All Commentary
Monday, November 1, 1976

A New Message: VII. On Amendment XVII

Mr. Pemberton graduated with honors in physics and mathematics, has a Masters degree in business administration, has worked two years in Sweden, and now works as a professional systems analyst. He is a businessman who is active in community and church affairs. is a free lance author, and is often called on to speak. He lives with his wife and children on a small farm just outside of Salt Lake City.

This continues a series of articles in which the author draws upon the extensive collection of the thoughts of the Founding Fathers and lets them speak to us relative to the problems we face in the United States today.

When we met in convention in Philadelphia that summer of 1787, our new land was in the throes of civil turmoil and economic emergency. Mobs had driven the Congress from the city, court houses in Massachusetts had been fired upon, inflation had wasted ninety-eight cents of our dollar, general disorder and dismay reigned in the cities and hearts of the people. Our urgent intent was to assuage those ills, and neither our feelings nor our view of our troubles was so different ‘ from a hundred similar gatherings assembled in history by the press of political problems. At first we were largely unaware of the far-reaching consequence of the seemingly natural events of the Convention.

While most of us saw only the grave conditions around us, there were a few great ones who saw in those troubles the seeds of a better and more enduring system. But faintly did we sense the full stature of the giants who sat among us; those few whose wisdom pierced the gathering gloom and fastened upon the vision of a liberty wherein the powers of the people would balance the powers of government, and the frailties of human government would be balanced against themselves, and the written Constitution would fix and protect them all.

By the persistent consideration of conflicting but equally worthy objectives we worked our way to a new understanding and a balancing of those objectives which loosed the powers and enterprise of the citizens while it protected them in their rights and gave them control of their protector. The resulting Constitution was an instrument of somewhat delicate but well-guarded balances, a framework which has proved its worth in the nation’s unparalleled successes.

You may think I too frequently remind you of that, but I have seen your ignorance and am resolved that you shall learn well the single most obvious fact of your two centuries: that the balances of the Constitution specifically and the goodness of the people generally are the towering columns which raised you to your present glory. My children—be careful lest the relentless drumming of the philosophy of “something for nothing” bring you down like the walls of ancient Jericho, for now it jars both pillars and the nation shudders in the din.

The Constitution has been called the result of many compromises but I prefer to call them balances. We balanced anarchy against oppression, nationalism against federalism, and the branches of government against each other. Each of these balances is supported by others, and all of them are necessary to the proper function of your government. But some of them have been badly disturbed or altogether removed, and you now feel the consequences.

One of those most critical to the welfare of the nation was reached in the design of the bicameral Congress. We preferred the advantages of democracy but declined to suffer its errors. We desired to protect our States and our local governments and minorities among the people from the oppression of strict popular rule; that defect being clearly discernible in the cracks that wrecked the foundations of the ancient Greek nations. On the other hand, we wanted no part of Plato’s republic with its established, tyrannical aristocracy. But between those extremes we founded a Congress which was at once a direct representative of the people (the House) and a direct advocate for the States (the Senate).

It is an obvious principle that the greater the facility with which the people may control their government, the less it will be allowed to oppress them (except when the political ignorance of the electorate permits politicians to successfully espouse impossible programs). Likewise, the closer the government function operates to the public, the easier their control thereof.

These considerations lead naturally to a universal principle of good administration: each problem should be treated at the lowest possible level. Thus school books should be selected by the teachers and parents of the pupils who use them, fence lines should be the concern of the county surveyor, laws prohibiting crimes of all types are the correct domain of the State, and national security must be attended by the United states. It is an interesting exercise in what you call political science to write oneself a list of those operations which cannot be performed by the States or lower agencies, and which must therefore be handled by the Union. I heartily encourage you to attempt it!

Some have thought that our jealousy for the sovereignty of our States was an emotional nationalism, and there is some truth there, but we were also concerned to keep the execution of the powers of government as close to the populace as possible. International concerns want to be administered by the United States. An assurance of equal justice and the protection of rights are also proper questions for the Union, as are provisions to prevent the States from economic chicaneries against their sisters. But all other powers were reserved to the States and their inhabitants. We adopted that plan not so much in fear for the sovereignty of our States, but because that supremacy is actually a reflection of its source which reposes in the individual citizen.

In order to safeguard all his rights, each person delegates a portion of them to his State. The Constitution provided that most of those powers should remain there and they came to be known as States’ rights although their origin continues in the citizen. The nature of that source requires devices to shield them from the constant threat of encroachment by the more comprehensive federal government.

We noted with concern that the universal nature of legislatures is to legislate too much, and that unless some opposing force were supplied, the United States Congress would eventually infringe every State prerogative until the rights of the people vested in the States were consumed. We talked much of the need for Senators to preserve the sovereignty of their States because they were the best defenders of the rights the people had already lost to their States’ governments. Hence, Senators were elected by the State legislature, were to answer to the State, and were to represent the interests of the State in the Congress. Amendment XVII destroyed that balance and the Senate became another House.

There is a point of possible contention in this discussion, for one might correctly ask: If States’ rights are really the delegated rights of the people, then is it not clear that the people can best see to their own interests by electing their Senators directly as they do now? Ah, there is also a need to balance political principle with the realities of human nature. It would be well enough if each citizen understood that States’ rights are people rights (which they do not) and if they could remember to apply the fact to each political decision (which they cannot). But once those rights are granted the States and new generations come and go scarcely questioning the authority exercised over them, it is natural that the people will little concern themselves with the finely decisive lines of human rights.

