Archive for the ‘proposed amendments’ Tag

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?

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?

Reestablishing Commerce   Leave a comment

If we do not act to change the trajectory of the United States republic, our system of government will perish and take the good with the bad. We can’t control what will replace it and we may not like what we get. If we continue to be swept along by the current, we’re going to regret our inaction.

An Article V convention to propose amendments to the state legislatures might be a paddle in the current to sweep us in another direction.

There are plenty of proposed amendments to look at. Not all of them sound like a good idea. Mark Levin published a handful of nice-sounding ones. It remains to be seen if these are a good idea in practice, but some look like good ideas in theory.

KrakkenThree of them are definitely designed to remove some of the federal krakken’s teeth, so we might have a hope of regaining our individual liberty and robust economic way of life. It remains to be seen if states will agree these are good ideas, but they’re worth looking at.

Levin suggests an amendment to promote free enterprise by limiting the misinterpretation of the Commerce Clause and shifting the focus on the Department of Commerce. The original purpose of the Commerce Department was to “prevent states from impeding commerce and trade between and among the several states”. It was also meant to keep federal government out of regulating commerce within a state.

Oh, those silly Founders!

According to James Madison in the original Constitutional Convention, commerce was referred to as trade or exchange between foreign nations and the states. It was intended to prevent states from acting more like foreign nations relative to other states with tariffs and other restrictions on trade between the states.  That makes good sense now as it did then, except ….

The vagueness of the clause and its application has allowed for increased federal government intrusion in areas of commerce that would flabbergast the Founders. This amendment would provide some clarity and explicit “guardrails” for the federal government to operate within.

Next is “An Amendment to Protect Private Property” which very simply requires just compensation be made when private property is taken for public use. The ability to own private property is what sets us apart from virtually every other nation in the world.

The government morphed “Eminent Domain” into something that allows the taking of your property then giving it to a private entity (crony capitalists) that will pay more tax than you do. They’ve broadened the meaning of “taking” of property for public good (roads, utilities, and parks) into the taking of private property in order to enrich the public coffers and only reimbursing you for pennies on the dollar.

These three Amendments are designed to remove some of the teeth of the leviathan that is shredding our liberty, freedoms and economic way of life. Keep in mind these amendments proposed by Levin are just suggestions. Participating states will, as a group, take these ideas and change, delete and/or create final amendments on which they can all agree.

If we do not change our trajectory our republic will perish.

Given the current trajectory, that might be a good thing, but if we can change things ….

Consequences of a Broken Congress   Leave a comment

Amending the Constitution to change the structure of the House of Representatives is a complex topic.

The framers of the Constitution envisioned congressional districts that were relatively small (about 60,000 people per each), equivalently sized across the nation in keeping with the one-person-one-vote principle. Federalists #55 and #56 explicitly promised there would be one Representative for every 30,000 inhabitants. Congress became larger as the country grew in population until Congress fixed the total number of Representatives at 435 in 1913. The size of Congress is not regulated in the Constitution, but is an arbitrary number chosen by Congress.

Today, the average district size is approximately 700,000 per Representative and instead of being proportionately sized throughout the United States, some House districts are nearly twice the size of others. This is an egregious violation of the one-person-one-vote principle that comes with adverse consequences.

  • The average tenure of Representatives serving in the 108th Congress (2003-2005) was 10.2 years.
  • Tellingly, of all the Representatives in the 108th Congress who sought reelection to the 109th, over 97% won.
  • Yet Congress has an approval rating of less than 10%.

It would seem that, once elected, Representatives become virtually undefeatable, even if their performance in office is mediocre or incompetent. This is because candidates representing large districts can present different faces to different constituents without getting caught (usually) rather than taking principled stands. The diverse views and values of Americans are not being represented by those elected to the House.

The growth of super-sized districts means that most Representatives spend the last year of their two-year term campaigning for reelection rather than spending time on their primary responsibilities of reading legislation and providing constituent services. Except for a few independently wealthy individuals, election campaigns in super-sized districts require that Representatives solicit considerable sums of money on a nearly continuous basis, creating the appearance (and probably the actuality) of corruption while fostering a dependence on lobbyists and other special interests for campaign funds.

Another, often overlooked, consequence (highlighted in the Netflix series House of Cards) is that the President and Vice-President are indirectly elected via the Electoral College, the size of which is mostly a function of the number of House Representatives. The smaller the Electoral College, the less likely it will reflect the popular vote, which may explain the last four Presidential elections and will become a greater issue with each election in the future.

