By David Dietrich
Part 2: Amending the Constitution – The AlternativesIn Part 1 of this series (here) we explained why the Constitution simply must be amended to bring the federal government back towards the Framers’ intent, back towards the limited and enumerated powers of government the Framers designed. In this essay we will explore the various alternatives offered to reign in government power.
Our nation is at a crossroads. “Now is the winter of our discontent.”1 We are the victims of unbridled federal power. Members of both major political parties want nothing more than to first be elected to power, and then to remain in power. In the former case, their most potent weapon is the offer of “free stuff” to a large percentage of the population.2 By buying their positions with other peoples’ money, they garner the reelection votes they need at an extraordinary rate—greater than 90%.3 And once in position, they commit themselves to ensuring that the apparatus of the federal government supports their personal interest.
Congress only serves itself with laws, such as ObamaCare, which gives health insurance subsidies to millions of Americans. President Obama did this with his pen and phone, unilaterally giving government subsidies to insurance companies that can’t otherwise afford to participate in the program. And the Supreme Court effectively made new law by opining that the individual mandate is a tax, even though Congress made no such claim.4 We the American People are left holding the bag.
There is little to no accountability of any federal government official. How can such dishonesty be so rampant? Why do seemingly good people, when they arrive in Washington, begin spending like drunken sailors? And that gives sailors a bad name! Perhaps it is because there is no accountability. Americans have little recourse and the States gave theirs up in 1913 with passage of Amendment XVII.7 Can we still call our political system a Constitutional Republic?
So, what can we do about such blatant disrespect of the Constitution and the harm done to the American People? One option is to do nothing and let such behavior continue unabated. That seems to be the de facto response by not only the progressive faction in this country, but also a significant number of those who call themselves conservatives. While the latter decry the direction the federal government is taking us, they offer no real solution to this problem.
Several options have been proffered. One is “better education of the masses.” That’s a nice thought, but how do we counter the effect of the current government system? When more than 50 million children, grades K-12 are being indoctrinated every year, and will be for the foreseeable future,8 what “dent” can be made? While some organizations, such as the National Center for Constitutional Studies,9 Hillsdale College,10 and National Constitution Center11 have significant outreach, all the constitutional education programs put together probably reach no more than 1% of the US population, much less result in political engagement.
A second routine answer is to simply “elect the right people.” What a wonderful idea! But, when has that ever led to a serious reduction in federal power? Did it happen in 1994, when we had the “Republican Revolution”12 during the Clinton administration? In 2010, when Republicans took over the House of Representatives?13 Or in 2016, when Republicans gained control of the Senate?14 The best that can be said is that these brief interludes may have slowed our relentless march to serfdom. The end will still be the same nonetheless—a feudal system of lords and serfs.
Finally, nullification is routinely offered as a federal power-reducing strategy. Nullification, according to Merriam-Webster, is “the action of a state impeding or attempting to prevent the operation and enforcement within its territory of a law of the U.S.”15 It sounds great in theory, but practically speaking, is fraught with difficulties. These include haphazard application by the several states or local governments. What this means, in a nutshell, is that such resistance does not really impact federal action in any significant way.
And then there is the point of nullification in the first place. Is it constitutional, or merely civil disobedience for other reasons? Consider sanctuary cities/states and state marijuana laws, for example. State nullification laws can be revoked by the next state legislature to take its seats, they generally target a single federal law (how many deserve nullification?), and they do nothing to the targeted federal law—it remains in effect and the federal government can enforce it to the extent their resources allow. In the end, nullification fixes nothing, while creating more chaos in our legal system.
Let’s now look at how the Constitution can be (and has been) changed. There are basically three mechanisms—two directly through Article V16 and one “ex cathredra” by the Supreme Court. The success of this latter process is codified in the “Constitution Annotated.”17 With thousands of court decisions on the books, Americans are truly at the mercy of unelected officials, whether judges or executive branch appointees. Supreme Court opinions (aka “decisions’) have the impact of amendments, as they are virtually unassailable by any means other than amendment. See the Dred Scott decision18 and Amendment XIII19 for an example.
