Archive for the ‘constitutional convention’ Tag

Suggested Amendments   Leave a comment

This is out of sequence, but I like what I wrote, so I’m running it anyway.


French philosopher Alexis de Tocqueville wrote in Democracy in America about soft tyranny –

“It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”

Do we not live in that definition?

The United States of America were conceived under a concept of self-governance. People were to be informed and passionate about government, to direct their representatives in the paths chosen by the people, and to remove them from office when they failed to represent their “sovereign” (the people) as authorized. And, today, Congress has a less than 10% favorability rating and a 90% incumbency.

How does that happen?

Beats me, but we should do something about it. But Tocqueville pointed out 200 year ago that people tend not resist soft tyranny because it sneaks up on us, giving the tyrants time to convince us that the world we live in is a normal world that we should accept. Pay no attention to the concertina wire topping the societal bounce house. Have fun! Enjoy! There’s nothing to concern your little heads over.

Except the looming $17 trillion national debt and the unfunded liabilities for entitlement programs that now exceeds $90 trillion, which is growing at about $5 trillion a year. Add to that an imperial presidency, Congress that has ceded most of its authority either to the president or to the administrative state, and a judiciary that apparently mislaid the Constitution in 1934 and we should be terrified about what is going on around us. Past generations historically grew a backbone during times of crisis. Most of us went shopping and the few of us that woke up and started complaining got our tax-exemptions stuck somewhere at the IRS and have apparently decided to wait until that is resolved before complaining some more.

Except … we’re one states’ applications away from an Article V convention on a balanced budget amendment. I’m not convinced this is going to solve anything, but it’s a step in the right direction. In 1980, the 32 applications asked to cap the debt at $1.4 trillion. Good times! We’re obviously in a great deal more trouble than we were then. We’re also as a people a great deal more informed (thank you, Internet) about our situation, which means there’s a far better chance of this amendment actually being ratified by the states. In 1985, Congress – recognizing that the people, through their state legislatures, were about to take the budget process out of their hands, “got serious” about debt and passed the Gramm-Rudman-Hollings Act and the applications quit coming in.

That was decades ago, but the applications are still there. The Constitution doesn’t sunset the applications. We only need one more state to apply and then we can have an Article V convention on this subject, which should probably set the debt limit at some percentage of GDP. Historically, the economy starts to suffer at around 18%, so maybe a little less than that.

But it won’t fix anything on its own because an amendments convention of this sort is subject-limited and the solution to balancing the budget is pretty obvious – just tax everybody at about 68% of our income and viola – the budget is balanced.

Wait! That won’t work! Government’s budget may be balanced, but how am I supposed to pay my mortgage on 32% of my paycheck? Yeah … it’s more complicated than that, which is why – should a convention actually be called, the delegates should address more than just a balanced budget amendment. This is why state legislators working through the organization Convention of the States are working toward a more general subject convention. Congress may insist that the amendment coming from a general subject convention are not eligible for ratification, but let’s face it … capping taxation rates is not just a good idea, it’s a necessary one.

In fact, the delegates should make recommendations (which are non-binding even if there are sufficient applications) for amendments on several issues – including repeal of the 16th and 17th amendments and:

  • An amendment that sunsets all federal regulations unless they are specifically approved by a Congressional committee
  • An amendment that provides for the repeal of future (I’d say all) federal regulations by a timely 3/4s vote of state legislatures
  • An amendment setting term limits for Congress
  • An amendment setting term limits and confidence votes for the Supreme Court
  • An amendment allowing a super-majority of Congress and/or state legislatures to set aside Presidential executive orders (or the converse, presidential executive orders must be ratified by a super-majority of Congress and/or the state legislatures before they can take effect).
  • An amendment making it easier for states to apply for an amendments convention while keeping the ratification threshold at 3/4s of the states.

And, no, I didn’t come up with most of these. I borrowed them from Mark Levin’s The Liberty Amendments.

Why We Must Use Article V?   Leave a comment

Did I mention that an amendments convention is not a constitutional convention?

