling five year period. That way you could run a deficit in one or more years and be able to make it up in other years. It would give more flexibility but still provide for a balanced budget overall. I would also add an amendment that the federal government cannot pass unfunded mandates onto the states.
@Joerg Knipprath — the best blog yet (in my humble opinion).
Joe Rech says:
-Term limits – three for House, two for senate, two for Pres. Retirement gained in thirds for House, halfs for Senate and Pres.
-Balanced budget – except in times of national emergency (disaster or war)
-Repeal taxes – any current taxes enacted for a specific purpose and that purpose no longer exists, immediate repeal.
-VAT replace income tax, started at some level like 11% and NEVER to exceed 17%, not always levied on all levels of production and not always the same on all products (can be 11% on food, 17% on yachts?)
-limits on other taxes – 25% inheritance tax on $1mil or more, cap gains tax limits 15%
-reiterate oath – support and defend the constitution – not interpret the constitution.
Donna Hardeman says:
Lillian – I agree with Shannon’s List (which is almost identical to Mike’s list). The one thing I would point out, however, is my belief that Congress – either house – be allowed 2 terms. I believe you need some members in Congress who are not “lame ducks” i.e. who know they will have to vote with the will of the electorate if they expect to get elected again. However, by denying the long term benefits of continued “service” we would be denying the chance to get so firmly embedded that political favors, etc. become more important than the people.
Susan – could you clarify your point about Suffrage being denied? I’m responding to what I think you said but am not totally sure I understood you. Suffrage (voting) rights in the U.S. Senate have not been denied to the States. All States still have 2 Senators representing them. What changed was the manner of selecting the Senators. Originally it was the state legislature and now it’s by popular vote.
Shannon C. says:
Suasn Craig, You tell ‘em! Good points. Man, I am so glad this site exists. The only thing I wish was a little different is if the guest bloggers could opine in on a few of these a few times a day to answer a few questions.
Donna Hardeman says:
Susan – you and your husband seem to be on 2 different issues in discussing the immigration law. He is certainly correct in saying Arizona took action because the federal government wouldn’t. You may also be correct in saying it’s unconstitutional. Problem is, I couldn’t find the actual text online so I can only comment on what news is out there. It has been suggested that immigration laws are federal rights and not states’ rights. However, if the Arizonalaw simply mirrors the federal law in making it a state crime to be in Arizona illegally, I don’t think this would pose an issue. Also, it’s been suggested that you can’t racially profile by stopping someone solely for the purpose of checking identification. Jan Brewer claims the law simply requires identification to be carried so proof of legality can be shown if someone is stopped for a crime. This also would pose no constitutional problem. If you figure out where the text is, let me know and I can blog a little more intelligently on the subject. Do you have a specific challenge to the constitutionality?
Carolyn Attaway says:
Hello Shannon C. from a fellow Georgian!
Our State has to have a Balanced Budget, so I agree that those same rules should apply to the Federal Gov’t. The Pay As You Go is a complete disaster and Congress cannot even stick to their own rules.
I think it should be a 2-term limit, just because I personally feel that 1 term is not enough time some really good congressmen need to get issues addressed and completed. However, I feel every congressman should pledge to uphold the Constitution, and that impeachment should be allowed if they abuse their time in Congress.
Along with the 16th, I think the 17th Amendment should be repealed. Senators should represent their State’s interest, and quite going rogue.
The 10th Amendment can be reworded to be more specific, but I think the problem lies with the States giving to much of their power away in exchange for funds. Over time, all those little crumbs they have been throwing away to the Fed. Gov’t, have now been gathered together, and the States are realizing half their bakery is gone, and managed by someone else.
Another amendment that should receive serious consideration is a “Single Topic Legislation” requirement. Several states have a provision that each bill considered by the legislature must have a single topic only. So-called “omnibus” bills are prohibited, as are “earmarks” and “riders” that are unpopular expenditures attached to an important bill. (The Stimulus Package passed last year was a hodgepodge of pet projects. It is unlikely that those projects would pass if they stood alone).
