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How is it that if Senators are supposed to represent a state, they can vote on federal legislation that is contrary to a state’s laws or constitution?

An easy example comes to mind. I’ve read Obama supports a federal ban on concealed carry. If a state has a law permitting it, shouldn’t a Senator be bound to vote in a way that supports the state’s law? I don’t understand how a Senator could support a ban if his/her state allows it.

If the majority of the states allow some form of concealed carry, a ban would never get through the Senate. Some types of restrictions might depending on what the majority of the states require, but an outright ban wouldn’t fly.

I realize there are a whole host of issues this would affect, sometimes to our benefit and sometimes not. But it may be a way to curb some of the overreach by the federal gov’t. To me if a state made this a requirement, it would be a way for it to reassert some authority as intended by the Tenth Amendment.

If someone can think of a good example why this wouldn't work, please post it as none immediately come to mind.

There are several aspects to this question:

Article I of the U.S. Constitution, and particularly Section 8, define the powers of Congress. The 10th Amendment says that those powers not granted to Congress are retained by the states and the people. (Subsequent amendments gave Congress additional powers.)

As the framers envisioned the structure of government, the federal and state governments had different, defined spheres of authority; and they would not conflict.

Let's take a simple example. Congress has the power to coin money, and the states are prohibited from doing so. A state cannnot say that they will no longer use U.S. dollars and their unit of money is now the talent. Everyone pretty much agrees on these settled issues.

However, over the years, Congress has expanded its powers into areas that should (IMHO) have been off-limits to the federal government, and to some extent the Supreme Court has upheld these infringements.

An example of that would be marijuana. The Constitution does not give Congress the power to regulate drugs, but the Supreme Court has upheld federal drug laws. If a state were to make marijuana legal to grow and possess, the feds could and would continue to arrest people in that state. This happens now in states that have decriminalized medical marijuana.

The U.S. Constitution defines the requirements for Congressmen (age, citizenship, and residency) and the structure of Congress. The Supreme Court has ruled every time that the question has come up that the states cannot add requirements beyond what is in the U.S. Constitution.

Furthermore, once a Senator or Representative is elected, he serves out his term unless he resigns or dies. He can stay home and drink beer all day, every day. He can even be convicted of a felony and go to prison. There is no way that the residents of his state can remove him from office or compel him to vote a certain way.

Many Congressmen use this liberty to pursue their personal agenda in Congress and more or less ignore what their constituents or their state legislature want.

This is what happens when people at all levels forget or ignore what the framers planned and do what seems expedient at the time.

On your question about concealed carry outside of federal property, this is an area where the federal government has never legislated. The original "gun free school zone" law ventured into this area, and the Supreme Court struck down that part of the law on the basis that Congress did not have that power.

I am confident that if Congress were to be so stupid as to pass a federal law restricting concealed carry, the Supreme Court as currently constituted would strike it down. Passing such a law would also mean that some Congressmen could lose their seats in the next election.

Quite a few of the Democrats current in Congress were elected in part because they said unequivocally that they support the RKBA and do not support "gun control." Even Pres. Obama said that, though he "saw the light" very late in the game.

- Jim

seamusTX wrote:The U.S. Constitution defines the requirements for Congressmen (age, citizenship, and residency) and the structure of Congress. The Supreme Court has ruled every time that the question has come up that the states cannot add requirements beyond what is in the U.S. Constitution.

Don't the requirements only address who can be a congressman and not what they are required to do?

seamusTX wrote:Furthermore, once a Senator or Representative is elected, he serves out his term unless he resigns or dies. He can stay home and drink beer all day, every day. He can even be convicted of a felony and go to prison. There is no way that the residents of his state can remove him from office or compel him to vote a certain way.

If the state has the authority to appoint a Senator, it should stand to reason they have the power to recall one.

seamusTX wrote:Many Congressmen use this liberty to pursue their personal agenda in Congress and more or less ignore what their constituents or their state legislature want.

This is what happens when people at all levels forget or ignore what the framers planned and do what seems expedient at the time.

That's the problem. Senators have authority with no responsibility or accountability until the next election cycle.

I understand the separation of powers but oftentimes it's the usurpation of powers. I agree states can’t override the federal laws but why should the fed be able to override the overwhelming majority of the states? The concealed carry was just an unlikely example. But it makes no sense that 35 states can have laws saying something is legal and the feds can change that. Regardless of political fallout, the feds could do this and the states have little recourse. I still think Senators, as the state's representatives, should somehow be required to vote in a way that is not counter to the state's laws or constitution.

