Why Seventeenth Amendment Can't Be Repealed
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By Devvy
When the First Continental Congress was convened via a resolution of the Congress of the Confederation, one of the first issues discussed on May 29, 1787 [1], was the balance of power for a newly created federal government:
3. Resolved, that the National Legislature out to consist of two branches.
4. Resolved, that the member of the first branch of the National Legislature ought to be elected by the people of the several States every _____ for the term of _____; to be of the age of ____years at least and so forth.
5. Resolved, that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of ____ years at least and so forth.
James Madison wrote in The Federalist Papers #45: "The Senate will be elected absolutely and exclusively by the State legislatures." [2] John Jay, co-author of The Federal Papers is quoted: "Jay then informed Governor Clinton that, unlike the Senate, where the two-thirds rule was in force for treaties and impeachment, the lower house had nothing to do with treaties; it represented the people whereas the Senate represented the states--for the Federalists always a significant distinction." [3]
The framers of the Constitution wisely understood the absolute necessity of ensuring we the people would have the right to vote for our representative in Congress, and at the same time because they all jealously guarded freedom and liberty, the states must also have equal representation. We the people would have the ability to remove via the ballot box, miscreants and scoundrels, while the state legislatures could recall their U.S. Senators who acted against the best interests of their state.
The Senate was supposed to be a sort of checks and balances, but that noble concept disappeared when U.S. Senators were then voted into office by special interests and mobs demanding more and more from the people's treasury. [4] The absolute right of the states to equal representation was wiped out when the Seventeenth Amendment was declared ratified on April 8, 1913.
I have been on the Seventeenth Amendment non ratification since the mid '90s. More and more Americans are beginning to fully understand the issue of sovereignty, federal jurisdiction and rights of the states. The long over due states' rights movement is growing at lightening speed. Americans are learning about the Tenth Amendment, the Supremacy Clause, the real meaning of the Welfare Clause and nullification. [5]
However, there are some issues under the legislative authority of the U.S. Senate that can't be resolved by the Tenth Amendment -- or not easily without huge court battles. But, then, again, our corrupt judicial system at the federal level is part of the problem. Federal judges, including U.S. Supreme Court Justices, are beholden to the U.S. Senators who vote to confirm them. Critical duties of the U.S. Senate, besides confirming federal judges: confirming cabinet heads and ratifying trade agreements. Both areas that can and have had a negative impact on the states of the Union over the decades.
Just look at the destruction of jobs in the states because of "agreements" like NAFTA (No American Factories Taking Applications) and treaties like CAFTA and GATT/WTO. Millions of jobs shipped overseas, to Mexico and South America while Americans stand in unemployment lines. Look at the destruction to our industrial and manufacturing sectors. Nearly wiped out along with millions of jobs because of NAFTA and GATT/WTO. The harm to our nation from our illegal participation as a member of the communist UN and the treaties coming out of that rancid operation. That is why the states were to have equal representation in Congress -- to check a president on treaties.
Several major efforts are underway to repeal the Seventeenth Amendment, but is that the right course to take?The thorny issue here is that you can't repeal an amendment that clearly was not ratified by enough states.
We find in the official publication called 'Constitution Jefferson's Manual and Rules of the House of Representatives of the United States Congress, Eighty-Seventh Congress, Thomas Jefferson, said in part: "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.
Many states were out of session during the time of the ratification process. Since several states were out of session at the time of the vote, have they been deprived of equal Suffrage in the U.S. Senate because they did not participate in the ratification of this amendment? Have those states been deprived of equal suffrage in the Senate as well as the states which took no action, like the State of Georgia?
Is fraud (non ratification) enough to allow a state to declare it null and void?
Jefferson also wrote in the manual cited above: "Question has arisen as to the power of a State to recall its assent to a constitutional amendment (V. 7042)." What about that?
In March 2009, I personally went to the National Archives in Washington, DC, and joined with two colleagues. Our purpose was to obtain, which we did, court certified documents regarding the ratification of that amendment. Having obtained them, there is no doubt that amendment was not ratified by enough states at the time. Five states allegedly didn't ratify until months after then Secretary of State, William Jennings Bryan, declared it ratified.
How do the states resolve this critical issue? It will not come from Congress; that is a given cemented in concrete.
I am not a lawyer and have no legal training. However, one thing I do believe is that it is absolutely wrong to try to correct a legal fiction using a method which would give legitimacy to that fiction. The same constitutional crisis exists over Obama/Soetoro/Dunham and the growing call for impeachment. He is without question a usurper. You cannot impeach someone who has legally never held that office. Giving legitimacy to fraud demeans our Constitution and takes away honor and integrity for our system of government purchased with rivers of blood.
What options do the states of the Union have should just one state legislature take the courageous step in challenging the ratification?
A state legislature could pass a resolution which would be sent to their Attorney General to file a lawsuit with the U.S. Supreme Court. Why the Supreme Court? Because it would be an original jurisdiction case. I think this falls under Art. III, Section 2 of the U.S. Constitution: 
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
Such a lawsuit most certainly is a controversy to which the United States would be the prime party.