In other words, every proposal considered by Congress would have to stand or fall on its own. This would help reduce deficit spending by forcing Congress to look at each proposal separately, and not as small earmarks on a gargantuan bill.
Debbie Beardsley says:
“Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. ” I am taking this to mean that the states must follow Federal law at a minimum. If so, how and why are the states allowed to “decide” to not follow federal law. Ie, California and the medical marijuana or the wonderful mayor of San Francisco declaring a sanctuary city????? Doesn’t this behavior and the lack of action on the part of the government a big slap in the face to the Constitution?
I am loving reading and learning but at the same time it is very disheartening to see how far away from theConstitution we have strayed.
Chuck Plano, Tx says:
In regard to Texas being able to devide itself as was suggested by someone, reference California and Texas dividing in order to prevent a repeat of the 2000 Presidential election, Texas has that right as stated in the Joint Resolution for the annexiation of March 1, 1845 . This right was mantained and specifically quoted in other settlements of border disputes with Mexico in the Treaty of Gadulape Hidalgo and the Treaty of The Gadsden Purchase. This is only one question regarding Texas as Texas entered the United States as a free and Soviourn Nation and yet it’s annexiation was by joint resolution and not a treaty. The Senate rejected a treaty to annex Texas four times in 1844 so did Congress have the right under the Constution to Annex a Nation?? The Constution is silent on this as it refers to territories, article IV Section 3, and not nations.
Andy Sparks says:
@Robert: Does might make right? Historically there have been many occasions where states have threatened secession: some of the western states when it seemed the U.S. would support a Spanish decision to close off the Mississippi during the early days of the Republic, some radicals in the New England states during the War of 1812, Thomas Jefferson even initially had secessionist language in the Kentucky Resolutions he drafted in 1798 (he was convinced to remove the offending passage before it was submitted). Why would parties threaten to secede if they didn’t think it was a viable option. While the Texas vs. White case put a law on the books regarding the legality of secession in 1869 after the Civil War, it would be interesting to see if it could be held up if challenged. The fact is that the Constitution is fairly quiet regarding the constitutionality of the issue.
Donna Hardeman says:
Guest bloggers coming in at the end of the day to review some of the comments and questions is a supremely good idea. Shannon – I must admit, it had occurred to me also but I’m glad you put it in writing. Maybe this idea could be incorporated into our learning process. We all have great comments and questions but the experts here could help.
Susan Craig says:
States Suffrage has been taken away and another Representative has been put in the Senators place. As I read the original articles the House of Representatives was to have been the representative body of the ‘vox populi’ whereas the Senators were to be the corporate representation of the State as a corporate whole. Now there is no longer a corporate representation of the the State but another directly selected Representative of the people.
Making it so that 2/3 was needed for ratification seems very strategic to me. It seems that the government enjoys that they don’t need everyone’s approval. (As in the 3/5 Compromise in 1787– WHY would being black ever make you less of a person?) I also appreciate that in Article 6 it is stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If religious discrimination isn’t acceptable in government, why is it still so prevalent?
If one state has a controversial law, like legalizing same sex marriage, would holding a convention be the first step towards creating an amendment? After that it would run through both the houses and then to the people…
Lynne Newcomer says:
Hi all, great stuff again.AZ,Govner is a brave soul, she has pushed the hand as no one has managed to.After reading J, Knippraths comments it seems to me that in Art.4 section 4,(protection fom invasion) might be the key in fighting for the Constitutionality of the States new law.However I have this nagging feeling that there is probably grounds to overturn it… in that perhaps it could be construded that the long, long history of NOT inforcing the laws that are on the book already my be percieved as consent.On top of that when an act that is against the law is ignored, people begin to think of it as “their right” to continue an set aside the law they know exists,but have rendered it without any reach.
