Repeal the 17th Amendment and restore control to the States of this United States Of America

The Seventeenth Amendment (Amendment XVII) to the United States Constitution established direct election of United States Senators by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which Senators were elected by state legislatures. It also alters the procedure for filling vacancies in the Senate, to be consistent with the method of election. It was adopted on April 8, 1913.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

[edit] History

Originally, each Senator was elected by his state's legislature to represent that state in the Senate.^[1] It was believed that while an unqualified candidate might win a popular-vote majority through demagoguery or superficial qualities, the legislature, which could deliberate on its choice, and whose members had been selected by their constituents and had experience in politics, would be safe from such folly. Finally, election by the legislature was expected to insulate Senators from the distraction of public campaigning for election or re-election, leaving them free to concentrate on the great business of the federal government. This last purpose was also served by the six-year term for Senators, compared to the two-year term for U.S. Representatives.
Election by legislatures generally occurred without major problems up to the mid-1850s. There were frequent vacancies of a few days up to several months, but these nearly always occurred when Congress was not in session. In the 1850s, the sectional crisis over slavery led to increasing partisanship and strife. As a result, Indiana failed to elect a Senator from March 1855 to February 1857, while California failed to elect one from March 1855 to January 1857.
California had previously failed to elect from March 1851 through January 1852, missing two months of the first session of the 32nd Congress, while Delaware failed to elect from September 1839 to January 1841, missing the entire first session and half the second session of the 26th Congress.
After the Civil War, the problems multiplied. In one case in the mid-1860s, the election of Senator John P. Stockton from New Jersey was contested on the grounds that he had been elected by a plurality rather than a majority in the state legislature.^[2] Stockton asserted that the exact method for elections was murky and varied from state to state. To keep this from happening again, Congress passed a law in 1866 regulating how and when Senators were to be elected from each state. This was the first change in the process of Senatorial elections. While the law helped, there were still deadlocks in some legislatures and accusations of bribery, corruption, and suspicious dealings in some elections. Nine bribery cases were brought before the Senate between 1866 and 1906, and 45 deadlocks occurred in 20 states between 1891 and 1905, resulting in numerous delays in seating Senators. In the worst case, Delaware failed to elect from March 1899 to March 1903; by the end of this period both of Delaware's seats were vacant for two years.^[3]
Reform efforts began as early as 1826, when direct election was first proposed. In the 1870s, citizens petitioned the House of Representatives for direct election. From 1893 to 1902, support for direct election increased considerably. Each year during that period, a constitutional amendment for direct election was proposed in Congress, but the Senate rejected it. In the mid-1890s, the Populist Party put direct election of Senators in its platform, but neither the Democrats nor the Republicans paid much notice at the time.
Direct election was also part of the Wisconsin Idea championed by Republican Senators Robert M. La Follette, Sr., a progressive, and George W. Norris, a reformer. In the early 1900s, Oregon pioneered direct election of Senators. Oregon tried various procedures until success in 1907, and was soon followed by Nebraska.
Popular support of Senatorial election reform grew rapidly at this time. In 1905, William Randolph Hearst acquired Cosmopolitan (then a general-interest magazine), and made it an advocate of direct election. In 1906, Cosmopolitan published "The Treason of the Senate", a series of scathing articles by "Muckraking" reporter David Graham Phillips, which described Senators as corrupt pawns of industrialists and financiers.^[4] A prime example was Senator William A. Clark of Montana.^[5]
Increasingly, Senators were elected based on state referenda, similar to the means developed by Oregon. By 1912, as many as 29 states elected Senators either as nominees of party primaries, or in conjunction with a general election. These de facto directly elected Senators supported legislation to promote direct election, but to make direct election general, a constitutional amendment was required.
The Senate had consistently rejected the proposed amendment, and so direct election advocates acted through the states. Amendments to the Constitution are normally proposed by Congress, a two-thirds vote of both Houses being required. However, under Article V, two-thirds of the states may apply for the creation of a convention to propose amendments and the Congress must then create one.
By 1910, almost two-thirds of the states had called for such a convention, which put pressure on the Congress to propose the amendment and eliminate the need for the convention.
Consequently, in 1911, Senator Joseph L. Bristow of Kansas submitted an amendment, supported by Senator William Borah of Idaho, himself a product of direct election. Eight Southern Senators and all of the Republican Senators from New England, New York and Pennsylvania opposed Bristow's amendment. However, the Senate now included many Senators recently chosen by de facto direct election, and they supported the amendment. The Senate passed the amendment on June 12, 1911.
The House debated for almost a year, and passed the amendment on May 13, 1912.
The campaign for ratification was led by Borah and other directly elected Senators. Another important figure was Professor George H. Haynes of Worcester Polytechnic Institute, a political scientist whose scholarly work on the Senate showed the need for direct election.
The amendment was ratified by three states within a month (Massachusetts, Arizona, and Minnesota). However, there was no further progress until 1913, when state legislators elected in 1912 took office. Nine states ratified in January 1913, seventeen in February, four in March, and three in April. On April 8, 1913, the Seventeenth Amendment was adopted when Connecticut became the 36th state (out of 48) to ratify. Louisiana also ratified the amendment in June. Utah was the only state to explicitly reject the amendment.
The Seventeenth Amendment took effect a year and a half prior to the 1914 Senate elections.