It is a convention of state-authorized delegates called to propose amendments to the constitution. It doesn’t make laws and the state legislatures are not required to ratify the amendments produced by that body.

The Founders put Article V in the Constitution for a reason. They foresaw a time when Congress might refuse to act on needed reforms and they wanted to provide the states a method to go around Congress when needed. The states-application-for-convention has not been used, but there are times when it probably should have been. Avoiding the Civil War comes to mind.

Today, we are in a similar situation. Our country is deeply divided and the political class appears to be unable or unwilling to address the problems that beset us at every turn. An amendments convention seems like a better idea than a civil war to deal with issues like term limits, fiscal restraint in Congress or clarifying the federal-state relationship. In fact, I believe a more broad-subject convention might provide the country with ownership of our Constitution. The Constitution doesn’t explicitly provide for that. It creates a cumbersome process and that’s a good thing. That’s right. What I want is not necessarily what we should get. Amending the Constitution should be considered tinkering with the foundation of a building. It should be done when needed, but avoided when things are sound.

Right now, we’re very close to an amendments convention on the subject of federal debt. Most Americans don’t like the idea of our children and grandchildren paying down the out-of-control federal debt over the next several decades. We’re about to tip over into the $17 trillion range, so we need to face facts – Washington is not going to fix itself. The best hope for curtailing the federal debt is using the constitutional powers of the states.

One suggested amendment is a balanced budget provision. Remember, 34 states would have to request this to trigger a convention. We’re currently at 33.  If a convention were called to propose a balanced budget amendment, 38 states would be needed to ratify it. The Goldwater Institute has suggested the proposed 28th Amendment require the federal government to obtain the approval of 26 states to approve any increase above an initial debt limit.

Yes, this is the governmental equivalent of asking Dad to cosign your car loan.

This role for states is nothing new. State legislatures used to exercise a great deal more control at the federal level before the 17th Amendment removed them from the role of appointing U.S. Senators. Senators understood that their votes on the floor were subject to scrutiny by the folks back home through the legislature and they acted accordingly. Today, they answer more to multinational corporations and lobbyists than they do to mere voters.

We really can’t blame the out of control federal government on a particular party or the President. The problem is the centralization of power in Washington D.C. The anecdote is federalism – 34 state legislatures are needed to call an Article V amendments convention, 26 states control the convention, and 13 states can block any unacceptable amendment proposal from ratification.

By requiring state approval for an increase in the federal debt, states would be reclaiming a modest portion of the authority over federal policies that the Constitution intended. If it works, it could become the prototype for other reforms that shift the balance of power back to a more equal footing, giving the states and the people real leverage rather than empty promises.

The country was at a similar crossroads in the late 1850s and we didn’t take advantage of the opportunity that Article V provides then. We paid a heavy price for that failure. We need to take advantage of the Founders’ wisdom before it is too late to prevent what so much frustration is likely to produce.

Although currently we’re on the cusp of activating an amendments convention for a balanced budget, and it is a good idea to have a limited subject convention, our current circumstances may require that we have a more open-subject convention or more than one convention over the next decade to clear up matters that have long been at issue in the federal-state relationship. State legislators met at Mt. Vernon in December 2013 to discuss guidance rules for such a convention. Mark Levin’s book “The Liberty Amendments” contains a lot of suggested amendments for proposal. We cannot expect the federal government to reform itself. The states are all that stands between we the people and national meltdown. Do we use them as they were intended or do we come to the modern equivalent of 1860 and find we’ve no good way back from a disaster of our own making?

Amending the First Amendment   Leave a comment

When the Citizens United case stripped the state of a powerful censorship tool, many progressives began discussing amending the First Amendment.

While I don’t believe the First Amendment would be at risk of major revision in a convention of the states to propose amendments, I’ve decided to deal with the issue more squarely than when I wrote my series on this six months ago.