Is this the reason that the laws have been ignored so long, was this the grounds that were maturing as the years wore on( I know that sounds like conspiracy stuff)but I find no sense is the past lack of willingness to act by DC.
hey! It’s Janine Turner. I agree! I would LOVE to get the Constitutional Scholars of the day to chime in at least once more during the day to answer questions. This was my original intent. I am working on it! I am so glad y’all have joined our blog. Isn’t it wonderful to have this opportunity to study our Constitution. I am learning so much – such as why the Preamble states, “We the People of the United States..” That’s a cook piece of trivia. Yes?
Shannon C. says:
Janine, GREAT thing you are doing. As a dad of two little girls, this is so important for their futures.
Can someone tell me if I have this right? The Supremacy Clause, as I understand it, means that federal lawsupercedes state law. However, I take the last sentence to mean in today’s language , “UNLESS the federal law is unconstitutional or goes against an existing state law.”
My point is, just because the federal government mandates somthing like healthcare purchasing, that does not mean it is constitutional.
J.D. Wiggins says:
Please comment on Article VI “Supremacy Clause.” Couldn’t this be used as a back door for making the Second Amendment null and void?
Joerg Knipprath says:
There are a lot of terrific questions here. I wish we could have a seminar to discuss them all. Let me just address a couple. ERL asked whether the states could limit a constitutional convention to a particular topic. If 34 states call for a balanced budget amendment, technically Congress would call a convention to discuss only that topic. But what if the delegates decided to push further? This is unknown territory, and why most constitutional law professors and most politicians oppose this method. It is less the states than the Congress that is likely to fear a run-away convention. Congress could refuse to forward to the states anything that went beyond the charge to the convention. However, there is a precedent for a run-away convention going beyond their charge and then submitting their product directly to the states. That would be the Philadelphia Convention of 1787. Their action is based on the 18th/19th century theory of popular sovereignty that the people, as soon-to-be Supreme Court Justice James Wilson said at the time, “The people may change the constitutions whenever and however they please.” Kept within the context of Article V, this is not even that radical. Could the people change the Constitution outside Article V, simply by gathering in convention (say, a huge town hall meeting over the internet)? That issue was argued before the Supreme Court in 1849, arising out of just such an attempt to adopt a new constitution in Rhode Island (which controversy produced a small “insurrection”—the Dorr War). The attorneys, including Daniel Webster and other high-powered talent, argued the issue of popular constitutionalism exhaustively; the Supreme Court then ducked the issue, deeming it a non-justiciable political question not suited for the courts. There is insight in that. Ultimately, these basic constitutional issues are political. Could today’s Congress refuse to pass along other constitutional changes demanded by a convention, without appearing to disregard popular will? The Confederation Congress couldn’t oppose the political appeal of the Convention’s action. On the other hand, today’s Congress may not be as sensitive to the popular will.
Joerg Knipprath says:
Let me answer a couple more. The single topic issue. There is a historical argument exactly like that. It arose out of the “line-item veto” controversy, when Congress in the 1990s tried to give the President a limited line-item veto over certain budgetary and tax issues. The Supreme Court found that to be unconstitutional. One argument in support of the law is that the Constitution requires each “bill” or joint resolution to pass both houses and be presented to the President. Some historians analyzed the term and argued that, at the time of the founding, the meaning of “bill” was understood to focus on a single subject. Plausibly, that would have required each budget item to be approved separately, rather than as one “Omnibus Budget Bill.” However, the practice since nearly the beginning has been to allow bills to address more than one subject.
Merely having governors call for a convention is not enough. Legislatures have to act. Do legislatures have to phrase their petitions identically? Or just enough for Congress to get the message? Again, that is ultimately a matter of political pressure. Could states rescind their petition before a convention is called? Probably yes.
