Is
Changing the Constitution Really the
Answer?
. . . to federal abuse of power by: Richard J. Arena
Is
the government of the United States operating significantly beyond the bounds
of the Constitution?
Does
it matter?
Is
the principle articulated in the Declaration of Independence that: “Governments
are instituted among Men, deriving their just powers from the consent of the
governed, --That whenever any Form of Government becomes destructive of these
ends, it is the Right of the People to alter or to abolish it” –valid today?
Advocates for an Article
V Convention contend that federal abuse of American’s rights, freedoms and
property is due to a lack
of clarity in the Enumerated Powers set out in Article I, Sec. 8 of the
Constitution. They argue the remedy is
to make changes to the Constitution that clarify and place additional limits on
federal jurisdiction and powers.
When I first heard
about the current push for a Convention to propose changes to the Constitution
to keep the government within the bounds of the Constitution, I didn’t take it
too seriously because states pulled back from similar attempts in the 1960’s
and 1980’s when Congress started passing legislation that would put Washington
politicians in charge of the process. However,
when the Georgia legislature adopted SR371, renewing an application to Congress
to call for a convention “for the
purpose of proposing an amendment to the Constitution; and other purposes”,
I started taking the matter seriously and began researching.
Ironically, I found the
arguments offered by the Convention of the States Project justifying the need
for changes in the Constitution actually reveal that amendments cannot address
the real problem. Meanwhile, the proven remedy for federal abuse
advocated by Madison, Jefferson and Hamilton, and by the way is currently being
employed by more than half of the states. . . including Georgia, is casually
dismissed by Convention of the States advocates.
Convention of the
State’s central argument, that changes to the Constitution are needed to clarify the meaning of the enumerated
powers, is what’s known in formal debate as an argument Irnorantio Enlenchi –
an argument with an irrelevant conclusion.
Here is what I mean. Michael
Farris, a leader of the Convention of the States project, writes, the Federal
Government has “gradually amassed overwhelming power that is clearly outside the boundaries that the
Framers intended when they wrote the Constitution.”[1] (emphasis added) If it’s clear the federal government is
overstepping the limits of its Constitutional powers, doesn’t that say the
problem is not a lack of clarity? So, what is
the real problem? Unwittingly, Mr. Farris reveals it is that the government deliberately
misconstrues the Constitution when he writes, “The two most abused provisions
of the Constitution”, the Interstate Commerce Clause and the General Welfare
Clause, “have been amenable to abuse
(exploitation, manipulation which are acts of intention) because they were not
written tightly enough to effectively implement the drafters’ intentions.”(emphasis
added) So, as we see from Mr. Farris’
own words, the problem is not a lack of clarity, it’s a matter of intentional
abuse, and I might add, in need of an appropriate counterbalancing check.
If the government’s
overreach of its delegated powers was simply due to an ambiguous exposition of two
clauses, then clarification would be appropriate, but when the government chooses
to parse words in order to rationalize the exercise of powers not granted, that
is a problem of a very different sort; one unlikely to be remedied by
wordsmithing; for as Plato once said, “Good
people do not need laws to tell them to act responsibly, while bad people will
find a way around the laws.” That is as true today as it was in the 4th
century BC.
For the first one
hundred twenty-five years after the Constitution’s ratification federal judges
had little problem understanding the limits of federal powers as written and ratified. Then, beginning with Woodrow Wilson’s
administration in 1913, the Constitution started to be interpreted as a “living
document” which is to say its meaning is not discovered through a literal or
commonsensical reading, or for that matter by reading Madison, Hamilton and
Jay’s elucidations in the Federalist Papers, but the meaning of a so-called
Living Constitution is determined by the imposition of the personal views of
those in power.
Wilson, our second Progressive president, expressed
open contempt for the Founders and argued that the meaning of the Constitution
should be interpreted by judges, not based on its words because, in his view, government
as structured in the Constitution was insufficient for the challenges of the modern
era. In the Progressive view, the
executive needs extensive power to act on their own. Sound familiar?
Chief Justice John Evans Hughes, who served
on the high court during FDR’s administrations, characterized a living constitution this way, “We are
under a Constitution, but the Constitution is what the judges say
it is”. In other words, the rule of man,
not the Rule of Law; the very mode of governance the Founders fought to
overthrow. The rule of man is the hallmark of dictators, monarchs and tyrants
of whatever title. It is the elites
imposing their own personal views on the rest of us.
It is no surprise then that since the Supreme
Court and the other branches of the government began operating under the
premise that the Constitution is a “living” document, the Bill of Rights has
been turned upside down. In the Progressive
construction of American government, the People are not sovereign and the
States have no right to check federal abuses, and only the federal government
can define the limits of the powers we delegate to it! So, that which the People created to be their
agent and servant has been turned into a master – a master that dictates
everything from what kind of light bulbs and toilet flushes we can use and even
what we can say without penalty in our houses of worship. Intentional disregard of the Constitution is why there is no sphere
of private life left untouched by government meddling today.
