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Does the Constitution Need Reformation or Restoration?
There is a long-simmering fight on the right between those who urge a convention of the states, under Article V of the Constitution of the United States, and those who urge active resistance at every level of government to nullify unconstitutional actions by every branch of government. The former argue for reformation of the Constitution, while the latter argue for restoration of the Constitution as currently written. Both have merits, both are sincere, and both do not say enough. What follows is a brief outline of some contentions and a suggested common flaw with a common, but very hard, solution.
Reformation:
The convention of states argument is most notably advanced by Mark Levin, in The Liberty Amendments, and by Mark Meckler through the Convention of States Project. Their core claim is the Framers anticipated conditions, under which Congress would be corrupted by at least self-interest and would effectively refuse to put one or more needed amendments before the states for ratification. We certainly see Congress, the presidents, and the courts playing a cynical game of blame avoidance while they collectively distort the legitimate Constitution, as properly amended by the Article V ratification process.
This is why the Supreme Court has become such a political battleground, as the original Anti-federalist position on courts has proven true and the Federalist argument, “least dangerous branch,” has been repeatedly falsified. The Anti-federalist styling himself “Brutus” published a short series of clearly written essays, aimed at people like you and me, concluding:
A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice. But in order to enable them to do this with the greater facility, those whom the people choose at stated periods should have the power in the last resort to determine the sense of the compact. If they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil. But when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not constitutionally accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.
Brutus was right, but could not foresee the other branches engaging in kabuki theater, using the unaccountable courts to their own benefit.
This same game is why the Code of Federal Regulations dwarfs the U.S. Code, which dwarfs the Constitution, effectively creating a fourth branch of government, without authorization of the people through their states ratification process. Naturally, both distortions of the Constitution impinge on our liberty, and both lack carefully constructed checks and balances, ratified into the Constitution through the Article V process.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
The Article V Convention of States process has never been used, while the Congress has acted 19 times to send proposed amendments to the states for ratification. The first time was in the first Congress, when it sent a slate of 12 proposed amendments, ten of which were ratified as the Bill of Rights. Then, Congress acted twice, quickly, to send the 11th and the 12th Amendments to the states, fixing bugs revealed in the early operation of the Constitution.
There was a lull until after the American Civil War, when Congress acted three times in quick succession to send the 13th, 14th, and 15th Amendments for state ratification. After another lull, the early and mid-Twentieth Century saw Congress act 13 times, resulting in 12 amendments being ratified. Convention of states advocates argue the constitutional reform process works and is needed now.
Restoration:
The outlier is the Equal Rights Amendment, defeated by the newly invigorated social conservatives. The face of that movement was Phyllis Schlafly, at the head of the Eagle Forum. Perhaps it was her experience in this fight that caused her to vigorously oppose the convention of states movement as a constitutional con game, too dangerous to unleash. Andy Biggs rose from the Arizona state legislature to the U.S. House of Representatives, despite or with his publication of The Con of the Con-Con.
The position argued from the Eagle Forum and the modern John Birch Society is that the courts and the rest of government will make a mockery of any amendment, continuing their lawless behavior. The real answer, they say, is to do the hard work of growing a citizenry knowledgable of the Constitution and Declaration of Independence. They also argue that a convention will get out of control, or be under the control of globalists from the left and right. They allege bad motives and bad funding sources. The Convention of States Project response is that amendments take such a strong level of support, with 3/4 of all the states agreeing in close order, that courts and other politicians are too frightened to disobey. Yet the infamous Slaughterhouse Cases of 1872 would seem to give the lie to this.
No sooner had the Reconstruction Amendments (13 through 15) been ratified, than the Supreme Court, which had triggered the bloodbath, the unprecedented carnage of the Civil War, by its naked, lawless bigotry in Dred Scott, again acted in naked, lawless bigotry to render the 14th Amendment meaningless. What followed were a consistent series of fraudulent decisions, culminating in 1896 with Plessy v Ferguson‘s cynical “separate but equal.” So, the courts demonstrably do not respect the will of the people, or is it more complicated?