As to the Supremacy Clause, for the states to be bound by a federal law, it would have to be constitutional. But sometimes states are prohibited from acting, even if there is no specific federal law against them. Sometimes the mere existence of a federal power in the Constitution prevents a state from acting is the state’s action conflicts with the purpose of the provision in the Constitution. That’s called “dormant federal power” theory. If the Constitutionis said to make a certain power “exclusive” in the federal government, the states cannot act in that area at all. One possible example is the federal power over immigration and naturalization. That is one potential problem for parts of the AZ law. If the Constitution intends for federal power to be exclusive, then states cannot act even in trhe absence of federal regulation or even in support of similar federal law. I have posted about this further on my blog.
ERL, I agree with a Single Topic/Issue Legislation. Not only would the ‘we, the people’ see the text (hopefully), we would also know who supports the legislation (or is beholden to special interests/lobbyists. And need I say, it would be a short bill! KIS – Keep It Simple!
Lillian Harvey says:
Hi Georgians and others… Virginian here ). These are my thoughts on the Constitutional Convention.
First fix some problematic fixes: Repeal the 16th and 17th Amendments.
-Repealing the 16th returns to Congress the authority to impose import and excise taxes only. How they work within that framework would be an interesting national discussion, whether it be through VAT or Fair Taxation. One thing I like in the Fair Tax proposal is that the percentage of your purchase that is the tax is on your sales receipt. If it is increased, the consumers, We the People, can demand to know why. I am against the Flat Income Tax because we all know that flat tax percentage will increase. Repealing the amendment that allows income to be taxed is critical to me.
-Repealing the 17th would put Senators back to work for the States they represent. If they are going to be there forever, they better be working for the State legislatures that sent them instead of a political party machine.
-I would love to see the language clarified on the recess appointments clause. If the Executive can’t get an appointment through the Senate during regular sessions, there is something wrong with the appointment. It sets up too much game playing and distracts from the work that needs to be done. Although worrying to me, it is not as important as the repeals of the aforementioned amendments. I am in a “less is more” mood.
From what the Professor has written, the Omnibus-type bills Congress seems to love appear to be the source of our budgetary problems. When I think about it, the greatest objection to the Healthcare bill was its size and scope. The call to kill that bill and deal with each component separately so the issues of access, cost and the overall impact on the economy/businesses could be better anticipated was the loudest from We the People. But the Executive and Congressional leadership absolutely refused to do this. Why?
Now we are in a real mess. You can’t just repeal the bad parts; the whole thing has to go. And it is my belief that it should. If the Congress can not do something correctly, that power to manage these issues should remain with the States. Then Congress can clean up their act or we clean up the Congress in the next election cycle.
Is there a way to write constitutional language insisting upon one bill, or issue, being dealt with at a time? It seems that the Supreme Court ruling against the line item veto was based on the notion of Congress legislating one issue at a time. Since that is not the case, is the Supreme Court decision relevant?
Shannon C. says:
Mr. Knipprath, thanks for your willingness to come back and answer some questions!!! You did a good job.
@WeThePeople – nobody ever said being black made someone “less of a person.” Remember, the more people in the state, the more representatives the state receives. The problem was if black slaves were counted as part of the population, the southern slave states would be entitled to more representatives. The northern states were against that. Of course, the southern states wanted to count the slaves so they could have the extra representatives.
The compromise was made so the south wouldn’t be “over-represented” in the northerners’ view. It never says anywhere in the Constitution that a black is “less of a person.”
Practically speaking, a state would get 1 representative for 30,000 white citizens, but it would take 50,000 black slaves to get another representative.
Robert Shanbaum says:
@Andy: I do not think that “might makes right”, but I think that might sometimes makes fact.
As you suggest, the Constitution itself is silent on the issue, although one can trace the commitment to a “perpetual” union stated in the Articles of Confederation through the “more perfect union” objective stated in the Constitutionas one approach to arguing in favor of the voluntary act of union being legally undoable.
