Constitutional fight launched over election of senators

It's a movement that's been building in recent years: efforts by states to reclaim their constitutional authority by declaring Washington's health care laws, gun control or other restrictions simply don't apply within their boundaries.

After all, the Constitution stipulates that, except for a couple of dozen specific issues such as national defense, the powers in the U.S. rest with the states.

Now a new lawsuit contends states can regain their authority by returning to the practice of having state legislatures elect U.S. senators, as the Constitution originally required.

The case is being brought by author, columnist, commentator and activist Devvy Kidd.

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A former congressional candidate, she has been a guest on thousands of talk shows and authored "Why A Bankrupt America" and "Blind Loyalty."

In her complaint, filed in court in Texas, she contends the 17th Amendment was not legally adopted, because several key states cited in support of it never even voted.

She noted the drafters of the Constitution were concerned about maintaining state sovereignty, which is why state legislatures were given the power to select U.S. senators.

It was like that for more than 100 years until the 17th Amendment was adopted in 1913, establishing direct election of senators by popular vote.

In a recent commentary, she said the 17 Amendment "was critical in destroying the balance of power in the U.S. Congress, wrestling away the sovereign power of the states and any representation in Washington, D.C."

John Jay, co-author of The Federalist Papers, Kidd pointed out, is quote saying 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."

"The Senate was not created to represent Joe and Mary Smith. The U.S. Senate was created to give equal representation, two senators per state regardless of population, in the U.S. Congress," she said.

Kidd's lawsuit demands that the Texas secretary of state keep any candidates for the U.S. Senate off the November ballot.

"It is a 'first blush' lawsuit, meaning the first of its kind in either state or federal court to my knowledge," she said.

She predicts the likely next governor of Texas, Attorney General Greg Abbott, will defend Secretary of State Nandita Berry and try to dismiss the lawsuit by arguing Kidd has no standing.

Arguing for the illegitimacy of the 17th Amendment, she said Alabama "ratified" it in 2002, nearly 90 years after the fact. Delaware took the same action in 2010, 97 years late.

She said Maryland ratified the 17th Amendment as recently as 2012.

"Either we are a nation of laws or we are a nation of lies. We can't be both and survive as anyone can see watching our beloved republic disintegrate," she said. "One thing I dearly hope this lawsuit will do is educate our fellow Americans on why that amendment must be stricken from the books."

The 17th Amendment was introduced in 1911 and sent to "all 48 states" in 1912 for ratification.According the complaint, the complaint recounts.

The next year, the Department of State announced: "The department has received information that 36 states have taken action purporting to ratify the amendment by Congress and no official information has been received from any state to the effect that the legislature of that state has rejected said amendment."

The description of "action purporting to ratify" raised questions, but the complaint notes they are explained by the fact the department said the states made "errors" when "quoting" the amendment. Some states edited the amendment, some launched investigations and some took no action, the complaint explains.

"The parties involved, specifically William Jennings Bryan, simply decided to overlook how our laws are made – especially those pertaining to a constitutional amendment. Bryan chose to ignore the necessity for concurrence in legislative acts," the complaint says.

Secretary of State Philander Knox had noted that state legislatures were not authorized to "alter in any way" the proposal, yet he listed all the various changes made by the states as they considered the proposal, Kidd explained.

The complaint notes, for example, Wisconsin changed the first paragraph of the proposal then eliminated a second.

"Bryan listed California as one of the states which ratified the amendment, in fact, it did not. The California State Legislature never voted on it, either the Assembly or Senate," the complaint explains.

So when President Woodrow Wilson signed it in 1913, "legal ratification was two states short."

The complaint seeks a declaratory judgment ruling the 17th Amendment is not part of the Constitution.