The corrupt bargain settling the 1876 presidential election outcome saw the white northern business interests, and their white Republican congressional creatures, do a dirty deal with white southern agribusiness men. and their white Democratic congressional creatures, to withdraw federal protection of Southern blacks. This had the added benefit to the white Republican Congressional members of effectively, rapidly, removing their new black Republican peers. They were all for freeing the slaves, but not for having to work side-by-side with emancipated leaders.
So, the Supreme Court may not have been in any fear of effective contradiction by the American people when it gutted the three most recent amendments. Senator Mike Lee of Utah agrees that the Constitution must be restored by rebuilding a citizenry that is knowledgable of the written Constitution and Declaration of Independence. He proposes other actions, but the adult education piece is foundational. In this, he overlaps with the Eagle Forum and John Birch Society.
That same informed citizenry would seem to be essential to the success of any convention of states campaign. How else will you get “two-thirds of the several states” to agree to the need, and three-quarters of the states to ratify proposed amendments? But who is informing the citizenry, and how?
The actual history of alcohol prohibition reveals a nearly half-century campaign at the school board and local newspaper level to shape curricula and editorial positions. Eventually, there was a critical mass of temperance propaganda, effectively shaping the thinking of enough men to outlaw alcohol production and sale. Remember that women did not get the right to vote until two years after men outlawed alcohol. Mens’ hearts and minds were shaped for two or three generations, creating the conditions for passage of Prohibition.
Both do not say enough:
Now consider the relentless, unidirectional propaganda transmitted through the education and media systems to Gen X, Millennials, and now Gen Z. Look at changes in attitudes and responses to opinion surveys. Neither the restoration nor the reconstruction arguments articulate effective plans to reverse this wave of current and near-future voter opinion.
Indeed, the left will soon be in a position to call the bluffs of both conservative factions. You say you want to amend the Constitution? What will you do when a new plurality shows up in enough states, ready to “reform” the Bill of Rights to match their sensibilities? When three-fourths of the states ratify hate speech clauses, and define historic Christianity as unprotected bigotry, what will you argue then? It is in the Constitution, so shut up and “support and defend.”
You say resist and restore? What happens when state after state turns on your resistance and your efforts to restore? What happens when they counter your informal efforts to properly teach the Constitution with state-mandated curricula and focussed media propaganda contradicting and silencing your message?
What if they properly amend the Constitution you venerate, to better suit their desires? Remember that Article V is part of the original Constitution, so appealing back does you little good. They can point back and quote Framers anticipating a need for future amendments.
What is to be done?
Any viable solution must include immediate and sustained state-level re-education, counter-messaging at every level. Think “Schoolhouse Rock” or PragerU on steroids across radio, television, and internet platforms. Think every state imposing free speech codes on every corporation in their boundaries, using every tool available to prevent corporations from acting with the left to subvert or change the Constitution, both within the corporation and in the community. Corporations must be told that if they want the steak and sweets of low taxes and friendly regulations, they must first agree to eat the spinach of really respecting, in policy and action, religious conservatives.
Think imposing ideological diversity or neutrality and free speech on the state-funded education system at every level, starting in public school and college administrations. The Goldwater Institute’s campus free speech model legislation is a good start. Hold elected officials responsible for holding regents and administrators accountable.
Yes, we also will need a long term march through the institutions, but the enemy gets a vote and now plays this game from the commanding heights of the institutions. If Texas flips in the next few election cycles, taking the nation with it, Republican governors who bragged of bagging big employers will be to blame. They, and other Republican governors, acted as the servants of the Chamber of Commerce while paying lip service to social conservatives, whose enemies the governors were welcoming in without condition.
Published in Law
Restoration.
Restoration.
Yep. And get rid of those Progressive Amendments from the early Twentieth, such as direct election of Senators. Also, expand the House of Representatives so they don’t represent more than 50,000 people. Sure, that would mean over 6,000 of them, but with modern technology, they can do it all by teleconference and televoting. They don’t need to go to DC and be coöpted by the swamp.
I propose adding a period after the fifth word of the 1st Amendment, and scrapping the rest.