Given that there is no power of secession clearly reserved to the states in the Constitution, it’s hard to see how the question matters much from a practical standpoint. Whether a state would be “allowed” to secede would be determined by the actions of the remainder of the Union, which could either force the issue or not – just like the last time the question arose. There’s no court in which the controversy might be meaningfully resolved; the seceding state would hardly be likely to recognize the jurisdiction of U.S. courts.
Given our avowed (or maybe I should say “presumed”) commitment to the right of self-determination, at least when it comes to other peoples, I don’t think that the actions of the U.S. in the Civil War were necessarily “right”, but I think I’m glad the Union was preserved – “right” or not.
Chuck Plano, Tx says:
So Robert if preserving the Union is something that is best for the whole why did the United States at the time Texas declared it’s independence from Mexico the United States was one of the first to recognize that or when the State of Georga declared her independence from the USSR and the other Baltic and Eastern Block countries did the same we seemed as a Nation to think that was the “right” thing to do. It was because we believed that “People” retain the right to self determination and that right is granted to us by “God” not the state.
Mary Lou Leddy says:
I am so excited about this project. Studying the Constitution has been a real eye opener for me. I must admit it is frightening to see how far this great country has veered from the Constitution . I am however uplifted by reading the blogs from all of you. I firmly believe that by becomimg more aware of the founders thoughts and words we can make much better choices of candidates who run for office. Candidates who are believers and supporters of theConstitution.
Special thanks to Janine & Cathy
Brenda Wilson says:
In readiing about a state honoring a homosexual marriage as law when they were not entered into this law was quite surprizing to me. This is what we call a slippery slope where it comes to recognizing something a violitile as this subject is. I would have a difficult time condoning this as constitutional but evidently it is. This is one thing I think the Framers of this constitution would never condone nor would give credence. So the amendment to this law had to be made so that a state would not have to be forced into an immoral state simply because they disagree and have a moral duty to uphold. These fianl articles have an impartail upholding in passing that they needed only witnesses and not a quorum of 2/3 of the staqtes representatives. This was so because one state never was there to cast its vote nd thereby be apart of this constitution.
Andy Sparks says:
Well put. I would point to the 10th amendment which specifies that those powers not specifically delegated to theConstitution are reserved to the States or the People as an argument for (at least) the possibility of secession. While I may disagree (somewhat) to your argument, I do not disagree with your sentiment. I, for one, am glad the Union won despite being born and raised in Texas.
“Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case…”
It shouldn’t be. The push for same sex marriage is clearly an attempt by some for whom liberty means license to impose their immorality on society at large, and clearly the full faith and credit clause was never intended to facilitate such perfidy.
Howdy from Texas. What another great day of national conversation about our United States Constitution. I thank you for joining us and I hope you read Articles IV-VII with your children and/or friend or loved one!!
Don’t forget to tell your children or children you know about our We the People 9.17 Contest! Entries due July 4th. Scholarships, travel, prizes!!
I thank Joerg Knipprath for his most detailed description of Articles IV-VII. What a blessing it is to have so many wonderful Constitutional Scholars grace us with their dedication and knowledge.
What I found fascinating about today’s reading has not actually been mentioned. It is in Articles VI and VII. In Article VI it states:
“The Senators and Representatives before mentioned and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several states, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public trust under the United States.”
First of all it states that EVERY government officer is bound by oath or affirmation to “support” the Constitution. Another intriguing aspect is the part about how “no religious test shall ever be required as a Qualification to any Office or public trust under the United States.” This seems logical due to the fact that not only was the religious persecution from overseas still fresh in their minds, but also because free enterprise does not grow when stifled by laws of religion.
However, Article VII states:
‘..done in Convention by the Unanimous Consent of the states present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eight seven…’
It is very obvious with the usage of the words, “Year of our Lord,” that our forefathers were not afraid to mention
God in their thesis, documents and/or governmental realm. They were brilliant men and they knew that every word of the Constitution would be analyzed in the future, down to the last comma. They also wrote the Constitution to be an everlasting document that was to be eternally preserved, protected and defended.