Autumn of 2013, Senate Democrats (Jon Tester of Montana and Chris Murphy of Connecticut) proposed a constitutional amendment as an attempt to reverse the Supreme Court’s 2010 decision in Citizens United vs. FCC, which struck down restricts on political speech by corporations, unions and nonprofits. Many legal scholars at the time said that the amendment would eliminate all constitutional rights for nonprofit groups and many religious organizations. It would, some legal experts contended, also allow the National Security Agency to seize information on Americans at whim. It would have authorized Congress, states, and local governments to restrict what most newspapers publish, what most advocacy groups (including the ACLU, Sierra Club and NRA) say, restrict what is said and done by most churches, restrict the speech of labor unions, and seize the property of corporations without just compensation.

Does that sound hyperbolic? Hmmm ….

Nearly all major newspapers, magazines, book publishers, movie studios, record labels and broadcasters are owned by corporations. A company cannot participate in the stock market to raise investment capital if  it’s not an organized corporation. Most nonprofit organizations are organized as corporations, including most churches (though some states allow churches to hold a special type of corporate status). Many ordinary businesses (the feed store I buy my flour and dog food at and the locally-based bookstore, for example) are corporations who would have been affected by this proposed amendment.

At least that was what was claimed –

Here’s the wording of the Joint Resolution

Proposing an amendment to the Constitution of the United States to clarify the authority of Congress and the States to regulate corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state.

The following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

  1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.
  2. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the State under this Constitution.
  3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are unalienable.

The funny thing is, philosophically, I agree with this. Corporations are not people and so should not hold individual liberty. That would be completely off the topic, however.

My point is that there are already attempts to amend the 1st Amendment. The proposal is languishing in committee and will probably never see the light the day, but if Congress passes it …

Do we seriously think that 38 states (75 separate legislative bodies) are going to ratify it?

Which is not to say that a convention of the states could not discuss whether individual rights really protect the liberties of mega-corporations. That might, given Citizens United, be a good conversation for us to have.

Our current government no longer follows the Constitution. It acts as if portions have been amended already. More tellingly, only slices of the population are up in arms about it. I’m going to go through the Bill of Rights and examine whether these acknowledgments are at any risk of being repealed or revised by a convention of the states and whether they haven’t already been effectively revised without our permission.

A convention of the states might make it clear that these rights remain with the people and Congress … and the Executive and Judicial branches — may not infringe upon our rights.

Forgotten Amendments Part Deux   Leave a comment

Now we’re moving into the “Civil Rights” era amendments.

I’m generally in favor of taking a good hard look at any amendments that were passed due to a specific period in history. The United States Constitution should not favor any group of individuals over another and when we do, we should eliminate that discrimination. The 24th Amendment is simple and doesn’t seem to cause any harm, but let’s discuss whether it was even necessary to make a prohibition against poll taxes a constitutional provision.

Yes, I know about the Southern states attempting to block black voteres from the polls by use of poll taxes, literacy tests, etc. I understand why people felt this was a necessary constitutional provision, but do we foresee this technique working in the 21st century? It just feels really knee-jerky and as if it could have been solved by a Supreme Court case.

The 25th Amendment was a necessary move toward clarifying presidential succession. If the 12th Amendment were reevaluated, the 25th might need to be revisited, not because there’s any problem with the 25th per se, but because the two amendments interact and a convention of the states might see a disharmony that would require correction.

I personally registered to vote when I turned 18 and I think I’ve been a responsible voter in my 35 years of suffrage. I also had parents who taught me the value and the responsibility of my vote. Sadly, too many young people vote with their feelings rather than their heads, resulting in lunacy like two terms for Barack Obama. It should be noted that 18 to 21 year olds make up less than 5% of the vote, generally, so they’re practicing and hopefully learning some hard lessons from their voting behavior. We might want to have a discussion about it, but my feeling is – they’re adults and citizens of the United States.

I personally would like to see a citizenship test administered before one could register to vote, just so people actually show that they have a basic knowledge of what is at stake, which is one reason I would favor a repeal of the “voting” amendments to replace them with a single amendment that perhaps provides some sort of safeguard against stupid, uninformed voting. But that might just be me wanting something unconstitution because it makes pragmatic sense.

