Is Changing the Constitution Really the Answer

to federal abuse of power ?

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 Citizens for Self-Governance national push for a Convention to propose changes to the Constitution, my first reaction was, “Why do we need to amend the Constitution, the feds haven’t paid heed to it for 150 years.”  But 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.

Curiously, 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 that was 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 COS advocates.  

I found the COS’s central argument, that changes to the Constitution are needed to clarify the meaning of the enumerated powers, to be what people who engage in formal debate call 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] 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, 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.”  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’s as true today as it was in the 5^th 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 intended.  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 and commonsensical reading, or by Madison, Hamilton and Jay’s explanations in the Federalist Papers, but by whatever those in power want it to mean. 

Wilson, our first 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 his/or her 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; that is the very thing the Founders fought to overthrow. The rule of man is the hallmark of dictators, monarchs and tyrants of whatever title. 

It is no surprise then that with the Supreme Court and the other branches of the government operating by a Living Constitution the Bill of Rights has been turned upside down.  In the Progressive construction of American government, We the People are not sovereign and the States have no right to check federal abuses.  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 4^th 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 5^th 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 as written and intended. 

Given this reality, how can we not consider the possibility, indeed the probability that the federal government will ignore and twist any modifications to the Constitution especially any intended to curb government power and benefits? 

Why expend would we waste time and effort on a Convention that cannot correct the real problem when we can simply apply more of a remedy that has already begun the process of restoring federalism, the rule of law and the free market.     

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 activities constitutionally prohibited to the federal government.  

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
  COS 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.”  Let’s examine both assertions.
  The right to resist federal government abuses of the Constitution is found in the 9^th and 10^th 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 COS’s 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 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 COS 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 COS 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.
  COS 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:

• Untried
• Was strongly discouraged by Madison and others framers

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. . . . n50 – 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: 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 check on federal abuses that is employed without having to go through 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 will have little 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.

Richard Arena

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[1] Response to Questions / Objections from the JBS

[Argumentum ab auctoritate – a false argument from a genuine authority ]