Thus, no love, or lack, of God could prohibit one from serving in government but that did not mean one was prohibited from referencing his or her God in governmental affairs. There appears to be no mention of separation of church and state.
This is reiterated in a slightly different way in the first amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
But we will discuss this one tomorrow.
I am also intrigued about how much our forefathers were concerned about treason.
Did anyone watch the History Channel’s, “America: The Story of Us” last night?” It was wonderful. The recounting of the revolutionary era reminds one that our forefathers were most sensitive to the tyrannical aspects of government intruding into citizens’ lives and as they recounted our “revolutionary” war tactics it reminds one that if we had, “played by the rules,” then we would have never won the war.
Thoughts to ponder…
More tomorrow. Blessings,
April 26, 2010
8 Responses to “April 26, 2010 – Articles IV-VII – Janine Turner”
Celeste Munoz says:
I have often wondered why the ‘separation of church and state’ has been such a huge issue in these modern times. It wasn’t until the 60′s I think that it became an issue. I remember when Kennedy was running half the country thought he would just be a papal puppet and were highly suspicious of his Catholicism though they had nothing against a good old christian. A sign of the times perhaps.
Louis Palermo says:
The First Amendment and the Fourteenth Amendment are two very important Amendments and two of my favorite. The First Amendment provides the most fundamental freedom to speak! It allows the people to assemble, practice their own religion and for freedom of the press to conduct their business. Recognition of this freedom curtails the power of the government. The founding fathers’ insight by this amendment was to limit the power of the government over the people.
The Fourteenth Amendment affords the people and the states valuable protections. It is the vehicle by which many statutes and laws are filed against the Federal government. If you will, it is the engine that maintains the system of checks and balances.
Looking forward to the Federalists papers.
I didn’t know where to leave you a note, so I’ll just do it here. Love your new website, and I appreciate what you and your partners are doing here!! Keep it up, and I’ll help spread the word.
Cliff Unruh says:
A key point to consider that may help explain our present situation:
Prior to 1912 the members of the U. S. Senate were not elected by popular vote but were appointed by their respective state legislatures (Article 1, Section 3). Under the original draft of our constitution the U.S. Senate represented the interests of the divers states and their respective state governments. The U. S. House of Representatives represents the people. Can you imagine any U.S. Senator who was appointed to his/her seat by the legislature back home ever voting for anything harmful to the local state government? In the absence of the 17th amendment would the health care bill have ever seen the light of day in the Senate? Obviously not. However, thanks to the 17th Amendment, the U.S. Senate was transformed into a “Super House of Representatives,” with the same concerns about winning reelection by popular vote. The interests of the individual states are no longer of importance to members of the U.S. Senate and we have all suffered as a result.
Debbie Beardsley says:
Whoa, hold on here. I do not think there was any reference to God intended by placing Year of our Lord after a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.
Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.
I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.
Dirk Newnam says:
Back to Debbie B. Letting the founders speak for themselves on the issue of their intent, from your last sentence.
“We have no government armed with power capable of contending with human passions unbridled by morality and religion…Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”…John Adams
“It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians: not on religions, but on the gospel of Jesus Christ! For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.”….Patrick Henry (He does not exclude other beliefs but does emphasize our foundation is Christian)
“Providence has given to our people the choice of their rulers, and it is the duty as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers”…John Jay (First Chief Justice of the United States Supreme Court )
There are literally hundreds of other quotes to choose from that strongly confirm our founders intent to be motivated and directed by God’s Word through the Bible.
Last I encourage anyone who reads this to read the stinging rebuke delivered by Ben Franklin on June 28th 1787 during the Constitutional Convention’s first days after little progress had been made writing the Constitution. It is on page 108 of the book “The Myth of Separation” by David Barton 1992. Read the follow two pages to find out the incredible turn of events that followed. If only it could be reprinted on the front pages of our nations newspapers. What a change we might see in how we go about governing.