[edit] Effect

The Seventeenth Amendment restates the first paragraph of Article I, § 3 of the Constitution, but replaces the phrase "chosen by the Legislature thereof" with "elected by the people thereof".
The amendment also supersedes part of the second paragraph of Article I, § 3. The phrase "and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies" is superseded by the second paragraph of the amendment.
Under the original language, when a Senate seat fell vacant, the legislature, which could act immediately, was expected to elect a replacement immediately. If the legislature was not in session, the governor could appoint a person to occupy the vacant seat, but that person would serve only until the legislature next met, when it was expected to elect a permanent replacement.
However, unlike election by the legislature, election of a replacement by popular vote takes a fair amount of time and cost, and may not be realistically possible. For instance, there may be only a few weeks or months left before the end of the present Senate term. Therefore, when and how popular elections of replacement Senators are held is up to the legislature. The replacement Senator appointed by the governor serves until the election specified by the legislature, if one is held, or else till the end of the term.
Several states have interpreted this passage as giving the legislature power to bar appointment by the governor, so that vacancies may only be filled by election. As of 2010, Connecticut, Oklahoma, Oregon, and Wisconsin do not permit appointment by the governor.
The Seventeenth Amendment does not affect the restriction in Article I, § 4, cl. 1, which exempts "the place of Chusing Senators" from the power of Congress to "make or alter" state election laws. If Congress could regulate the "place of Chusing Senators" when the state legislatures chose Senators, then Congress could dictate where a state's legislature had to meet for that purpose, which would violate state sovereignty.

[edit] Direct elections held in the states

The following is a list of all direct elections to the Senate.^[6]

Before ratification of the Seventeenth Amendment: 1906: Oregon Class 2, Vacancy, term ending 1907 Class 2, Full term, 1907–1913 1908: Nevada Class 3, Full term, 1909–1915 1911: Arizona (pending statehood) Class 1, Long term, 1912–1917 Class 3, Short term, 1912–1915 1912: Colorado, Kansas, Minnesota, Oklahoma Class 2, Full term, 1913–1919

After ratification of Seventeenth Amendment: 1913: Maryland, Virginia Class 1, Vacancy, term ending 1917 1914: All 32 Class 3 Senators, term 1915-1921 1916: All 32 Class 1 Senators, term 1917-1923 1918: All 32 Class 2 Senators, term 1919-1925

Oklahoma, admitted to statehood in 1907, chose a Senator by legislative election three times: twice in 1907, when admitted, and once in 1908. In 1912, Oklahoma re-elected Robert L. Owen by advisory popular vote.
New Mexico, admitted to statehood in 1912, chose only its first two Senators legislatively.
Arizona, admitted to statehood in 1912, chose its first two Senators by advisory popular vote.
Alaska, and Hawaii, admitted to statehood in 1959, have never chosen a U.S. Senator legislatively.

