Section 3 of the Fourteenth Amendment prohibits an individual from being a senator if he has “engaged in insurrection or rebellion” or “given aid or comfort to the enemies” of the United States. Based upon press reports, Burris is guilty of neither disqualifying activity. In fact, there are no allegations thus far that Burris was involved in any of the potentially illegal acts involving Blagojevich’s attempts to sell the seat.
That leaves the Seventeenth Amendment. Prior to its passage in 1913, senators were elected by state legislatures. This manner of election served as a check on the federal government’s ability to take power from the states. Specifically, because the senators were elected by state legislatures, they had to protect the interest of the states, which could be different from the interest of the people in the states. It isn’t surprising, therefore, that the growth of the federal government and the era of unfunded mandates started shortly after taking from states the only check they had against federal power. Senators now did what was popular with the voters who elected them without a thought to what impact their activity would have on the states.
As to the filling of vacancies, the Seventeenth Amendment explicitly states: “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.” Pursuant to 10 ILCS 5/25-8, the Illinois Governor has the power to fill Senate vacancies. The final relevant part of the Constitution – the Tenth Amendment – therefore requires Reid to respect Blagojevich’s decision and seat Burris save any action by Illinois entities.
No one wants to stand next to a politician going down. Nevertheless, the forty-nine other governors should show some political courage and come out in support – not of Blagojevich or Burris – but of the Constitution and Illinois’s constitutional right to fill the Obama vacancy. If our Nation’s governors won’t defend the Constitution and the powers reserved to them in it, who will?
We know Reid and other politicians obsessed with federal power won’t.