Archive for the ‘Article V’ Tag

Turning   Leave a comment

I’m laying down the subject of Article V to move on to another.

Although I have spent a great deal of time and effort looking into Article V, I think it’s important to say that I am not convinced that such a movement will fix anything in our society.

We’ve drifted so far from liberty that we may never return to it without taking a sledgehammer to the current system and hoping a totalitarian dictatorship does not take its place.

Yes, I know there are those who believe that we already live in a totalitarian dictatorship, but friends who have immigrated from former Soviet-bloc nations and China tell me these folks really don’t know what they are talking about. To compare the United States to the governments they grew up under is, in their opinion, ludicrous. They at least have some frame of reference for what totalitarianism really is.

post-secession America mapWhich is not to say we’re not sliding that way pretty rapidly. My friends see that too, which is one reason I research and write as I do, because I think we’re running out of time to fix what is increasingly broken.

So, for a time, I am laying aside the discussion of government to explore something I think has a great deal more influence on us … or should … if we want to be actually free.



Trimming SCOTUS Authority   Leave a comment

How in the world did we end up with a Supreme Court that can rule tyranny is constitutional?


  • Dred Scot
  • Plessy v. Ferguson
  • Affordable Care Act

Interestingly, the first two were later deemed unconstitutional by later courts, but we could have all have come to that conclusion easily enough without the SCOTUS telling us that. Clearly, keeping other human beings in slavery or in virtual slavery is unconstitutional.

So, since I’m throwing mud against a wall to see what sticks …

How about an Article V convention that proposes an amendment that requires that the Supreme Court base its decisions on the actual reading of the Constitution and their decisions can be overridden by state legislatures also operating on the actual reading of the Constitution?

What would be the outcome, do you think?

Trimming Congressional Authority   Leave a comment

What would you say if an Article V convention proposed an amendment that stripped Congress of its law-making authority?

  • I’ve already said I would be in favor of increasing the number of representatives so that representation would be based on populations of around 50,000 — maybe up to 100,000, but no more than that because Congress can’t effectively represent huge Congressional districts.
  • I’ve already said I would be in favor of term limits for Congress and the Senate.
  • I’ve already said I would be in favor of repeal of the 17th amendment to return control of the Senate to the states.

I would like to see an immediate repeal of all legislative laws in the United States and henceforth, all laws that Congress proposes must be signed off by the legislatures of the states — at least three-quarters of them. Once ratified, they would sunset after 10 years if not resubmitted to the states.

Does that seem drastic? What do you think would be the outcome?

Posted April 8, 2014 by aurorawatcherak in Government

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Amend Article V   Leave a comment

Yes, at the end of a series on amending the Constitution through a convention of the states to propose amendments, I am going to address changing the methods by which we amend the Constitution.

We have two methods. The only method that has ever been used is for two-thirds of each house of Congress to propose an amendment, which is then sent to the states for ratification.

The second method is for two-thirds of the states legislatures to call for a convention for the purpose of proposing an amendment (or amendments), which would again have to be ratified by the states. State legislatures have been taught to unnecessarily fear a “runaway convention” in which somehow same-sex marriage or repeal of the 2nd amendment becomes ratified.

The failure of the convention method to operate seemed like an unimportant matter when I first learned of it in college, but functionally it has given Congress a monopoly on all amendments. No amendment that Congress opposes, including necessary reforms of Congressional power, can be enacted if the states give all the power to reform Congressional power to Congress.

There have been a whole host of popular constitutional amendments that have gone nowhere in recent decades because of this monopoly on the power to amend the Constitution. Examples abound — balanced budget amendment, a line-item veto amendment, term limits, etc. — these might have been enacted if there had been a functioning alternative to the Congressional proposal method. That fact that one exists and we’ve thus far refused to use it doesn’t speak highly for the states as the guardians of liberty.

Cleaning up the wording in Article V so as to make it clear that this is not a constitutional convention but a convention for states to propose amendments would probably lay (some) those fears aside.

Of course, the successful exercise of an Article V convention would also do that. We fear what we have not done before.