[edit] Proposal and ratification

Congress proposed the Seventeenth Amendment on May 13, 1912 and the following states ratified the amendment:^[7]

1. Massachusetts (May 22, 1912)
2. Arizona (June 3, 1912)
3. Minnesota (June 10, 1912)
4. New York (January 15, 1913)
5. Kansas (January 17, 1913)
6. Oregon (January 23, 1913)
7. North Carolina (January 25, 1913)
8. California (January 28, 1913)
9. Michigan (January 28, 1913)
10. Iowa (January 30, 1913)
11. Montana (January 30, 1913)
12. Idaho (January 31, 1913)
13. West Virginia (February 4, 1913)
14. Colorado (February 5, 1913)
15. Nevada (February 6, 1913)
16. Texas (February 7, 1913)
17. Washington (February 7, 1913)
18. Wyoming (February 8, 1913)
19. Arkansas (February 11, 1913)
20. Maine (February 11, 1913)
21. Illinois (February 13, 1913)
22. North Dakota (February 14, 1913)
23. Wisconsin (February 18, 1913)
24. Indiana (February 19, 1913)
25. New Hampshire (February 19, 1913)
26. Vermont (February 19, 1913)
27. South Dakota (February 19, 1913)
28. Oklahoma (February 24, 1913)
29. Ohio (February 25, 1913)
30. Missouri (March 7, 1913)
31. New Mexico (March 13, 1913)
32. Nebraska (March 14, 1913)
33. New Jersey (March 17, 1913)
34. Tennessee (April 1, 1913)
35. Pennsylvania (April 2, 1913)
36. Connecticut (April 8, 1913)

With Connecticut's ratification, three-fourths of the states had ratified and so the amendment was adopted. The amendment was subsequently ratified by the following states:

1. Louisiana (June 11, 1913)
2. Delaware (June 25, 2010)^[8]

The following state rejected the amendment:

1. Utah (February 26, 1913)

The following states did not ratify the amendment:

1. Alabama
2. Kentucky
3. Mississippi
4. Virginia
5. South Carolina
6. Georgia
7. Maryland
8. Rhode Island
9. Florida

As Alaska and Hawaii were not states when the amendment was adopted, their admissions to the Union in 1959 simply required their adherence to the Constitution in its already-amended form.

[edit] Advocacy for repeal

A movement exists that calls for the repeal of the Seventeenth Amendment, generally opposing it on grounds of federalism and taking away too much power from the states. Proponents of repeal have also accused Senators of being hostage to special interests, the same charge that helped pass the Seventeenth Amendment in 1913.^[9] Repeal gained renewed interest in 2004, when U.S. Senator Zell Miller of Georgia, shortly after announcing his intention to retire from the Senate, introduced a resolution in the Senate to repeal the Seventeenth Amendment. Miller said:

Direct elections of Senators ... allowed Washington's special interests to call the shots, whether it is filling judicial vacancies, passing laws, or issuing regulations.^[10][11]

