Part 1: Why the Constitution Must be Amended
I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.
Although the President is the only federal official required to take this particular oath, wouldn’t it be better if everyone, every single American, took the same or similar oath, perhaps before they are allowed to vote in their first national election? Just saying.
Oaths are solemn commitments before God, not to be taken lightly. The Framers understood this, and that’s why oaths were made a requirement of elective office at all levels of government. Madison tells us that Sir William Blackstone’s: Commentaries on the Laws of England “were in every hand,” and thus Blackstone’s view would have been very familiar:
The belief of a future state of rewards and punishments, the entertaining just ideas of the main attributes of the Supreme Being, and a firm persuasion that He superintends and will finally compensate every action in human life (all which are revealed in the doctrines of our Savior, Christ), these are the grand foundations of all judicial oaths, which call God to witness the truth of those facts which perhaps may be only known to Him and the party attesting.
In his 1796 Farewell Address (ghost-written by Madison), outgoing President George Washington cautioned that “should a sense of religious obligation desert the oaths,” security for “property, for reputation, for life” would be imperiled. Since we find today at least our property increasingly imperiled, could the failure to take oaths with sufficient solemnity be the cause?
The oath-taker agrees to “Preserve, protect and defend the Constitution.” Protect and defend it from what or whom? From all threats, of course, within and without; this should go without saying. Preserve the Constitution? If protecting and defending the document are successful, preserving it would seem to naturally result; but what if our best efforts to protect and defend the document fall short? What if the Constitution suffers damage, not physical damage of course, but interpretive damage? Do the words of the President’s (and our) obligation to preserve the document not also imply an attendant obligation to restore the Constitution when damaged, whether purposefully or inadvertently? I think that also goes without saying.
Few characterizations of the Constitution from the ratification debate period were more pervasive (and persuasive) than that the plan was designed to create a government of limited and enumerated powers. Every ratification supporter hastened to make that point. If they hadn’t, of course, if they had instead characterized the plan as the slow but inexorable migration of power from the states to the national government that we have instead experienced, forget about ratification, the Constitution’s supporters would likely have been tarred, feathered, and run out of town on a rail.
Yet an honest appraisal of the power and reach of the federal government today shows we left a government of limited and enumerated powers in the dust a long time ago. In the infamous words of former Representative Peter Stark of California: “The federal government can today do most anything in this country.” He is absolutely right … and it shouldn’t be that way.
The U.S. national debt is increasing at the alarming rate of nearly a million dollars a minute. Our official debt was about $5 Trillion at the turn of the last century and now stands at over $20 Trillion; a quadrupling in seventeen short years, doubled in the last nine, and the accumulation rate continues essentially unabated. With no obvious sign that Congress is interested in changing this fiscal trajectory, and instead even encouraging it, what’s a patriot to do? $67,000 per American, $170,000 per taxpayer; are these the “blessings of liberty” the document was intended to preserve to our posterity? The picture is even more alarming when considering the promises we have made to our forthcoming citizens, promises some calculate to cost in the range of $150 Trillion; promises for which we have provided no funding.
How have we gone from a Constitution of limited and enumerated powers to one where the government “can do most anything?” Here’s how:Chief Justice John Roberts affirmed in the first Obamacare decision that Congress can tax you for any purpose, even to coerce you into buying health insurance that you’ve decided you neither need nor want. Thanks to Court decisions in the 1930s, Congress has the power to spend money on anything it decides supports the general welfare; and in the latter of the two decisions, the Court said Congress could define the term “general welfare” anyway they wished. In a 1989 case, the Court gave Congress the authority to delegate its legislative power to executive branch agencies, which now publish rules with the force of law. These rules and regulations add $2.0 Trillion each year to the cost of doing business in this country, a cost that is simply passed on to “we the consumers.” Thanks to the logic of a 1942 Supreme Court decision, the federal government has the power to regulate any aspect of any American business, whether or not that business engages directly in interstate commerce, which was indisputably the original target of the power.
Some claim that we have simply turned our backs on the Constitution; we no longer consider it relevant; it is routinely ignored. While this explanation seems reasonable, digging a little deeper you find that the federal government, by and large, does indeed obey the Constitution … as it has been interpreted by the Supreme Court. The Court has simply changed the meaning assigned to the original words. Proof of this is found in the cases just cited and others found in the U.S. Constitution, Analysis and Interpretation, a 3000-page compendium of Supreme Court opinions which forms the “operational” Constitution, the one the government is entitled to follow. Here you will find the aforementioned opinions and read some of the often tortured logic which produced those opinions.
One frequently hears that the remedy to our plight is simply to elect better people to Congress and all will be well. Thomas Jefferson would disagree. He wrote:
“In questions of power, … let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” This would be sound advice—if the Constitution retained any “chains.” Over these many years, the Court has turned a limited and enumerated powers Constitution into one that permits the federal government to tax without limit, borrow without limit, spend without limit, delegate their legislative authority without limit, and regulate American business without limit; all completely legal and constitutional.