Let’s do it!

Amendment Restoring Federalism   Leave a comment

The Founders feared concentrated powers and so created a federalist system.  Contrary to modern progressive spin, even the Federalists at the Constitutional Convention were not big government advocates (with the possible exception of Alexander Hamilton). They were federalists in that they believed the states, which formed the union, retained the strong position in the relationship and informed the “federated” government of its duties and obligations. That formulation of power — from states to DC and not the other way around — was the standard for about 80 years. We were not a nation, so much as a federation.

The term “federalism” has been demonized since the Civil War, relabeled “states’ rights” and usually forced to walk lock-step with slavery and the Confederacy. States’ right has been painted as evil and inherently abusive and anyone who questions that mindset is deemed “separatist”, “racist” or “unAmerican.”  The tactic has worked. The word “federalism” invokes passionate emotion in a day when so few Americans have any idea of the history of federalism or even of the Constitution.

Federalism is about states’ rights, yes! But it is also about individual rights. We are all, or could be, closer to our state and local governments than we are to the national government. Our Founders understood this and yet, for about a century, the federal government has increasingly sought to homogenize laws throughout all the states rather than allow for regional variations.

In 2011, the Supreme Court ruled unanimously in Bond v. United States that “by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

And yet you need to look no further than the EPA regulations on “clean” air to see that the homogenization of laws throughout all the states violates the liberty of individuals living in Alaska. Ultimately, the federal overreach rests with an interpretation of the Constitution that our founders would not recognize.

The powers “reserved to the states” under the 10th amendment are functionally non-existent if the Constitution’s enumerated powers are infinitely capricious. The 10th amendment doesn’t tell us what powers belong to the states, but its message is clear — the federal government has limited and enumerated powers, the states have all the rest and the states are required to exercise vigilant enforcement to keep the federal government in its place.

Yet, in 1985, a 5-4 court ruled in Garcia v San Antonia Transit Authority that “state sovereign issues — are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”

In other words, the judiciary is unwilling to limit federal power so beg Congress to do it.

Does any of us really think Congress will limit the power of the federal bureaucracy? Mark Begich is my senator — he who advocated for a carbon tax that would give ultimate power over commerce.

Article V is the people’s means to force reform where reform is needed. The only other non-violent alternative to strengthening federalism is simply to emigrate to some other country and hope things will be better there. I think that has about as much chance of working out as Mark Begich representing the people of Alaska.

Amendment to Restore Commerce   Leave a comment

Randy Barnett, constitutional law professor at Georgetown University suggests a list of 10 proposed amendments to the United States Constitution that would constitutionally enshrine certain ideas based on states’ rights and free market libertarianism.

We’ve already looked at some of his proposed amendments. Restrictions on the Congressional power to tax, Congressional term limits, and the “repeal amendment” are examples.

Amendment 2 of his bill of federalism would limit the Commerce Clause, by overruling the current interpretation, making it clear that commercial activities that occur wholly within a state are not subject to Congressional legislation.

It would restore the original intent of the Commerce Clause and leave intrastate activity to be prohibited or regulated by the states, or be left completely free of any regulations as states may choose.

If the regulations of any state become too oppressive, it is much easier for citizens or businesses to move to a friendlier state than to leave the country.

The proposed amendment would expressly permit Congress the power to regulate interstate pollution and to address such national security matters as the possession of weapons of mass destruction.. It would also leave untouched the delegated powers of Congress to regulate wholly intrastate activities to enforce civil rights as authorized by the 13th, 14th, 15th and 19th amendments.

It only restricts the improper interpretation of the Commerce and Necessary-and-Proper clauses that have been applied to wholly intrastate activity.

It’s a great idea, but ….

Doesn’t the 10th amendment already make clear that the federal government may not stick its fingers into intrastate commerce? If they’re ignoring the 10th, how does adding another amendment make them any more likely to obey it?

Constitutional Tax Reform   Leave a comment

In November 2013, Congressman Jim Bridenstine introduced HJ Resolution 104 to repeal the 16th amendment. Bridenstine and his cosponsors, Ron DeSantis and Thomas Massie contend that the 4th amendment was negated by the 16th amendment. The 4th amendment acknowledges “the right of people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures.”