Miller's resolution never made it out of committee; it has been noted that it is unlikely for Senators elected by the popular vote to back a change to the method that worked for them.^[12]
The movement to repeal gained new prominence in 2010, with many leaders of the Tea Party movement advocating its repeal on grounds of restoring power to the states.^[13][14] The issue affected several Republican primaries of 2010; support of the amendment was portrayed as a "Washington insider" position.^[15] Tim Bridgewater, one of the candidates who ousted Republican Senator Bob Bennett in the Utah Republican Nominating Convention, advocates repeal of the Seventeenth Amendment. In the Republican primary of Idaho's first district, both NRCC-endorsed candidate Vaughn Ward and state representative Raúl Labrador initially advocated repeal of the Seventeenth Amendment. Ward later said that he supported direct election of Senators, and clarified that his opposition to the Seventeenth Amendment meant that he was in favor of term limits for Senators.^[16] Ward lost the primary to Labrador, who maintained his position in favor of repeal.^[17] In Ohio's 15th District, Republican candidate Steve Stivers initially supported repeal before backing off almost immediately after Representative Mary Jo Kilroy, his Democratic opponent, attacked him over this position.^[15]
Republican Representative Louie Gohmert of Texas's 1st congressional district advocated repeal in March 2010.^[18][19]
Cleon Skousen's The Five Thousand Year Leap (1981) is a source for many Tea Party supporters and candidates who have argued for the amendment's repeal. Skousen wrote, “Since [enactment] there has been no veto power which the states could exercise against the Congress in those cases where a federal statute was deemed in violation of states’ rights." The book gained higher prominence in 2009 after Glenn Beck recommended it for the Taxpayer March on Washington-9/12 groups.^[20]

[edit] Advocacy for prohibiting gubernatorial appointment to the Senate

[edit] 2008–2009 Senate vacancies

With the commencement of the Obama administration in 2009, four sitting Democratic Senators left the Senate for executive branch positions: Barack Obama (President), Joe Biden (Vice President), Hillary Rodham Clinton (Secretary of State), and Ken Salazar (Secretary of the Interior). Controversies developed about the successor appointments made by Illinois Governor Rod Blagojevich and New York Governor David Paterson. This created interest in abolishing Senate appointment by the governor.^[21][22]
Currently, 46 of the 50 states permit appointment by the governor; only Connecticut, Oklahoma, Oregon, and Wisconsin rely completely on special election. In eight other states, the governor may fill a vacancy by appointment, but a special election is to be held as soon as possible. In the remaining 38 states, the governor may fill a vacancy by appointment, and the appointed Senator will serve until a replacement is chosen by election at the time of the next general election.
The state of Massachusetts has seen considerable recent activity on both sides of this issue. Massachusetts enacted a law requiring a special election in 2004; the Democratic legislature wanted to prevent Republican Governor Mitt Romney from appointing a Republican replacement if Democratic Senator John Kerry had won the 2004 presidential election. After the death of Senator Ted Kennedy in 2009, and with Kennedy's encouragement before his death, the state changed its law to allow the governor to appoint an interim Senator.^[23] Massachusetts still required a special election to be held; a "caretaker" appointment of Paul Kirk by Governor Deval Patrick to succeed Kennedy^[23] was followed by a January 2010 special election in which Republican Scott Brown won.
It has also been noted that since the passage of the Seventeenth Amendment, nearly one quarter of all Senators seated (182) first arrived in the Senate by appointment.^[24][25]

[edit] Proposed amendment

In 2009, Senator Russ Feingold of Wisconsin and Representative David Dreier of California proposed an amendment to remove the power of governors to appoint Senators.^[26][27][28] Senators John McCain and Dick Durbin became co-sponsors, as did Representative John Conyers.^[21] On March 11, 2009, a joint hearing was held between the Senate and House subcommittees on the Constitution regarding S.J. Res. 7 and H.J. Res. 21.^[29] On August 6, 2009, the Senate Subcommittee on the Constitution held a separate hearing.^[30]