Does anyone believe that Chief Justice John
Roberts really thinks the Affordable Healthcare Act is Constitutional? Do you think the government doesn’t
understand that it is trampling our 4th Amendment right to be secure
in our persons, houses, papers and effects when it indiscriminately monitors
our emails, phone calls, financial transactions, health and school records? Are
Congress, the president and the Supreme Court unaware that the power to
indefinitely detain and even execute American citizens without charges or due
process is a blatant violation of our 5th Amendment unalienable
right not to be deprived of life, liberty or property without due process? Of course they are aware. This is a
government that deliberately violates and makes a mockery of the
Constitution.
Given this reality, how can we not consider
the possibility, indeed the probability that the federal government will ignore
and twist any new modifications to the Constitution - especially any intended
to curb federal power and benefits? Our
first priority must be to reestablish the sovereignty of the people – that no
matter how the courts, the Congress or the President twist the powers we
delegate, at the end of the day, we reserve the right to define limits of the
government’s powers – even if it means applying the principle articulated in
the Declaration of Independence – a principle that, when necessary, supersedes
all others. How that principle is applied
depends on the circumnutates – it cannot be dictated by the very out of control
government in need of our restraint.
Why waste time and effort chasing after a Convention
that cannot correct the real problem –
intentional disobedience, intentional misinterpretation of the Constitution - when
we can apply more of a remedy that has already begun the restoration of federalism
and the rule of law.
The solution to which I refer is We the People
reasserting our sovereignty through the voice of our state governments who are starting
to say NO to unconstitutional federal acts . . . and who need to start saying NO
to federal money that funds state activities that are constitutionally
prohibited to the federal government. That process is enhanced when we demand
of our local and state elected officials to honor their oath to protect,
preserve and defend the Constitution.
Here’s what three of our Founders had to say about
this “rightful remedy”:
“…but,
where powers are assumed which have not been delegated, a nullification of the
act is the rightful remedy: that every State has a natural right in cases
not within the compact, (casus non foederis,) to nullify of their own authority
all assumptions of power by others within their limits: that without this
right, they would be under the dominion, absolute and unlimited, of whosoever
might exercise this right of judgment for them…”– Thomas Jefferson, Kentucky
Resolution, 1798
“The states then,
being parties to the constitutional compact, and in their sovereign capacity,
it follows of necessity, that there can be no tribunal above their authority,
to decide in the last resort, whether the compact made by them be violated; and
consequently, that, as the parties to it, they must themselves decide, in the last
resort, such questions as may be of sufficient magnitude to require their
interposition.” – James Madison, Virginia Resolution 1798
Madison agreed, he
said:
“Thus the right of
nullification meant by Mr. Jefferson is the natural right, which all admit to
be a remedy against insupportable oppression.” – James Madison, Notes on Nullification 1834
“There is no position
which depends on clearer principles, than that every act of a delegated
authority contrary to the tenor of the commission under which it is exercised,
is void. No legislative act,
therefore, contrary to the constitution,
can be valid.” –
Alexander Hamilton Federalist, No. 78, 524--25. 28 May 1788
“ . . .
[T]he State Legislatures will jealously and closely watch the operations of
this Government, and be able to resist with more effect every assumption of
power than any other power on earth can do; and the greatest opponents to a
Federal Government admit the State Legislatures to be sure guardians of the
people’s liberty.” – Alexander Hamilton, Federalist No. 78
CONVENTION OF THE STATES advocates dismiss
the idea of state resistance to unconstitutional federal acts as being “not
grounded in the text of the Constitution and having no realistic chance of
success.”[2] Let’s examine both assertions.
The right to resist federal government abuses
of the Constitution is found in the 9th and 10th
Amendments, provided, as Alexander Hamilton put it, “the citizens understand
their rights and are disposed to defend them…” (Federalist No. 28)
“The powers delegated
by the proposed Constitution to the federal government are few and defined.
Those which are to remain in the State governments are numerous and indefinite.”
– James Madison, Federalist No. 45.
Amendment X: The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.
Amendment IX: The
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.
The right to say NO to unconstitutional
federal acts is not prohibited to the States or the people. We know Madison,
the father of the Constitution and author of the Bill of Rights endorsed the
idea. Obviously, the States retain the right to resist federal assumptions of
powers.
So, contrary to the federal government’s
claim and Convention of the States advocates assertion, the states and the
people do have a right to judge the constitutionality of federal acts and to
resist acts they find to be- in Madison’s words – “deliberately, palpably and
dangerously unconstitutional.” Jefferson
put it this way:
The government
created by this compact was not made the exclusive
or final judge of the extent of the powers delegated to itself, since that
would have made its discretion, and not the Constitution the measure of its
powers.” - Thomas Jefferson, Kentucky
Resolutions, 1798
Now let’s look at the second part of the convention
of the States dismissal of your right to resist unconstitutional acts of
government – that they have no realistic chance of success.
Well, tell that to the Georgia legislature
and Governor Deal and the other twenty-five states that have declined to set up
ACA insurance exchanges. In the last
session of the General Assembly the Georgia Health Care Freedom and ACA
Non-Compliance Act passed and was signed into law. HB707 prohibits state
agencies and officials from assisting the implementation of Obamacare.