The quotes above are from the same book. He’s written several other since on this subject.
As a side on “Year of our Lord” can you imagine the phrase being used today by our watered down courts, government, or our media! It might remind of of where we came from, as a nation.
Today, our guest Constitutional Scholar of the day, Mr. Troy Kickler’s, insightful essay states, “Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that interest, reputation, and duty would bind the representatives to the Constitution and public opinion.”
I find this quote intriguing, especially the section ”..duty would bind the representatives to the Constitution and public opinion.” This singular line encapsulates wisdom and inspires reflection.
The first reflection is upon the word, “duty.” Duty seems to be a word that is lost in our American culture today. As the decades descend from World War II, the sense of duty to ones country appears to be diminishing. I looked up the word, “duty,” and found the following definition: ”a social force that binds you to a course of action demanded by that force. ” The definition was followed by a quote by John D. Rockefeller, Jr., ”every right implies a responsibility; every opportunity an obligation, every position, a duty.” Today the focus of America’s representatives as well as many Americans and the American culture seem to be one of self-interest. With the blessing of the Providential rights that are secured for us in our Constitution lay a responsibility. One of those responsibilities is to know, respect and understand the United States Constitution, as well as to encourage others to do so. The same should apply to the American Culture. How far we have drifted from the days when patriotism and love of country were, as President Ronald Reagan said, “in the air.” Is our country perfect? No. But as the Former Senator Patrick Moynihan said, “show me a better one.” We, as patriots who love our country and appreciate the founding principles upon which she was founded, need to rise to counter the palpable negativity that permeates our air today. One has to question whether our Congressional representatives are bound to their duty of their country and constituents, or to themselves.
The second reflection is upon the statement that duty would bind representatives to the “Constitution.” “..bind one to the Constitution.” The more I read the United States Constitution and the Federalist Papers, the more I realize how much we have strayed from the Constitution in cultural thought, personal awareness, legislative acts and supreme court rulings. This slow usurpation is due to a lack of knowledge and by a lack of pressure applied on our representatives to uphold the Constitution’s principles. As a Republic we rule through our representatives, thus, our vote is our voice. The checks and balances of our government begin with us. Thus, I suppose, there is a responsibility that we, as patriots, must own – if our representatives have grown callous and irreverent regarding the Constitution, it is because we have allowed it by our lack of diligence and duty to hold them accountable. How well do they know the United States Constitution? How do they intend to abide by its stipulations? These should be the questions of paramount importance.
The third reflection is upon the two words, “public opinion.” “Duty would bind the representatives to the Constitution and public opinion.” Public opinion seems to be virtually ignored by our representatives today. As mentioned in Federalist Paper No. 22 and in previous papers, Publius had a respect for the “genius of the people.” The American people have a genetic disposition and inherent ability to seek the truth and know the truth and American patriots rise to the challenge of duty. ”The experience of history” has proven this to be a tried and true trait of Americans. All of the attempts by the current branches of government to “reason” their way around the Constitution and govern a Republic without respecting the Constitution, and the history of the American spirit, will do so in vain. Duty to preserve our great country, founding principles, bill of rights and free enterprise will be the Paul Revere ”call to action” of our day.
May 28, 2010
Thank you for reading and blogging with us today in our 90 in 90 = History Holds the Key to the Future Program! Tomorrow is Day 5, and will be our last day on the United States Constitution before we embark upon the Federalist Papers. Please join us in blogging on the Amendments tomorrow. If you have been quietly reading along, we want to hear from you! And please continue to forward our website www.constitutingamerica.org to your friends, and post on Facebook, Tweet, mention on LinkedIn – help us spread the word!