[edit] References

1. ^ See Federalist No. 62 through No.66
2. ^ U.S. Senate: Direct Election of Senators
3. ^ Congressional Quarterly's Guide to U. S. Elections. Washington, DC: Congressional Quarterly Inc. 1985. ISBN 0-87187-339-7. 
4. ^ In Washington, the anxiety of influence - International Herald Tribune
5. ^ Treason of the Senate
6. ^ Dubin, Michael J. (1998). United States Congressional elections, 1788-1997: the official results of the elections of the 1st through 105th Congresses. Jefferson, NC: McFarland. ISBN 0-7864-0283-0=. 
7. ^ Mount, Steve (January 2007). "Ratification of Constitutional Amendments". http://www.usconstitution.net/constamrat.html. Retrieved February 24, 2007. 
8. ^ "DE ratifies 17th Amendment". http://www.wdel.com/story.php?id=715306276514. Retrieved June 25, 2010. 
9. ^ National Review Online - Repeal the Seventeenth Amendment. 2004-05-12.
10. ^ 150 Cong. Rec. S4503
11. ^ Statements on Introduced Bills and Resolutions. C-SPAN. April 28, 2004.
12. ^ http://www.fivethirtyeight.com/2010/05/department-of-colossally-stupid-ideas.html
13. ^ http://thehill.com/blogs/ballot-box/house-races/95705-tea-party-pushes-17th-amendment-to-the-forefront
14. ^ Firestone, David (May 31, 2010). "So You Still Want to Choose Your Senator?". The New York Times. http://www.nytimes.com/2010/06/01/opinion/01tue4.html?hp. 
15. ^ ^{a b} http://tpmdc.talkingpointsmemo.com/2010/05/tea-party-call-to-repeal-the-17th-amendment-causing-problems-for-gop-candidates.php
16. ^ http://www.idahostatesman.com/2010/05/13/1191020/a-ward-clarification-no-this-was.html?storylink=twt
17. ^ "GOP favorite Vaughn Ward loses to Raul Labrador in Idaho primary". The Washington Post. May 27, 2010. http://www.washingtonpost.com/wp-dyn/content/article/2010/05/26/AR2010052605334.html. 
18. ^ http://gohmert.house.gov/index.cfm?sectionid=125&itemid=805
19. ^ http://tpmdc.talkingpointsmemo.com/2010/03/gohmert-fight-health-care-bill-by-repealing-popular-election-of-senators-video.php#more
20. ^ Zernike, Kate, "Movement of the Moment Looks to Long-Ago Texts", The New York Times, October 1, 2010 (October 2, 2010 p. A9 NY ed.). Retrieved 2010-10-02.
21. ^ ^{a b} "New Idea on Capitol Hill: To Join Senate, Get Votes" by Carl Hulse, The New York Times, March 10, 2009 (in print 3/11/09 p. A20 NY edition). Retrieved 3/11/09.
22. ^ Senate Vacancies Raise Questions of Framers' Intentions - Roll Call
23. ^ ^{a b} ABC News
24. ^ Segal, David (January 24, 2009). "Don’t Name That Senator". The New York Times. pp. WK11. http://www.nytimes.com/2009/01/25/opinion/25segal.html. Retrieved 2009-03-11. 
25. ^ "Senate Vacancies" press release "A FairVote Policy Perspective", January 29, 2009. Retrieved 3-11-09
26. ^ Feingold, Russ. "S.J. Res. 7". http://www.thomas.gov/cgi-bin/query/z?c111:S.J.RES.7:. Retrieved 2009-02-03. 
27. ^ Dreier, David (February 11, 2009). "H.J. Res. 21". http://www.thomas.gov/cgi-bin/query/z?c111:H.J.RES.21:. Retrieved 2009-02-14. 
28. ^ Feingold, Russ (January 29, 2009). "Statement of U.S. Senator Russ Feingold on Constitutional Amendment Concerning Senate Vacancies". http://feingold.senate.gov/record.cfm?id=307525. Retrieved 2009-01-31. 
29. ^ Feingold, Russ (March 11, 2009). "Opening Statement of U.S. Senator Russ Feingold on a Constitutional Amendment Concerning Senate Vacancies". http://feingold.senate.gov/record.cfm?id=309452. Retrieved 2009-03-19. 
30. ^ THOMAS (Library of Congress) All actions on S.J. Res. 7

• Much of the text of this article comes from U.S. Senate: Direct Election of Senators, which is in the public domain as a work of the U.S. government.