Repealing the infamous amendment that created the national personal income tax is kind of a holy grail among conservatives. Even if you think repeal is unlikely, it still makes sense on principle. We can argue what should replace it … if anything … but the fact is that the 16th amendment shattered the Constitution, which required proportional taxation through the states, not an individual income tax that makes every income earning American a direct slave of the federal government.

The trio of Congressmen do not believe that abolishing the 16th Amendment would be a complicated process if their plan attracts the full support of the American people. House Joint Resolution 104 would eliminate the gift and estate taxes, taxes on investment earnings, and both personal and corporate income taxes. After the legislation gains approval there would be a two-year time period in which a new revenue system might be crafted.

The authors and supporters of House Joint Resolution 104 do not feel that knowing exactly how the 16th Amendment will be replaced has to be accomplished before repealing the amendment and abolishing the IRS. According to the Repeal 16 website, taking care of the “root problem” is the most important part of the equation. The website noted that before the 18th Amendment was repealed, ending the Volstead Act (prohibition), the federal government had not yet decided how to regulate alcohol.

“The 16th Amendment should be repealed, and the IRS should be eliminated. Viable alternative plans for raising revenue fairly to support constitutionally enumerated functions of the federal government have been proposed. As long as the 16th Amendment is in place and lobbyists dominate Washington, these alternatives will never be considered. The income tax code has become too complex for citizens to understand, and the annual time and expense required to comply with the income tax code has become intolerably burdensome.” Jim Bridenstine

According to the site “Repeal 16), The repeal and replace the Sixteenth Amendment approach is fairly simple, straightforward, and contains just three primary steps:

  • · Demand that every member of the House and Senate agree to co-sponsor the Repeal the 16th Amendment bill.
  • · Deliver that demand by writing, and emailing legislators, rallying friends, attending town-hall meetings.
  • · Engage in primary election activities against incumbents who choose to stand with the IRS and against we the people.

And, my own suggestion is, of course, for this to be a primary subject at an Article V convention of the states.

The immediate result of the repeal of the 16th amendment would be a return of the right of states to gather taxes in the way that they choose and to submit proportional payments to the federal government. How that would look would vary from state to state. If you’re okay with paying a state income tax, move to a state with an income tax. If you’re okay with paying a state sales tax, move to a state with a sales tax. If you would rather not pay taxes directly, you can advocate for your state to institute some other system. Alaska might just sell its natural gas to Japan and live off those proceeds, for example.

A secondary result would be to end revenue-sharing. That’s where the opposition would come in. But think about it! If the citizens of Alaska are no longer sending more than 1/3 of their income to the federal government, they might be willing to pay an income tax (or something else) to the state to receive tailored benefits that the citizens of individual states desire … or not, as the case may be. We do have the 13th largest oil reserve in the world, after all.

The federal government would still be funded, though likely at a substantially lower level. The jobs the federal government does now that are necessary (I’m willing to accept that there may be a few) can be done as effectively by state governments or … well, really, there’s a lot of stuff that can done by private industry and, if it is something people cannot live without, it will still exist, because people find a way to do what they cannot live without.

The major difference would be that the federal government would be beholden to the states for its funding, which would keep it in check … theoretically … if we remember what happens when we don’t keep our eye on it.

Repeal Amendment   Leave a comment

Randy Barnett, a constitutional legal scholar and professor at Georgetown University Law Center suggested we need a “repeal amendment” and a “Bill of Federalism” in order to return us to our constitutional roots.

The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Mark Levin’s book The Liberty Amendments offers this as well.

Such a proposed amendment would provide a targeted way to reverse particular congressional acts and administrative state regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

The Repeal Amendment alone will not cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.

Perhaps its most important effect will be deterring even further expansions of federal power. Suppose, for example, that Congress decides to nationalize private pension investments. Just as it must now contemplate a presidential veto, so too would Congress need to anticipate how states will react.