Conservatives occasionally point out that a Supreme Court opinion is just that: an opinion, and that its effect should not extend beyond the two litigants: Obergefell and Hodges, for example. To give the opinion greater effect, they add, is tacit recognition that the court has “re-written the law,” a power the Framers reserved to the legislature. This may all be true, in the theoretical, but the American people have “moved on” from the Founders’ view of separation of powers and now side with Chief Justice Charles Evans Hughes, who said: “we are under a Constitution, but the Constitution is what the judges say it is ...
While “Hughes hubris” as it has been called may send a strict constructionist into tachycardia, it is in fact the view shared by the bulk of the American people. The people may be evenly divided as to how the Court should interpret the document, but Americans on both sides nearly all agree that the Court gets the final say.
British statesman William Gladstone, called the Constitution “the most wonderful work ever struck off at a given time by the brain and purpose of man.” But to those who did the drafting it was neither divinely inspired nor perfect. George Washington called it “the best that could be obtained at this time.” And since “a constitutional door is opened for amendment hereafter,” any faults revealed in the future could be corrected.
Franklin Delano Roosevelt called the Constitution “the most marvelously elastic compilation of rules of government ever written.” And it is this “elasticity,” rooted in ambiguous words and phrases, that has given the Court the latitude to re-shape the document’s powers.
Today, the federal government has become a bloated, costly, intrusive leviathan, meddling in every aspect of our public and private lives. One searches the Constitution in vain for power to control the national education system, declare carbon dioxide a pollutant, restrict the growing of wheat for one’s own animals, constrain toilet flushes, outlaw certain light bulbs, or confiscate private property without even charging the poor citizen with a crime. But “if Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare,” is there anything beyond their reach?The choice facing the American people is whether they wish to continue living under a federal government such as we now have, a government without limits, or whether they would prefer to begin repairing some of the interpretive damage and ill-conceived actions of previous generations (i.e., the 17th Amendment).
The same Supreme Court which “stretched” original meaning beyond recognition could, of course, overturn its earlier decisions and, clause by clause, return the Constitution to its original form. On several important occasions, the Court has indeed reversed decades of precedent. However, it took 230 years to get to the point we are today and, if the Court is to be the only “restorer,” it may take an equal interval to repair the damage. Will the nation survive much longer with a government of no limits? This avenue of restoration is further hindered by two glaring facts: 1) the Court requires at least a five-justice originalist majority to pursue this avenue, which it currently does not have and may never have, and 2) the Court cannot review these earlier cases until presented with a new “case or controversy” sufficiently pertinent to allow this review.
Congress could conceivably ignore the immense power and authority they have been given—in some alternate universe perhaps. But consider this example: a stretch of road on your daily commute has had its long-standing speed limit raised from 35 to 45 mph. How many Americans would continue to travel that road at 35 mph? They are legally entitled to, but who would? Neither will the Congress “throttle back” to the limits recognized by the Framers. No time to tarry, Congress has places to go, people to see, problems to fix.
This leaves amending as the only feasible method of restoring the Constitution to its former strength. And here the Constitution provides two avenues of attack: Congress and the states. Is Congress interested in restoring the Framers’ constitutional order? We will answer that question in the next essay. Repairing the Constitution cannot possibly address everything that ails America, this is not a panacea; other strategies can and must be concurrently employed. These other alternatives and the amendment process itself will be the subject of our next essay.
 Virginia Ratifying Convention: June 18, 1788.
 Commentaries on the Laws of England (1765-1770).
 National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)
 United States v. Butler, 297 U.S. 1 (1936) and Helvering v. Davis, 301 U.S. 619 (1937)
 Mistretta v. United States, 488 U.S. 361 (1989).
 Wickard v. Filburn, 317 U.S. 111 (1942).
 From a “fair copy” of the draft of the 1798Kentucky Resolutions.
 Speech before the Chamber of Commerce, Elmira, New York, May 3, 1907
 Letter to Patrick Henry, September 24, 1787
 Address as Governor of New York, March 2, 1930
 The process is called civil asset forfeiture, and it nets the federal government more per year than is taken by all the nation’s burglars.
 James Madison, speech in the House of Representatives, February 7, 1792.
 For example, Plessy v. Ferguson, 163 US 537 (1896) was finally overturned after 58 years by Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
Editor’s Note. An Article V Convention has strong proponents and opponents locally and across America, including within conservative circles. Smart, well-intentioned people disagree on such a convention. The Fairfax Free Citizen welcomes both pro and con articles and comments about it. An open and insightful exchange of ideas about a possible Article V Convention will help inform readers and may contribute to building a consensus on this controversial subject.