The 27th Amendment didn’t go far enough in limiting the power of multi-term Senators and Representatives to enrich their own pocketbooks. Only if it had been coupled with term limits might it have been effective. It’s worth a review to see how it might be strengthened, but without term limits, it probably can’t be.

My primary problem with all the “forgotten amendments” is that they are forgotten and that tends to make me wonder if they’re necessary or if they were era-specific political machinisations.

Forgotten Amendments   Leave a comment

I termed the next seven amendments the “forgotten amendments” because … well, almost nobody can remember them, which should make us wonder about their efficacy.

The 20th Amendment was a housekeeping device that I can’t find a real problem with, in and of itself, except for an unintended consequence. Delegates at a convention of the states to propose amendments could have a great conversation about whether Congress needs to be in almost perpetual session. Perhaps we should strive for them to spend at least six months out of the year in their home districts … you know, talking to their constituents … you know, the people they were supposed to represent. Is their entrenched occupancy of DC a product of this amendment or just a product of their elitism? What do we want to do about it? Why not discuss that while we have the opportunity?

The 21st Amendment repealed the 18th. Enough said. I’m going to visit these twin amendments at the end of the series because it is indicative of how we ought to reform government when necessary.

Now, the 22nd Amendment has had some real attempts at repeal. Partisans always want their president to be able to run for more than two terms. While it would be tempting to allow a really great president to stay in office, I think we’d be stupid to do it and so far, Congress has agreed. There is a reason the 22nd Amendment was pushed through right after the death of the only president to service four terms and it wasn’t because people thought they were wise to have elected him to more than two. Roosevelt worship avoids the topic, but significant numbers of Americans thought that two terms for the president was enough. Congress has not advanced the proposed amendments — there have been three since Obama became president. I don’t think 38 states could agree to change the 22nd either.

Given the resounding success of the 22nd amendment, a convention of the states could discuss term limits for Congress. That would be a step in the right direction toward returning control of the government back to the states and the people. If you read the “anti-Federalist” papers you find that the Framers actually discussed term limits for Congress. I think they could not conceive of a future where people live nearly 20 years longer than they did or they would have put a term limit provision in the Constitution’s body, but had they done that someone would have lobbied to amend the Constitution to allow people to serve for decades to reflect our new longer lifespan. We’d eventually have wanted to repeal that amendment because it is silly that Don Young has been a US Congressman for 40 years, but Alaskans are not going to stop electing him as long as seniority equals power in Congress.

The 23rd Amendment was also an acknowledgement of the right of all citizens to self-governance. It allowed DC residents to vote for President. It shouldn’t have been necessary. It seems self-evident that DC residents ought to be allowed to vote like all other citizens, but it became a political football that required Constitutional amendment. I’ve already said I would be in favor of a comprehensive replacement amendment that covered all the voting issues. I’m planning on a article about voting in general at the end of this series, btw.

Women’s Voting   Leave a comment

We know I’m skipping the 18th Amendment because it was already repealed by the 21st, right? The only thing I have to say about it is that Prohibition was another Progressive-era lunacy that led to the rise of organized crime and its unholy alliance with the big-city Democratic machines and labor unions.

So, we’ve reached the 19th Amendment and I’m a woman, so we don’t need to discuss this, right?

Actually, we do. First – all humans are created equal and all American citizens should have had the vote from the beginning and … hey, there were localities and some states that allowed women to vote before the 19th Amendment. Did you know that? Plenty of towns and counties allowed women to run for and hold public office. New Jersey constitutionally permitted women to vote from 1776 to 1807. The Liberty Party of 1848 nominated Lucretia Mott as Vice-President. Portions of the Republic Party advocated unsuccessfully for the inclusion of women’s suffrage in the 15th Amendment. Many western states granted women suffrage upon statehood. Wyoming acknowledged women’s right to vote in 1869. Many Eastern states followed the example of the Western states. In fact, most states had already acknowledged some degree of suffrage by 1920 when the 19th Amendment passed. Women’s suffrage would have come as a natural result of states’ rights, which makes you wonder why an amendment was considered necessary. A case might be made the slaves (or former slaves) could be denied the vote based on the Constitution, but the US Constitution did not specifically deny women the vote prior to the 19th amendment. It was state laws that denied them suffrage and those laws were changing to a point where more than half the states allowed women to vote by the time the 19th passed. When I see something like that, I have to wonder … what else was going on that has been lost to revisionist history? 