The power of the Fed gov't has gotten out of hand and somehow needs to be reigned back in. Election finance laws heavily favor incumbents so it's very difficult to vote them out. Allowing the states to exert more control would reduce the influence of lobbyists and special interests, hopefully reducing the corruption that too often accompanies unchecked power.

I think it's time to start the Tenth Amendment Party.

raccol wrote:Don't the requirements only address who can be a congressman and not what they are required to do?

That is correct.

Congress as a body is required to do certain things, but individual representatives are not.

If the state has the authority to appoint a Senator, it should stand to reason they have the power to recall one.

It is logical, but the Supreme Court has ruled that because the Constitution contains no mechanism for recalling or impeaching Congressmen, they cannot be recalled or impeached.

The Federalist Papers, while they are not legal documents, make clear that this was the intent of the framers. They allowed for the removal of judges, the President and other executive-branch officials, and military officers, but not Congressmen.

I also seem to recall some cases where state legislatures passed bills requiring the representatives from that state to vote a certain way, and those bills were not enforceable. I don't have time to research that point right now.

That's the problem. Senators have authority with no responsibility or accountability until the next election cycle.

That is exactly the way that our system is set up.

The framers thought that the voters would be wise enough to elect honest, qualified candidates. The occasional bad apple would be limited by the system of checks and balances, and lose his next election.

I guess they were wrong about that. Instead there are times when we get a whole barrel of bad apples.

I agree states can’t override the federal laws but why should the fed be able to override the overwhelming majority of the states?

I can only answer, because they can; and I'm not trying to be funny or sarcastic about that.

If Congress passes a bill and the President signs it, and the Supreme Court does not rule it unconstitutional, it is the law of the land.

The states have the recourse of voting out every Congressman who voted for that bill, along with the President. However, that very rarely happens. Probably the best example was the elections of 1932, when the ills of the Depression and dissatisfaction with Prohibition led to a "throw the bums out" mentality.

I still think Senators, as the state's representatives, should somehow be required to vote in a way that is not counter to the state's laws or constitution.

It is difficult to come up with a system for doing this that would not generate problems of its own.

Consider how many states have one Senator from each major party. The state legislature is usually controlled by either the Democratic or Republican party (sometimes one party controls each house). You could have a situation where a Democratic legislature was trying to give orders to a Republican Senator, or the opposite.

In any case, such a system would require a constitutional amendment, which would have to be approved by (drum roll, please) the very Congressmen who would be affected by it.

The power of the Fed gov't has gotten out of hand and somehow needs to be reigned back in. I think it's time to start the Tenth Amendment Party.

There have been states-rights parties, and perhaps there still are in some states. This was a big issue when the federal government was trying to enforce Brown v. Board of Education, and some states did not want to go along.

The Libertarian Party favors strict construction of the Constitution, including the 10th Amendment; but you know how that has worked out.

The bottom line is that all of the people are going to get the government that the majority votes for, whether they like it or not.

- Jim

Jim, thanks for the input.

seamusTX wrote:You could have a situation where a Democratic legislature was trying to give orders to a Republican Senator, or the opposite.

The votes would be based on existing laws. I could see an issue if a legislature of one party created a law for the sole purpose of trying to force a Senator to vote a certain way.

There are plenty of issues that states wouldn't have existing laws to affect the vote. And unlike what was proposed in the Articles of Confederation, I wouldn't expect federal laws to originate in the states. I guess my purpose would be to have federal laws more narrowly focused to not override the majority of the states. In the CHL example any restrictions would have to be congruent with what exists in the majority of the states.

seamusTX wrote:The framers thought that the voters would be wise enough to elect honest, qualified candidates. ...

I guess they were wrong about that. Instead there are times when we get a whole barrel of bad apples.

Actually, I think the framers were smart to originally have the Senators appointed by state legislatures (Article I, Section 3) to counter balance the sentiment of the [uninformed/ignorant] voters. The 17th Amendment changed that and now here we are.

And what does this sentence in the 17A really mean?

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

What are the requisite qualifications for electors? Is that something a state can define?

raccol wrote:

seamusTX wrote:You could have a situation where a Democratic legislature was trying to give orders to a Republican Senator, or the opposite.

The votes would be based on existing laws. I could see an issue if a legislature of one party created a law for the sole purpose of trying to force a Senator to vote a certain way.