Likewise Convention of the States might try
to tell that to the people of Missouri who by a large majority just approved a
state constitutional amendment that nullifies federal gun control enforcement in
the Show Me state. Missouri joins 381 sheriffs, 15 state sheriff’s associations
and the National Sheriff’s Association in their defiance of unconstitutional
federal gun control acts.
Convention of the States advocates might also
try to tell that to the twenty-six states that have decriminalized cannabis or
the 24 that are refusing to abide by the REAL ID Act. Saying NO to unconstitutional federal acts is
not unrealistic; it’s happening.
And just saying “NO!” is spreading. More and more states, blue and purple as well
as red, are stepping up, and with each step federalism and the rule of law are
being restored.
Summary:
So, let’s compare.
An Article V
Convention is:
“Having
witnessed the difficulties and dangers experienced by the first Convention
which assembled under every propitious circumstance, I should tremble for the
result of a second. . . .” – James
Madison 1788
Too many what if’s
Takes too long and
the outcome is too much in doubt
Irrelevant – does not
address the fundamental problems: 1) fedgov deliberately ignores and twists the
Constitution as it pleases; and 2) assumes it has sole and final authority to
define the limits of its powers
Just saying NO to
unconstitutional federal acts:
Is happening
Addresses the central
problem
Proven effective
Reestablishes balance
in the state / federal relationship
Provides a civil check
on federal abuses that is employed without the complex, lengthy and risky Article
V process
As citizens across the nation keep the
pressure on their governors and legislators not to participate in and even bar
unconstitutional federal activities, the federal government has less and less choice
but to limit its activities to the powers delegated.
So, let’s don’t waste precious time and
expose the nation to the risks involved in a Constitutional Convention, when we
can and are resisting unconstitutional federal acts by just saying NO.
The "interstate
commerce" clause (Art. I, §8, cl. 3)
Webster's 1828 Dictionary says "commerce"
is the buying and selling of goods.
In Federalist No. 22 (4th para) and Federalist No. 42 (9th & 10th
paras), Hamilton and Madison explain the primary purpose of the clause: To
prohibit the States from imposing taxes & tolls on merchandize as it is
transported through the States for purposes of buying and selling.
The "general
welfare" clause (Preamble & Art. I, §8, cl. 1)
Webster's 1828 Dictionary defines "welfare"
as:
"2. Exemption
from any unusual evil or calamity; the enjoyment of peace and prosperity, or
the ordinary blessings of society and civil government; applied to
states."
It has nothing to do with handouts, public
relief, or the feds doing whatever they think is a good idea.
In Federalist No. 41 (last 4 paras),
Madison points out that Art. I, § 8, employs "general terms" which
are "immediately" followed by the "enumeration of particular
powers" which "explain and qualify," by a "recital of
particulars," the "general phrase." It is "error" to
focus on "general expressions" and disregard "the specifications
which ascertain and limit their import"; thus, to argue that the general
expression provides an unlimited power is "an absurdity."
So yes! The powers of Congress over the Country at Large really are limited
primarily to those few listed at Art. I, §8, clauses 3-16.
Our Framers understood that "general Welfare," i.e., the enjoyment
of peace and prosperity, and the enjoyment of the ordinary blessings of society
and civil government, was possible only with a federal
government of strictly limited powers. [Let that sink in.]
The "necessary
and proper" clause (Art. I, §8, last clause)
This clause delegates to Congress power to
pass all laws necessary and proper to execute its declared powers (Federalist No. 29, 4th para);
"the constitutional operation of the intended government would be
precisely the same if [this clause] were entirely obliterated as if [it] were
repeated in every article"; a power to do something must be a power to
pass all laws necessary and proper for the execution of that power, and thus
the clause is "perfectly harmless," a "tautology or
redundancy" (Federalist No. 33, 2nd & 3rd
paras). Madison writes to the same effect in (Federalist No. 44, under his
discussion of the SIXTH class of powers).
So the clause permits the execution of powers already delegated and
enumerated in the Constitution. No additional substantive powers are granted by
the clause.
Source: Richard Arena
[1] Response to
Questions / Objections from the JBS
[Argumentum ab auctoritate – a false
argument from a genuine authority ]
Answering
the John Birch Society Questions about Article V
Michael Farris, JD, LLM, page 14 “The Current conservative solutions to the
problems of federal abuse of power fall into one of two general strategies: (1)
try to elect more conservatives to federal office; or (2) promote theories like
‘nullification’ that are not grounded in the text of the Constitution and have
no realistic chance of success.”
Convention of the States, Website: Is
Nullification the Answer?, Page 1 The Tenth Amendment is a clear expression of
a defining, foundational principle of the government designed by our Founders:
that powers not delegated to the federal government by the Constitution are
reserved to the states or to the people. But this, in and of itself, does not
imply that individual
states have the authority to independently determine when the federal
government has acted outside the scope of its authority; much less does it
imply that an individual state, upon reaching this conclusion, may simply
ignore a duly-enacted federal law. The Tenth Amendment establishes a principle, but it does not establish a remedy or process. (emphasis in the original)