Citizens are gradually becoming estranged from the federal government. Whether it is because we feel disconnected or because of other cultural issues, we fail to vote at increasingly alarmingly high rates. Low voter turnout creates a political vacuum that is frequently filled by mobilized fringe interest groups which exert an inordinate influence over election outcomes.

The purpose of the federal House was not only to represent the citizenry, but to protect us from the government, but the House of Representatives has devolved into a virtual oligarchy.

What do we do about that?

Congress is Broken   1 comment

Article V turns out to be a huge subject and as I research, I find more and more information. Proposed amendments are a sub-category in themselves that I barely touched on when I did the first series.

Certainly I support returning the Senate to the state legislatures via repeal of the 17th amendment, thereby reducing the power of corporations in selecting that body through the manipulation of voter ignorance. Senators should represent the states.

On the other hand, most of us – including me – really haven’t given due consideration to how to fix the House of Representatives. Except someone has and I’m going to touch on what they have come up with.

As with most of these sorts of organizations, I am not endorsing them whole-heartedly. I find useful information all over the place, but I don’t necessarily agree with everything on any website.

The framers of the Constitution and the Bill of Rights intended that the total population of a single Congressional district should never exceed 50-60,000. Oh, my! Currently the average population size of the districts is nearly 700,000. Proportional, equitable representation has been abandoned!

The bar chart below shows a disturbing trend. From 1790 to 1910, the total number of congressional districts increased every 10 years (with one exception during the Civil War). In 1910, the total number of congressional districts was increased to 435 where it has remained ever since (with a temporary increase to 437 after Alaska and Hawaii became states). Overlaid on the chart is a line graph representing the total population of the United States.

Reps Chart 1

Dividing the total population by the number of representatives calculates the average population per congressional district, which is illustrated in the chart below.

Average Pop Chart 2

In 1804, each Congress person represented approximately 40 thousand people. Today, the average population of congressional districts is nearly 700,000 and increasing. Don Young, Representative from Alaska, has 736,400 constituents. It’s no wonder he is difficult to contact, though he is – I’m told – better than many representatives from other districts.

Given that, is it any wonder that most of us feel like the federal government no longer governs with the consent of the governed?

What Amendments Do We Need?   Leave a comment

When I first did this series, I was frankly bored of the subject by the time I reached this point, so I didn’t really explore the proposed amendments. Mark Levin came out with The Liberty Amendments as I was writing, so it seemed best to just let him take care of that. I started the series, btw, mildly apprehensive of a “constitutional convention” and ended as a supporter of a “convention of the states to propose amendments.” But what amendments?

I don’t believe in panaceas. I don’t think there is a single amendment that is going to fix all our national woes. I’m not even sure that an Article V convention can fix our problems. It may already be too late to save the United States of America. That doesn’t meant that we the people cannot survive and move on …

but that’s a subject for another day.

The following several posts will be new material looking at some of the proposed amendments a convention of the states might look at. I believe such a convention would need to propose a slate of amendments in order for reform to be effective and those amendments would need to be targeted at repealing/modifying the Progressive Era amendments and constraining the federal government more than was done with the original constitution. Some of the suggested amendments out there are … well … probably ill-considered, but there are arguments for and against all of them and it’s worth taking a look at them.

Proposed Amendment Would Enable States to Repeal Federal Law   Leave a comment

I’m running some old opt-eds from the New York Times because Phyllis Schlafly referred to them in her opposition of an Article V convention and I think sometimes we don’t give enough attention to what the “other side” is saying. Most of these op-eds ran during the runup to the Supreme Court decision authorizing the Affordable Care Act to run rough-shod over American economic freedom, which makes them an interesting snap-shot of what the progressives thought about it all. We should know the opposition so that we can argument against them, but also so we can think ahead of them and propose our own course of action before they propose theirs.

For the record, I’m in favor of the amendment discussed and offer it later in my series on Article V. Lela


Proposed Amendment Would Enable States to Repeal Federal Law


The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.

Kenneth T. Cuccinelli II, the attorney general of Virginia, wrote to his counterparts in every state this month, asking them to support a constitutional amendment that would allow the states to vote to overturn acts of Congress.
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Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so. An amendment can also be proposed at a convention called by Congress upon petition by two-thirds of the states.