My thought is that such a system would add another layer of political controversy and lawsuits that would not entirely solve the problem.

However, that is just my opinion. You are certainly free to design a proposal and see what the court of public opinion thinks of it.

I might contrast it with the issue of term limits. Many people think we should have term limits for Congressmen. Many don't. It often boils down to wanting term limits only for people you don't like, which of course can't happen.

In any case, the idea never gets to the constitutional amendment stage.

Actually, I think the framers were smart to originally have the Senators appointed by state legislatures (Article I, Section 3) to counter balance the sentiment of the [uninformed/ignorant] voters.

That was certainly what the framers wanted. However, the selection of Senators became politically controversial and corrupt. Senate seats were handed out for political favors and probably even for money in some cases.

And what does this sentence in the 17A really mean?

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

What are the requisite qualifications for electors? Is that something a state can define?

Originally, the states could define the qualifications for electors, because the Constitution does not do so.

As you know, some states allowed only white, male property owners over the age of 21 to vote. Some had a broader franchise. Some allowed women to vote.

The 14th Amendment prohibited states from denying the right to vote on the basis of race (etc.), but states could still use sex, age, literacy, and other qualifications.

I think this clause in the 17th Amendment was meant to prohibit the states from defining a special class of voters who could vote for Senators. The same language appears in Article I, Section 1 of the original Constitution with respect to representatives.

However, I am not a legal scholar and don't play one on TV.

This is all history now, as subsequent amendments and court rulings have given us as close to a universal franchise as possible.

- Jim

I like the idea of term limits, but think they would be more plausible if they applied to the legislation instead of the legislators. We have to hold the possibility of reelection over their heads or they would be even worse than they are now. Besides, they would never agree to limit their tenure but may agree to limit their effects.

If all legislation had a 'review by' date, we could always have the opportunity to fix those unforeseen problems that almost always arise. Bad legislation, let it die. Good legislation, vote to keep it around until the next term limit. Keep them busy reviewing and updating existing legislation and they have less time to infringe new ones upon us.

raccol wrote:How is it that if Senators are supposed to represent a state, they can vote on federal legislation that is contrary to a state’s laws or constitution?

An easy example comes to mind. I’ve read Obama supports a federal ban on concealed carry. If a state has a law permitting it, shouldn’t a Senator be bound to vote in a way that supports the state’s law? I don’t understand how a Senator could support a ban if his/her state allows it.

If the majority of the states allow some form of concealed carry, a ban would never get through the Senate. Some types of restrictions might depending on what the majority of the states require, but an outright ban wouldn’t fly.

I realize there are a whole host of issues this would affect, sometimes to our benefit and sometimes not. But it may be a way to curb some of the overreach by the federal gov’t. To me if a state made this a requirement, it would be a way for it to reassert some authority as intended by the Tenth Amendment.

If someone can think of a good example why this wouldn't work, please post it as none immediately come to mind.

I don't think that the federal government can pass a national ban on concealed carry which would survive a SCOTUS review. I think that what they can pass are things like a ban on reciprocity between states (the same way the fed regulates interstate commerce), or to reinstate the ban on concealed carry in national parks, or a ban on carrying in any place that receives federal funds. So for instance, if your city receives federal funds to upgrade a municipal park facility, then the fed might attempt to extend a ban on concealed carry to that park, or perhaps concealed carry could be banned on federal interstate highways. Stuff like that.

The example just as easily could have been the Defense of Marriage Act. If repealed, the feds could then force states to recognize a gay marriage from another state even if the majority of states have laws or constitutional amendments defining marriage as one man and one woman. I'm not convinced those type of actions would have passed muster with the framers.

raccol wrote:I like the idea of term limits, but think they would be more plausible if they applied to the legislation instead of the legislators.... If all legislation had a 'review by' date, we could always have the opportunity to fix those unforeseen problems that almost always arise.

Many federal laws have sunset provisions. That is how the "assault weapons ban" was eliminated. I agree that it is a good idea.

- Jim

raccol wrote:The example just as easily could have been the Defense of Marriage Act. If repealed, the feds could then force states to recognize a gay marriage from another state even if the majority of states have laws or constitutional amendments defining marriage as one man and one woman. I'm not convinced those type of actions would have passed muster with the framers.

I'm sure they wouldn't have, but that doesn't change the fact that this is what the federal government has been getting away with for a long time.