[edit] Further reading

• Bybee, Jay S. (1997). "Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment". Northwestern University Law Review (Chicago, IL: Northwestern University Law Review) 91: 505. 
• Hoebeke, Christopher Hyde (1995). The Road to Mass Democracy: Original Intent and the Seventeenth Amendment. New Brunswick: Transaction Publishers. ISBN 9781560002178. http://books.google.com/?id=ll16O9jdfUEC. 
• Kochan, Donald J. (2003). "State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional". Albany Law Review (Albany, NY: Albany Law Review) 66: 1023. 
• Rossum, Ralph A. (2001). Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy. Lanham, MD: Lexington Books. ISBN 9780739102862. http://books.google.com/?id=FmvtjKHpgYwC. 
• Rosen, Zvi S. (2006). "The Irony of Populism: The Republican Shift and the Inevitability of American Aristocracy". Regent Law Review (Virginia Beach, VA: Regent Law Review) 18: 271. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957933. 

[edit] External links

• National Archives: Seventeenth Amendment
• NARA - The National Archives Experience: Seventeenth Amendment
• CRS Annotated Constitution: Seventeenth Amendment
• The State Legislatures Opposed to the Seventeenth Amendment
• The Campaign to Restore Federalism: A site dedicated to the Seventeenth Amendment's complete repeal

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Categories: 1913 in law | Amendments to the United States Constitution | United States Senate | History of the United States (1865–1918) | Federalism in the United States | 1913 in the United States

The 17th Amendment Kills States rights -1913 was a very bad year

Repeal Seventeenth Amendment

By John MacMullin
With respect to states' rights, it should be readily apparent to all that state governments cannot exert any meaningful influence or control over the federal government, judiciary, or any other federal institution.

Let us state the problem precisely. At the present time, there are no checks and balances available to the states over federal power or over Congress itself in any area. However, in the history of our country, it was not always this way. In the original design by the Framers of the U.S. Constitution, there was an effective check on Congress through the state legislatures' power to appoint (and remove) U.S. Senators. As such, the core of the problem with state's rights issues lies in the passage of the 17th Amendment which abrogated the state legislatures' right to appoint U.S. Senators in favor of popular election of those officials. This amendment created a fundamental structural problem which, irrespective of the political party in office, or the laws in effect at any one time, will result in excessive federal control in every area. It also results in a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and the evaporation of state influence over national policy.

The reason for the passage of the 17th Amendment should be stated. The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power. The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator. When deadlocked, a state would go without representation in the Senate. For instance, in the very first Congress, the State of New York went without representation in the Senate for three months. Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks. The problem of deadlocked legislatures continued unabated from 1787 until 1913. The seventeenth amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power. Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact.

For more information, I respectfully refer you to a law review article that I wrote, Amplifying the Tenth Amendment, 31 ARIZ. L. REV. 915 (1989). This article was cited as "worth reading" by the National Law Journal, in its March 5, 1990, publication. Additionally, I direct you to two books written by George Haynes titled "The Senate of the United States" published in 1938, and "The Election of Senators" published in 1906. I believe that you will find that these references are well worth reading.

In my opinion, the 17th Amendment should be repealed. This would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the present status of the state legislatures from that of lobbyists, to that of a partner in the federal political process. The state legislatures would then have the ability to decentralize power when appropriate. It would give state legislatures direct influence over the selection of federal judges and the jurisdiction of the federal judiciary and much greater ability to modify federal court orders. This structure would allow the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change. The existing relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little or no hope of return.

With that, the state governments should be focusing an effort to repeal the 17th Amendment, not on passing legislation or engaging in irrelevant activities, that are more than likely useless over the long term and probably also over the short.

Illustrations

The constitutional amendment proposed would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the status of the state governments from that of lobbyists, to that of a partner in the federal political process.  Figure A above portrays the existing relationship between the states and the federal government.  This relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little hope of return. 

With the passage of the amendment, the state legislatures would have the ability to decentralize power when appropriate.  After passage, it would primarily be the state legislatures interacting with their appointed senators, and not with the other branches of the federal government, that would establish the "line" between the federal and state governments.  Figure B shows the effect of the passage of the proposed amendment on the relationship between the governments.  This structure allows the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change.  This structure also exemplifies the original concept of the Framers of the Constitution.