The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.

Like any constitutional amendment, it faces enormous hurdles: it must be approved by both chambers of Congress — requiring them to agree, in this case, to check their own power — and then by three-quarters of, or 38, state legislatures.

(Yeah, we know this is not wholly true — Lela)

Still, the idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago — but last week, a federal judge agreed with that argument. Now, legal scholars are handicapping which Supreme Court justices will do the same.

The repeal amendment reflects a larger, growing debate about federal power at a time when the public’s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.

Tea Party groups and candidates have pushed for a repeal of the 17th Amendment, which took the power to elect United States senators out of the hands of state legislatures. And potential presidential candidates like Mitt Romney and Sarah Palin have tried to appeal to anger at Washington by talking about the importance of the 10th Amendment, which reserves for states any powers not explicitly granted to the federal government in the Constitution.

“Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives,” Mr. Cantor said this month. “Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care and intrusions into the private sector like the auto bailouts have threatened the very core of the American free market. The repeal amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach and get the government working for the people again, not the other way around.”

Randy E. Barnett, a law professor at Georgetown who helped draft the amendment, argued that it stood a better chance than others that have failed to win ratification. “This is something state legislatures have an interest in pursuing,” he said, “because it helps them fend off federal encroachment and gives them a seat at the table when Congress is proposing what to do.”

Professor Barnett, considered by many scholars to be the intellectual godfather of the argument that the health law is unconstitutional, first proposed the repeal amendment in a column published by in 2009.

Tea Party groups in Virginia contacted him. Virginia’s governor, attorney general and speaker of the House, all Republicans, then expressed their support. The speaker, William J. Howell, joined Professor Barnett in an op-ed article proposing the amendment in The Wall Street Journal in September.

Virginia was a particularly ripe place to start the argument. The attorney general, Kenneth T. Cuccinelli II, was among the first attorneys general to try to overturn the federal health care law, filing a lawsuit minutes after President Obama signed the measure last spring.

Mr. Cuccinelli argued that the federal provision establishing a health insurance mandate was against a law the legislature had recently passed decreeing that no resident could be required to have health insurance. The judge who declared the mandate unconstitutional last week was ruling in that case.

This month, Mr. Cuccinelli wrote to the attorneys general of every state for their support of the repeal amendment.

The measure was introduced in the House by Representative Rob Bishop, Republican of Utah, who was a founder of the Western States Coalition, which advocates states’ rights.

Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence.

“There’s not the slightest chance it would get through Congress” or be ratified by the states, he said. “You can bet the ranch that there are enough state legislators in the large states who will not consider it a good idea to reinforce the power of small parochial rural states in which most Americans do not live.”

Even if it were approved, it would be extremely unlikely to have any practical effect, Professor Levinson said. “Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states,” he said.

Marianne Moran, a lawyer in Florida who runs, said that legislative leaders in Florida, Georgia, Indiana, Iowa, Minnesota, Missouri, Montana, New Jersey, South Carolina, Texas and Utah, as well as Virginia, were backing the amendment.

“Considering we’ve had 12 states get on board in the last two or three months that we’ve been pushing this, I think we’re getting some speed,” she said. “No amendment has ever been ratified without a broad national consensus — it’s an uphill battle — but we’ve done it 27 times as a country, and I think we can get enough states to agree.”

Proponents say their effort is not directed at any one law or set of laws. “Our desire is to have it in place so we can repeal as things come up,” Ms. Moran said. “What we’re trying to do is to draw a line in the sand saying the federal government has gone too far.”

This article has been revised to reflect the following correction:

Correction: December 24, 2010

An article on Monday about a proposed constitutional amendment that would allow a vote of the states to overturn any act of Congress referred incompletely to the methods by which a constitutional amendment can be proposed and sent to the state legislatures for approval. Besides being passed by both houses of Congress, an amendment can also be proposed at a convention called by Congress upon petition by two-thirds of the states. (In either case, the legislatures of three-fourths of the states must approve the amendment.)

Suggested Amendments   Leave a comment

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 two 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 they’re still there. The Constitution doesn’t sunset the applications. We only need two more states 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. Delegates are not bound to the wording of the applications, btw, just the subject.

But it won’t fix anything on its own because an amendments convention 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. The other discussion might not be eligible for ratification, but it needs to be offered for Congress to propose – capping taxation rates. It’s 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 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
  • 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.”

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