The Repeal Amendment would help restore the ability of states to protect the powers ‘reserved to the states’ noted in the 10th amendment. And it would provide citizens another political avenue to protect the ‘rights … retained by the people’ to which the Ninth Amendment refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about.

When I read it in Levin’s book, I felt it might cause undue confusion in the system, but maybe that was just his wording. Levin is a statist of the conservative stripe, so I’m always trying to figure out what new tangle of conservative red-tape he wants to promote now, but Barnett is a libertarian, so his reasoning is a bit more … well, reasonable.

The idea is to return states to the cats-bird seat where they were intended to be at the writing of the Constitution. It would allow states to strike down unconstitutional federal regulations and laws without requiring an amendment to the Constitution to address specific problems.

Remember what I said about the post-Civil War, the Progressive Era and Civil Rights amendments. These addressed specific issues through the Constitution, creating long-term unintended and negative consequences. The 18th amendment was recognized early as a bad idea and repealed through the 21st amendment, but it took 13 years. The 16th and 17th amendments have largely destroyed federalism by denying the states any substantive voice in Washington DC and that needs to be corrected.

Much that is wrong with our country today is the result of federal judges (who work for the federal government) interpreting the Constitution in ways it was never meant to be used. We can’t expect employees of the federal government to correct errors that benefit them and, yet, that is exactly what we’ve been doing.

Why are we surprised that it doesn’t work?

Something like the Repeal Amendment would provide the states with the means to push back against the federal government where it has overstepped its bounds without having to amend the Constitution every year. Such an apparatus could lead to the dismantling of much of the federal administrative state at the behest of the states as they take back the authority they wrongfully ceded to the federal government.

Do We Need Constitutional Regulatory Reform?   Leave a comment

Mark Levin suggested in The Liberty Amendments that we need an amendment to restrict federal regulations.

In theory, we already have one – the 10th amendment recognizes the rights of the states to limit federal regulation within state borders. Of course, that amendment was effectively repealed sometime in the 20th century. We don’t actually need another amendment for the federal government to ignore. We need state legislatures to stand up on their hind legs and exercise their 10th amendment rights and the obligations to their citizens that come with it.

An Article V convention of the states might be a good opportunity for states to stand up as a group and announce their intention to tell the federal government’s regulatory agencies to “go pound sand.” So, while the 10th amendment theoretically acknowledges states’ rights, perhaps the 10th amendment requires amendment to make clear that the states can reject federal regulation under many circumstances and to provide a clear mechanism for them to make use of that right.

A handful of Representatives, including Don Young of Alaska, have tried to reform the administrative state through the REINS Act, but it appears that a legislative remedy is not possible, so sadly, we do probably need an amendment that dismantles the administrative state that operates with delegated Congressional power largely within the executive branch, but often without executive oversight. Because it acts as an extra-constitutional fourth branch of government, it is impossible to control and should simply be done away with or at least made to submit proposals to Congress justifying their continuing existence.

Congress needs to be held responsible for the delegation of its authority and made to justify it periodically. And the Executive Branch should have to submit to Congress periodically to justify the existence of Executive Branch agencies. Yes, that would include the military.

Reforming the SCOTUS   2 comments

Mark Levin’s Liberty Amendments suggested a constitutional amendment to introduce term limits for US Supreme Court justices. Is that a good idea?

Northwestern University School of Law professor James Lingren debated Columbia Law School professor Thomas W. Merrill on this subject on March 11.

Lindgren advocated for a proposed constitutional amendment limiting justices to 18-year-terms with each term expiring in odd years, giving presidents two nominees for each 4-year executive term. He argued that term limits would help return the Supreme Court to its historic norm of shorter terms and bring it in line with other judicial entities in the United States.

“Except for the state of Rhode Island, no other western jurisdiction has life tenure for high court justices,” Lindgren said. “Term limits would help usher out judges with mental decrepitude and loss of stamina, eliminate strategic retirement for political reasons, reduce animosity in confirmation, and return to traditional levels of judicial independence.”

Merrill contended that term limits could erode public perceptions of the Supreme Court’s legitimacy by associating justices more closely with the outcome of contested elections for president.

“Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution.”

It’s important to note that the Constitution makes no mention of term of office for Supreme Court justices. Technically, an amendment is not needed to change the system which was instituted by John Marshall, the fourth Chief Justice. No, SCOTUS justices have no always been appointed for the remainder of their lives.

The basic purpose of lifetime appointment is to assure the integrity of the power granted to Court justices and protect them against unwarranted interference from either the legislative or executive branch. Lifetime appointment, it is said, maintains the neutrality and apolitical attitude of the Court. Because SCOTUS justices do not need to worry about reelection, they have no incentive to appease any particular group in order to win support. This lack of political bias improves the quality of the decisions rendered.

It’s been argued that a constant change of justices would render inconsistency in what is considered constitutional, that this would change with every new president who nominates his two to four justices according to his political beliefs.

Of course, we know that isn’t true. Presidents often attempt to buttress their agendas by selecting nominees favorable to their views. These justices then serve long after the president retires. Lifetime appointment secures a justice against “retribution” for decisions going against the current president or Congress, but it also allows justices to “rule” with abusive arrogance for decades, changing the political and social landscape through reinterpretation of the Constitution in ways that bear no resemblance to the actual text.

When I thought seriously about the proposed amendment offered by Professor Lindgren, it occurred to me that President Obama could have replaced one-third of the Supreme Court during his terms of office. My stomach started to hurt. It’s one thing to give that sort of power to Ronald Reagan who picked Antonin Scalia and Anthony Kennedy, two very different justices. It’s another to give that power to a political ideologue like Obama.

Levin suggests a super-majority legislative override of Court decisions. Oh, my! Political pressure in spades reminiscent of Roosevelt’s court-packing.

But … there’s no question something needs to be done. Since we’re proposing amendments, here’s my suggestion.

  • Supreme Court justices are to be appointed for 12-year-terms.
  • Terms of office expire every four years, so a president may nominate one new nominee in each of his executive terms.
  • A public record shall be published online of justice votes in cases heard by the Court, including how that vote correlates with the usual understanding of constitutionality.
  • Every year, justices must stand a confidence vote from state legislatures. Legislatures may determine their vote as befits their states. A justice receives a no-confidence vote if more than half of state legislatures pass a no-confidence vote.
  1. When a single justice receives a vote of no confidence, the president may nominate a replacement. That justice may serve only to the end of the term of office his/her predecessor held (so as not to give some presidents a nomination advantage over time)
  2. If more than one justice receives a no-confidence vote, the president may nominate the first replacement, while the Senate would nominate the second and subsequent replacements, and these nominations would require a super-majority approval in the House of Representatives.
  • Ordinary approval in the Senate would remain in force for ordinary nominees.
  • A president may nominate a justice for a second 12-year term, but no justice may serve more than 24 years.

Yes, it’s different from what we’re used to, but it would provide new blood to the Court on a regular basis and would prevent any one president from stacking the Court with his ideologues. It would also involve state legislatures, which would be free to involve the people in their decisions. The provision of publicizing Court decisions on the web with correlation to the usual understanding of the Constitution would allow people to educate themselves so they might guide their legislators in how to vote.

This provision, by the way, is similar to what Alaska does with its justices, who are appointed for life, but must stand a no-confidence vote on the general ballot every 10 years. We recently showed a bad justice the door, so it works … if we work it.

There is something more required for federal district judges. Similar term limits and no-confidence votes by the state legislatures in their districts would likely help a lot. Perhaps having the nominees approved by state legislatures in their district rather than the Senate would be a good idea.

Or we could just do away with the federal judiciary altogether, like my anarchist friends suggest, and let private market entities take their place. It’s important to recognize that the “anti-federalists” in the Constitutional Convention of 1789 considered the judiciary to be a real threat to liberty and the history of the SCOTUS doesn’t disabuse their sentiments. Just think about the Dred Scot ruling or Plessy v Ferguson or Roe v Wade.

There’s wrong and then there’s Supreme Court wrong and their wrong has, historically, been a deeper level of evil.

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