Personally, I’m down with the 19th Amendment. My only issue with it is that far too many of my gender vote with their feelings rather than their heads. Barack Obama won both of his elections on the strength of the women’s vote. What is up with that? Are we as a gender really that stupid?

I doubt a convention of the states to propose amendments would end women’s suffrage, just as it would not end black suffrage, suffrage for 18 years olds or the DC vote. Some ideas just make so much sense under the “all men are created equal” banner that you wonder why folks didn’t “get it” from the very beginning. I still think the “voting” amendments might be combined into a single amendment that would make it much clearer than the current ones do.

17th Amendment Ate Liberty   Leave a comment

The 17th Amendment made the Senate more democratic … and that has not been a good thing. The second Progressive Era amendment provided for direct election of senators. That sounds good, right? Not so much. It has led to the massive expansion of federal power over the past several decades, for one thing.

The United States, in case you were asleep in Government class during the five minutes in which the teacher covered it, is not a democracy. We are a constitutional republic. Many of our strengths lie in our undemocratic institutions. Took a look at the Supreme Court. Is that a democratic institution? Heck, no! They’re appointed for life, not elected every 4-6 years. Look closely at the Constitution itself. It requires any changes to its structure to have the consent of a supermajority and it contains the Bill of Rights, which is an explicitly counter-majoritarian component of national law. Strong protections for free speech and religion, the right to bear arms, due process, privacy and the right to a jury trial are triumphs of minority rights. Liberty, not democracy, is America’s highest idea.

Thus, the American system was deliberately designed to balance power between the various branches of government, guaranteeing individual rights against majority rule and protecting the people from tyranny whether we liked it or not. The United States government was arranged as a permanent bulwark against federal encroachment. “Changing times” wasn’t an acceptable justification for the undoing of this system in 1913 and it still isn’t. Wilson-era progressive philosophy aside, the federal government was not intended to be a wholly separated layer of government. It was meant to be intertwined with the states to such an extent that it could not ride roughshod over their interests without strong opposition.

As James Madison resolved during the debate over the Bill of Rights:

The 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.

Madison made clear in the Federalist Papers, in order to defend the vertical checks and balances that allow America’s federal system to function, senators would be “elected absolutely and exclusively by state legislatures.” The House is the people’s representative body. The Senate was supposed to represent the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously.

It makes no sense to argue that returning to the original arrangement would “take away” the “rights” of the people than it does to maintain that not being able to vote directly for Supreme Court justices violates our democracy. Everything has its place! The Senate was not designed to indulge popular sovereignty. Although it’s been a while since the original intent of the Constitution was recognized, the states are not regional departments of the federal government. The architects of our Constitution hard-wired the state legislatures into the documents structure, so that states would have a working mechanism by which to resist the expansion of federal power.

The 17th Amendment short-circuited that. The states lost their place at the federal table when the Senate became another House of Representatives. Federalism was deeply damaged and “all government, domestic and foreign, in little as in great things,” is “drawn to Washington as the center of all power” (Thomas Jefferson). Returning the selection of senators to state legislatures would help to focus citizens’ eyes locally, where they belong.

The primary argue for the 17th Amendment in 1913 was a reduction in corruption. Money was said to be rife in politics; direct elections would stamp it out. Lobbying by big business was staining the republic; direct elections would cut the buggers off at the knee. The small constituency that a senator served effectively gave him tenure; an amendment would make the body competitive. Senates were exhibiting extreme moral turpitude; the rigors of direct election would make them moral.