A big thank you also to Professor Knipprath for your insightful comments on Articles IV – VII. I hate to admit that I am one of those people you speak of in your first sentence, for whom Articles IV – VII were terra incognita! Yet, these are some of the most important Articles in the Constitution: the amendment process arguably one of the most important of all.
With a 2/3 vote required in both houses of Congress, or 2/3 of state legislatures required to call for a constitional convention to propose an amendment, and then 3/4 of the State Legislatures required to ratify, or 3/4 of the states ratify in conventions, I marvel that the Constitution has been successfully amended as many times as it has. Our founders brilliantly put mechanisms in place to ensure that the Constitution be difficult, but not impossible to amend.
I noticed in the blog comments today many ideas as to what our next Constitutional amendments should be. These efforts may take many years. Various members of Congress have been working for decades to pass a Balanced Budget Amendment , for example. But thanks to the founders’ wisdom and vision, when the next Constitutional Amendment is passed, we will be assured it has been thoroughly vetted, rigorously debated, and that a super majority of the Congress and States (and therefore a majority of Americans), will agree it is necessary.
Thank you again for your participation, and contributions to our understanding of the United States Constitution. Keep spreading the word!!
See you in the morning!
Tuesday, April 27th, 2010
2 Responses to “April 26, 2010 – Articles IV – VII – Cathy Gillespie”
Richard Heck says:
First thank you for mentioning God and how important He was and is to our country and how important He was to our founding fathers. I had a question on the election of Senators. Why was this changed and what implications did or does it have on how our government runs today? I saw where either you or Janine mentioned this last week and how health care might have been different if we were still electing them the original way.
Hi Richard – I recommend two excellent books that provide background on the U.S. Constitution and and the Amendments:
Seth Lipsky’s THE CITIZENS CONSTITUTION: AN ANNOTATED GUIDE, 2009 and the HERITAGE GUIDE TO THE CONSTITUTION edited by Ed Meese, Mathew Spalding and David Forte.
In brief, Amendment XVII was approved by Congress on May 12, 1912 and ratified by the required 3/4′s of the State Legislatures in less than 11 months. Most of the votes in the State Legislatures were overwhelmingly in favor of ratification, 52 of the 72 state legislative chambers voted unanimously in favor and in all of the 36 ratiflying States’ legislatures, votes against ratification totalled only 191 – 152 of these votes came from the lower chambers of Vermont and Connecticut. It is interesting it took the U.S. Congress so long to approve this Constitutional amendment, which had been considered in one form another since 1826. In 1912, Senators were already being picked by direct election in 29 of the 48 States. States moved to direct election of Senators through a process of non-binding primary elections by the people, whereby state legislators promised to vote for the candidate the people selected by direct election. State laws were even enacted that required State legislative candidates to sign pledges to vote for the Senate candidate the people selected in their “non binding” eection. (Heritage Guide the Constitution, page 413 – 414).
Electing U.S. Senators by the State Legislatures had become problematic over the years because many State Legislatures were deadlocked and couldn’t agree on a candidate, thus leaving some states without representation in U.S. Senate, often for more than a year. Corruption and Reconstruction politics contributed to these deadlocks. The Indiana Senate seat, for example, stayed empty for two years due to tension between the northern and southern regions of the state.
The argument for direct election of U.S. Senators was to make Congress more “democratic,” but this change also stripped away an important protection built into the Constitution by the framers to protect States’ rights. Because the health care bill puts new burdens on states, the argument could be made that had U.S. Senators still been elected by State Legislatures, they would have been more oriented towards protecting the interests of their State’s government.
Interestingly, Georgia Democrat Zell Miller called for the repeal of the 17th Amendment in 2004 before his retirement, saying “federalism has become to this generation of leaders some vague philosophy of the past that is dead, dead, dead. Reformers of the early 1900′s killed it dead and cremated the body when they allowed for the direct election of the U.S. Senators.” (The Citizen’s Constitution, an Annotated Guide, Page 66).