As for Article V, only one method has been used to produce the current 27 official amendments. Congress has initiated the process, which has produced mixed results in terms of individual and federal powers. It can be claimed with little hesitation, that Congress is not likely to propose amendments that serve to diminish their power. Examples of such behavior are few and far between, in any case. These include the first ten (Bill of Rights), Amendment XXII (Presidential Office), and Amendment XXVII (Congressional Salary). 20
What is really noteworthy is that nearly 10,000 amendments to the U.S. Constitution have been proposed by members of Congress since 1789.21 That amounts to more than eighty being introduced during each Congress. Of that prodigious number, few ever get through committee; fewer still (33) have been submitted to the several states for ratification, resulting in less than 1% (27) being ultimately ratified. Some examples of those that have not succeeded include: 1876—an attempt to abolish the United States Senate; 1893—renaming this nation the “United States of the Earth,” and 1947—the income tax maximum for an individual should not exceed 25%. 21
Who are some of the groups that stand against this constitutional remedy ? John Birch Society is one—upposedly formed for “educating and activating Americans,” Patriot Coalition—proclaiming “strict adherence to the Constitution,” Oathkeepers—convincing people to “defend the Constitution,” and Eagle Forum—claiming to “support the Constitution.” There are likely other misguided opponents, but they all have one thing in common—fearmongering is their chief weapon. By opposing an Article V Convention, these organizations set themselves in opposition to the Constitution itself.
Now that the Virginia state election results22 are in, prospects of recovering some portion of state sovereignty appear grim. Not only do we have so-called “conservative” Republicans opposing constitutional remedies, but the new Democrat power base in the House of Delegates will likely join them in their opposition. We’ve mentioned some alternatives, none of which are linked to a coherent and operable plan. What other alternative do we have? How will federal policy be effectively changed by any other means? It appears now more than ever that our Republican form of government is in peril. To paraphrase Richard III, “an amendment, an amendment, my kingdom for an amendment!”23
In lieu of doing nothing, or of doing something in such a disorganized fashion that it is rendered ineffective, the only effective means for the states to make their voices heard in a concerted fashion is found in Article V. It has been right there before our eyes for the entire history of our constitutional Republic! It is time to put aside our differences, overcome our fears, and finally work together to seize the initiative from our tormentors in the federal government.
Now that alternatives to amending the Constitution have been considered, our next essay in this series will address why a “Convention for Proposing Amendments” can and will work.
1Shakespeare – Richard III. http://shakespeare.mit.edu/richardiii/full.html
2A Nation of Government Dependents? https://www.mercatus.org/publication/nation-government-dependents
3Reelection Rates Over the Years. http://www.opensecrets.org/overview/reelect.php
4NFIB v Sebelius. https://www.oyez.org/cases/2011/11-393
5National Debt Clock. http://www.nationaldebtclocks.org/debtclock/unitedstates
6The German Hyperinflation. https://www.pbs.org/wgbh/commandingheights/shared/minitext/ess_germanhyperinflation.html
7Amendment XVII. https://www.law.cornell.edu/constitution/amendmentxvii
8Elementary and Secondary Enrollment. https://nces.ed.gov/programs/coe/indicator_cga.asp
9National Center for Constitutional Studies (https://nccs.net/)
10Hillsdale College (https://www.hillsdale.edu/)
11National Constitution Center (https://www.constitutioncenter.org/)
12The Republican Revolution. http://www.history.com/this-day-in-history/the-republican-revolution
13Election 2010. https://www.nytimes.com/elections/2010/results/house.html
142016 Senate Election Results. https://www.politico.com/mapdata-2016/2016-election/results/map/senate/
16Article V, U.S. Constitution. https://www.law.cornell.edu/constitution/articlev
17Constitution of the United States of America, Analysis and Interpretation. https://www.congress.gov/constitution-annotated
18Scott v. Sanford. https://www.law.cornell.edu/supremecourt/text/60/393
19Amendment XIII. https://www.law.cornell.edu/constitution/amendmentxiii
20Amendments to the United States Constitution.
21Proposed Amendments. https://www.constitutionfacts.com/us-constitution-amendments/proposed-amendments/
22Virginia Election Results. http://results.elections.virginia.gov/vaelections/2017%20November%20General/Site/Statewide.html
23Richard III. http://www.shakespeare-online.com/plays/richardiii_5_4.html
About the Author
David Dietrich is a founding member of the Dead Whig Society, established to promote rational discourse on constitutional and other philosophical and political matters. He is also a member of the Convention of States Project. Comments on this essay and ideas for future essays should be sent to email@example.com.
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.