Did we get what we wanted by taking a machete to Madison’s handiwork? There is more money in politics than ever before; direct elections have served only to cut out the middleman between lobbyists and politicians; senators rarely lose their seats; and Ted Kennedy killed a woman and got away with it. Need I elaborate?

In retrospect, the amendment failed to accomplish what was expected of it, and in most cases failed dismally. Exorbitant expenditures, alliances with well-financed lobby groups, and electioneering sleights-of-hand have continued to characterize Senate campaigns long after the constitutional nostrum was implemented. In fact, such tendencies have grown increasingly problematic. (CH Hoebeke, Humanitas, 1996)

The 17th is a testament to overarching modernist hubris – an embrasure of temporary over the permanent.  Sadly, it benefits those who would be required to amend it, so the only chance for it to be repealed/amended is a Constitutional convention.  Ain’t democracy grand?

16th Amendment Shattered Constitution   Leave a comment

The 16th Amendment was in direct violation of Article I, Section 9 of the Constitution, which states “No capitation, or other direct Tax, shall be laid unless in Proportion to the Census or Enumeration.” Essentially, this meant that the federal government could collect revenue from the states according to population, but had to leave the method of collection to them. The federal government was therefore limited in the amount of money it could raise by its own authority … keeping it small and not terribly intrusive … usually.

The 16th Amendment led to the Internal Revenue code, which is incredibly complex, inefficient and abusive, and frequently used by overzealous bureaucrats and politicians to restrain the liberty of American citizens. It was really the first of the Progressive Era amendments and it led to a rapid and unchecked advance in the growth of the federal government.

Repealing the 16th Amendment would force the federal government to examine its spendthrift ways and would return us to the federalism of the federal government because states would now be in control of federal finances. States could decide for themselves how to collect taxes to send to Washington DC, based upon population. So, for example, Alaska might decide not to tax our citizens, but to tax the oil companies instead – which is how we fund state government now. Or we might decide to tax Alaskan citizens’ sales transactions or income to provide for the federal maintenance.

States would once again have a stake in deciding how the federal government spends our money, which would make 50 US governors watchdogs to Congress and the President.

And it would be true to the original intent of the Constitution.

Yes, there is a risk that it might be replaced through amendment with some other national tax, but not if states were careful in their instructions to their delegates. I think most states, especially those west of the Mississippi, would rather stop taking orders from Washington DC and start giving them.

Revising the 15th Amendment   Leave a comment

I’m working my way through the US Constitution’s amendments. The first 10 enumerate natural rights that are unalienable. In other words, the listing there does not grant the rights. It merely acknowledges them and says “government may not infringe upon them”. Except for the 2nd Amendment, few people are seriously talking about repealing any of the Bill of Rights amendments and it is highly unlikely that 38 states could agree to repeal of any of them, including the 2nd Amendment. Therefore, I do not believe that the core principles of the US Constitution would be at risk in a states convention to propose amendments. I’m not saying there’d be no attempt to do, but that the system stacks the odds against making those changes.

The other 17 amendments may need to be reviewed and amended or repealed as necessary by a convention of the states and other amendments may need to be added to correct problems that Congress has refused to address.

I’ve reached the 15th Amendment. What could I possibly have against assuring the right to vote for all? I don’t. I do think that a comprehensive amendment that combines the 15th, 19th, the 23rd and 26th (acknowledging the natural right of all adult citizens to vote) might be something worth considering.

One risk of a convention of the states would be the possible elimination of the Electoral College which would (not might, but would) lead to a tyranny of the majority whereby big cities and large-population states determine ALWAYS who will be president. That is an extremely dangerous situation that our Founders recognized and sought to prevent.

If anything, looking at the red-blue map, the Electoral College should be reformed to reflect regional rather than state population distribution because far too often national politics are dominated by large cities, disenfranchising suburban and rural voters, a situation the majority of our Founders would have opposed.