This isn't about politics, it's about the law and the Constituton:
"In reference to the contention that the issue of the ratification of any amendment to a constitution presents only a political question, analysis of the determination of this issue by various state courts is very probative. The great weight, if not the entire weight, of state authority is that issues concerning the ratification of amendments to state constitutions are properly judicial and not political issues. This proposition of law was precisely summarized by In re McConaughy, 106 Minn. 392, 119 N.W. 408 (1909), which held, after lengthy review of the authorities on this point, that an issue regarding the ratification or adoption of a constitutional amendment was clearly to be judicially resolved. Indeed, the U. S. Supreme Court has held that questions regarding the existence or non-existence of state laws presents a judicial question. In Town of South Ottawa v. Perkins, 94 U.S. 260 (1877), the Court succinctly stated:
"There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a State is a law or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties . . . And whether it be a law or not a law is a judicial question, to be settled and determined by the courts and judges", Id., at 267.
"... but, on general principles, the question as to the existence of a law is a judicial one, and must be so regarded by the Courts of the United States," Id., at 268.
"When an issue regarding the existence of a law is raised, the Supreme Court has expressly sanctioned courts to determine the validity of such law by review of any public documents available which render aid to the judicial mind. This was clearly stated in Gardner v. Collector, 73 U.S. (6 Wall.) 499, 511 (1868), where the Court stated:
"We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such questions; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule."
"An inexhaustive review of the multitude of state cases holding that an issue regarding the adoption of a constitutional amendment presents a judicial question is particularly appropriate under these circumstances. The substance of these cases is that state courts will hold an amendment invalid if it has not been properly and lawfully adopted, this invalidity being determined by examination of many public records, most notably legislative journals. It must also be noted that while state courts do inquire into the adoption of amendments, they sometimes have a different rule in regards to legislation, with some courts following the "journal entry rule," and others following the "enrolled bill rule;" see Field v. Clark, 143 U.S. 649, 12 S. Ct. 495 (1892)." [7]
What about treaties in place should the amendment be declared not ratified? Realistically speaking, you couldn't just declare all the treaties passed since 1913 null and void on the spot, even though technically it would be correct. The senators voting to ratify those treaties had no legal right to be seated in the Senate and vote for any treaty. However, the house can introduce a bill just like H.R. 4759, which has been rotting in the House of Representatives since March to get us out of NAFTA. Simply apply the normal process to get us out of those treaties.
In a calm, rational manner, the problem can be worked. If a state legislature is happy with the individual "voted" into office to serve in the Senate, they can keep that individual. Otherwise, that counterfeit Senator is gone.
What about federal judges? Dr. Edwin Vieira provides a step by step legal explanation of exactly how Congress has the authority to remove federal judges in his book, How to Dethrone The Imperial Judiciary. [8] Every member of Congress should read it as well as citizens.
There are those who believe the state legislatures are as corrupt as Congress and should the Seventeenth Amendment be declared null and void, it would solve nothing because the old crony system would ensure political sell outs would still be favored by a state legislature and sent right back to Washington. Does anyone doubt for a moment that if the Seventeenth Amendment were not in place the Arizona State Legislature would have allowed McCain to stay in Washington, DC, while their state has been invaded with illegals considering McCain's willingness to support amnesty? I believe that legislature would have recalled McCain years ago and replaced him. That is the beauty and power of states rights --- without the Seventeenth Amendment. Clearly, something the shadow government fears.
Certainly some states at this point in time are hopeless; California and New York come to mind. But, given the current political environment, rage blowing across this country and the effort to elect individuals of integrity who pledge their support to the U.S. Constitution and their state constitution to the state houses, I believe it's a whole different ball game now.
This issue is one of the reasons why it will be so important to boot out as many state representatives and state senators as possible in November who do not support a return to constitutional government and the importance of their power in fighting back against the Outlaw Congress. In order to fully regain their sovereignty the Seventeenth Amendment must be challenged. That will not happen until January when the new state body is sworn into office and their desks begin to pile up with snail mail letters from constituents demanding this issue get addressed during the current session (2011).
Proof the Seventeenth Amendment was not ratified: All court certified documents
from the National Archives are scanned here:
List of over 1100 state reps and senators who either voted for a Tenth Amendment
Resolution or supported a bill which didn't make it out of committee. (Not in alphabetical
order all the way) Help get them reelected:
[1] Max Farrand, The Records of the Federal Convention of 1787, vol. 1 [1911]
[2] Federalist Papers #45
[3] John Jay and the Constitution
[4] Quote from the late Taylor Caldwell, brilliant author; Dear and Glorious Physician, The Story of St. Luke.
History has a way of looking familiar and repeating itself.
[5] Tenth Amendment Center
[6] Constitution Jefferson's Manual and Rules of the House of Representatives of the United States Congress
[7] Short Exposition re Law of Ratification of Constitutional Amendments
by Lowell Becraft, Jr. -
[8] How to Dethrone The Imperial Judiciary

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