You must ask why? Court allows use of fake Social Security Number Reverses impersonation conviction, says name actually was identification

By Bob Unruh
© 2010 WorldNetDaily

(photo: FBI)

The Colorado Supreme Court has reversed the conviction of a man who admitted using someone else's Social Security number to obtain a loan, concluding that the defendant wasn't really trying to assume a false identity. The opinion was written by Michael Bender, who was joined by Mary Mullarkey, Gregory Hobbs and Alex Martinez. A strongly worded dissent by Nathan Coats was joined by Nancy Rice and Allison Eid. The case involved Felix Montes-Rodriguez, who was convicted of criminal impersonation for using another person's Social Security number on a loan application at an automobile dealership. 


The ID Theft Center warns on its website, "A dishonest person who has your Social Security number can use it to get other personal information about you. Identity thieves can use your number and your good credit to apply for more credit in your name. Then, they use the credit cards and do not pay the bills. You may not find out that someone is using your number until you are turned down for credit or you begin to get calls from unknown creditors demanding payment for items you never bought."
Center Executiver Director Jay Foley said the court was overlooking the fact that there may be a multitude of people with the same name. The Social Security number is supposed to be the distinguishing characteristic.
"By supply either a fraudulent Social Security number or somebody else's, I am, in fact, identifying myself as somebody other than who I am," he said.
He said it was alarming that such a result would be coming from a state Supreme Court.
The Social Security Administration suggests that while it cannot fix problems from thieves using stolen Social Security numbers, consumers must pay attention to the possible problems.
"An identity thief might also use your Social Security number to file a tax return in order to receive a refund. If the thief files the tax return before you do, the IRS will believe you already filed and received your refund if eligible. If your Social Security number is stolen, another individual may use it to get a job. That person's employer would report income earned to the IRS using your Social Security number, making it appear that you did not report all of your income on your tax return."
Bankrate.com suggests, "The more people who see it, the more susceptible you are to identity theft, where you are victimized by someone fraudulently using your name and credit report to steal money."
In the Colorado case, the court's slim majority concluded that criminal impersonation is "when one assumes a false identity or a false capacity with the intent to unlawfully gain a benefit."
While Montes-Rodriguez "admitted to using the false Social Security number … he argued that he did not assume a false identity or capacity under the statute because he applied for the loan using his proper name, birth date, address and other identifying information."

L-R, Front: Gregory J.Hobbs, Jr., Mary Mullarkey, Alex J. Martinez. Back: Nathan B. Coats, Michael L. Bender, Nancy E. Rice, Allison Eid

A jury had convicted him and a lower appeals court affirmed the result.
But Bender explained the facts of the case: Montes-Rodriguez used another person's Social Security number because the car dealership required a number to check credit-worthiness before approving a loan. The court did not explain why Montes-Rodriguez did not use his own number, or whether he even had one.
But the opinion notes the defendant "impliedly asserted his power or fitness to obtain the loan, and his ability to work legally in this country, and thereby repay it."
"Although Montes-Rodriguez may have lacked the practical capacity to obtain a loan through Hajek Chevrolet because they could not check his credit without a Social Security number, he did not lack the legal capacity to obtain a loan," Bender wrote.
He ordered a judgment of acquittal entered.
Coats, Rice and Eid, however, noted that the majority was "slicing, dicing, parsing, distinguishing, and generally over-analyzing one short and relatively self-explanatory phrase."
"The defendant's deliberate misrepresentation of the single most unique and important piece of identifying data for credit-transaction purposes [is] precisely the kind of conduct meant to be proscribed as criminal," the dissent said.
"By claiming another person's Social Security number in a credit transaction, as the defendant did in this case, a person necessarily identifies himself as the person with the credit history associated with that number," the opinion said.
"Where the nature of the transaction is such that a false Social Security number is not merely incidental but is rather the single piece of identifying data upon which the fraud in question depends, it cannot be assessed as merely 'one of many pieces of identifying information," warned the dissent.
"For the purposes of the fraudulent transaction at issue, it is clearly the assumption of a false or fictitious identity."