Clearly, the map to the right shows we have a huge problem when a handful of “blue” regions can dictate the conditions the entire country must live under. We may need to amend the 15th and the clause establishing the Electoral College to reflect the reality of the modern American republic … although the real answer is returning usurped authority to the states so that the federal government lacks the power to tyrannize us.

With government, smaller and closer to the people is always better.

We Don’t Need the 14th Amendment   2 comments

Surely, I’m not going to suggest repeal of the 14th Amendment? I’ve just said, in my analysis of the 13th Amendment that I am completely opposed to all forms of slavery. So I should be in support of the 14th Amendment, right? Actually … not so much.

Let me preface this by saying I am opposed to all forms of government discrimination and of private discrimination where it involves a public service. If you operate a bus company, for example, I think you have to offer transportation to all comers. A private business offering private services has a right to decide which customers to have or not, but the rest of us have a right to boycott that private business if we disagree with their personal stance. That’s market democracy and it works.

So what do I have against the 14th Amendment?

Let’s start with the idea that the federal government did not have the authority to force the states to abolish slavery. Slavery is unchristian and at odds with the Declaration of Independence’s foundational statement that “all men are created equal”, but the Constitution framers saw fit to allow states to retain slavery if they wanted. Extra Constitutional writings support the historical fact that the Constitution would not have been ratified had it attempted to abolish slavery. Delegates who opposed slavery felt that over time the South would let go of slavery as less efficient than wage labor and that future Constitutional amendments would eventually end the institution, but that is not what the Southern delegates felt they were agreeing to.

The Constitution did not give the federal government the authority to abolish slavery in the states or to wage war against its own citizens who were acting in accordance with the Declaration of Independence when they seceded from what they deemed to be a tyrannical union. In essence, the 14th Amendment was imposed unconstitutionally on the Southern states as an act of war. While I agree with what it accomplished, I don’t agree with how it was accomplished. The ends do not justify the means. The principles of liberty and states rights were violated by this amendment and by the war that made it possible. For that reason alone, I think the 14th Amendment needs to be revisited.

It’s also important to realize that the Southern states never ratified this Amendment. They accepted it, shoved down their throats as it were, as a concession of occupation. How is that just in a society that claims to value liberty?

Moreover, the 14th Amendment has been used to justify a great deal of federal abuse of states rights. Abortion until labor begins is the law of the land even though more than 50% of American voters say they are uncomfortable with it. Roe v Wade was decided on the 14th Amendment. Religious freedom has been undermined based on the 14th Amendment (google U.S. v. MacIntosh 1931; Everson v. Board of Education 1947; McCollum v. Board of Education 1948; Torcaso v. Watkins 1961; Engel v. Vitale 1962; Abington School Dist. v. Schempp 1963; Walz v. Tax Commission of City of New York 1970; Lemon v. Kurtzman 1971;  Stone v. Graham 1980; Wallace v. Jaffree 1985; Edwards v. Aguillard 1987; Allegheny County v. Greater Pittsburgh 1989; Lee v. Weisman 1992). State sovereignty is non-existent because of the 14th Amendment (google California Proposition 187; Saenz v. Roe 1999; North Carolina Board of Education v. Swann; Washington v. Seattle School District; U.S. v. Yonkers; Missouri v. Jenkins).

The 14th Amendment has been used to give the federal government authority over every law in every state that relates to life, liberty or property, completely nullifying the principle of enumerated powers and the 10th Amendment protection for state rights.

No, we shouldn’t go back to owning slaves and no liberty-minded American should stand for any attempt in that direction. It’s ridiculous, in the 2nd decade of the 21st century when our president is biracial, to insist that we still need to the 14th amendment to prevent slavery.

We don’t!

But to restore liberty for all Americans (including the descendents of slaves), yes, we need to look at the 14th Amendment, decide if it is congruent with our national values and repeal it and replace it as necessary.

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adventure, art, nature, travel, photography, wildlife - animals, and funny stuff


The Peaceful Revolution Liberate Main Street

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