The men of the State Legislatures sense more keenly the problems of the State than do the public. This relative ignorance (which arises from no lack of diligence but from the effect of a different occupation) practically disqualifies the ordinary citizen from the task of choosing a Senator who can properly represent his State. The people are more likely attracted by policies which, although they seem fraught with blessings, contain the seeds of the loss of their independence.

Far wiser to treat the rights of the citizens delegated to their States as they are usually perceived and more conveniently described, as States’ rights, and to place officers in such positions as to foster a natural jealousy for those rights. Because your Senators are elected by the people, their desire is to please the people, an operation belonging to the Representatives. If Senators were elected by the State’s legislature, as they ought to be, their natural impulse would be to please the members of that body, and what would please them most is that the Senator learn and respond to the needs and rights of the State as a political entity. This technique allows the Senators to forget the origin of the rights they nonetheless anxiously guard, for, as deputies of the State, they feel directly that responsibility and instinctively position themselves in defense of the power they represent.

You have witnessed an increasing intrusion of the federal government upon the States, and a usurpation of those powers which properly belong to and ought to be administered by the States. You have even seen Federal bureaus present ultimatums to State legislatures. Such arrogance surely indicates a serious disease, and although you are generally aware of the malady, you have not perceived its cause. What? Do you think a Federal bureaucrat could dictate law to a State legislature if that State were correctly represented in the Congress? Can you hear the words of a true State Senator on such a topic? Would there not then be a sweet commotion in the Senate? I know you can sense the virtue of the principle!

But who is now the protector of the sovereignty of the States? Where now are those guards? Who is the advocate in the federal council for the rights the people entrusted to the States? Who carries the charge to keep the government of the United States from swallowing her own members? The States formed the Union to serve their mutual needs and cast themselves under her wings for their common defense. Now the creature has turned on her creators, the servant upon her masters; and all because the carefully set balances of the Constitution were thrown awry by the Seventeenth Amendment!

And whence your concern that the laws of one State are not the same as another? Who shall write the law for a State if not her own citizens? Anything less is tyranny.

You have nearly forgotten the vision of the United States. Had wisdom decreed that this land should be one state, we should have named it the Consolidated State, or a similar singular noun, but that was not our intent. And while you followed our plan you prospered, but since you put the States out of Congress they have lost their only defense, their powers have been usurped and centralized and you have steadily forfeited the freedom we gave you. Your experiment has verified our wisdom.

Nay, the United States were not meant to function as a single nation, except in relation to states outside her boundaries, but rather as a federalization of sovereign nations bound together in only the most essential ways and otherwise free and independent. You recoil somewhat at the concept, yet I have not come to dissolve the Union, but to restore it by returning the strength to her members. You are offended because you have lost the understanding of our work. We wanted the nations in the federation small so as to keep the exercise of the powers of government close to their only legitimate source, the people. You have come to see the States as convenient subdivisions for the administration of the central government and not at all as the protectors of your sacred rights.

Can you see what has been done? A portion of your rights were delegated to your States. The federal government, having no opposition from the States in its Congress, has nearly absorbed all those rights and now inflicts your own authority upon you and against your will. That your grievances derive almost exclusively from your federal government should teach you the truth of these principles.

Our day and our times required much careful thought and action, which, though inconvenient, were necessary to the establishment of an enduring system of human liberty. Your day and your times are too much like ours. You too must put selfishness and immediacy behind you. You too must listen and strive for the visions of your wise ones, and they are among you for every battle has its conqueror. The full destiny of the nation and the highest use of the Constitution have only begun to appear. Never before has the world been so dark or so hungry for the sweet fruits of freedom. But how will you hold aloft the light of liberty while the ship of state lists under the unbalanced load of a federal government unchecked by the sovereign States? And how shall you bear abroad those fruits in a ship so out of trim?

What is to be done? Restore the balance! Put the guardians of the rights of the States back in Congress! Stay the growing intrusions of the federal government! Reverse the trend and let the rights flowback to their proper place. Repeal the amendment and begin the restoration of the Constitution!

Consider the effect! With the Senate restored to its correct authority, many of the reforms you seek would begin to be effected as a natural consequence of the composition of the Senate and in a manner slow enough to insure that some other portion of the political machinery would not be thrown awry. And all that in concert with the restoration of the rights, of the people vested in the several States. The principle points its own goal and pleads its own case while the rising indignation of the people provides the power for its attainment. Is it not a matter worthy of your most sober deliberation?

Next: VIII. On the Destiny of Liberty


Home Rule

To bring about government by oligarchy masquerading as democracy it is fundamentally essential that practically all authority and control be centralized in our national government, the individual sovereignty of our states must first be destroyed…

We are safe from the danger of any such departure from the principles upon which this country was founded just so long as the individual home rule of the states is scrupulously preserved and fought for whenever they seem in danger. Thus it will be seen that this home rule is a most important thing —a most vital thing if we are to continue along the course on which we have so far progressed with such unprecedented success.

From ‘An Address on State Rights” while Governor of New York. 

  • Mr. Pemberton graduated with honors in physics and mathematics, has a Masters degree in business administration, has worked two years in Sweden, and now works as a professional systems analyst. He is a businessman who is active in community and church affairs. is a free lance author, and is often called on to speak. He lives with his wife and children on a small farm just outside of Salt Lake City.