It’s a false dichotomy. Reformation (particularly the Reformation) is usually an attempt at restoration.
This was frustrating about Bush signing McCain-Feingold. He said he thought it was unconstitutional but signed it anyway, expecting the Supreme Court to strike it down. Obviously he isn’t the only offender but that was a big mistake I remember from the last twenty years.
Amending the Constitution is most certainly not “restoring” it to any prior set point of meaning (with the exception of the 21st Amendment). In this context, I believe we are dealing with two different approaches, and possibly different desired end states.
Thank you, for picking up the riff I was laying down. Reformation, capitalized invokes a history, ideas, and images. So does Restoration to Anglophiles.
Don’t quite follow you here. Could you be more specific? Who will immediately start re-educating whom, and how?
Nothing can be done. The Republic is in its lasts years.
I thought the R word you were looking for was Revolution. I also think we’re beyond saving but the Levin idea requires fewer converts. Educating the electorate? C’mon man? That’s not a plan. That’s a fantasy. I believe we’re on a slow, incremental path toward Sharia and Socialism. I won’t see it and I don’t think my children will see it. I think my grandchildren are in for a tough time.
I fear this is true and I am happy that I shall likely not be here to see it, and very sad that my offspring will experience the loss. While I remain I shall do what I can to slow the inevitable decline.
The JBS (of which, standard disclaimer, I’m a member) argues strongly in favor of education. We hold education meetings like the one last month with Alex Newman discussing the threat posed by schools and the need to home-school children. We could do better, and we’re trying, but a substantial part of our member base are legacy membership in their retirement years. This is beginning to change (my wife and I aren’t the only whippersnappers in our chapter) but I worry that our leftist counterparts are so much better at organizing and motivating their base. Just trying to explain how to use an online forum has been a challenge.
This makes me wonder just how effective we can be in educating, say, The Kids These Days into thinking of constitutional issues when some politician wants to pay them off. Take back the institutions? They won’t go quietly, and they won’t stop at bloodshed to keep their positions and influence.
The moral backbone and unifying principle of our Republic from the beginning has been Faith in God. Whether that be the God of the Reformation, or the God of the Pope, the LDS or of us Orthodox, there are a base set of principles on which we can all agree: life is sacred, the meaning of life is transcendental, the Church is where we find healing and guidance. If we want to save our Republic, we should start by getting people back in churches.
Good old Ol’ Rowley.
The Constitution does not need either Reformation or Restoration. The People do.
I cannot accept the counsel of despair, especially when it is the left’s narrative of inevitable victory.
Yes. Embrace the power of and.
The left certainly promotes your view of inevitable victory for them. I reject it.
Education is the key. How can the people support something, even fight for it, when they don’t even know what it is or what it means? We have lost so much in not educating our population about the foundations of this great country.
The problem is that the Legislature refuses to legislate.
I’m not sure how you fix that by amendment.
Uh wut
Chart me a pathway back to a functioning republic that is real.
The Remake of the Lion King, with nothing really new added, just CGI, made more money than Frozen.
I think the last 50 yrs supports my view. I respect your view as more learned than mine and hope for hope. I just don’t see any reason for it.
Restoration Only. That requires that the Judiciary return to an interpretation of the Constitution that reasonably derives from the original intent.
Reformation in this political environment could lead to a rewriting of the Constitution into something totally foreign and different from the original intent of the Framers.
From my point view, the equal protection clause properly applied demands that all reasonable points of view need to be taught in our schools and Universities, exposing the populace to original intent as opposed to the Leftist slop now being taught would go along way towards educating the populace as to how the Constitution and our government was to function as originally envisioned by the Framers.
But if this political environment would lead to 3/4 of the states ratifying ” a rewriting of the Constitution into something totally foreign and different from the original intent of the Framers,” then how do you thing we would cause “the Judiciary [to] return to an interpretation of the Constitution that reasonably derives from the original intent.”
That is the challenge.
I see only one hope of saving our nation.
A constitutional convention will be a disaster; we will end up with a list of rights a la the Canadians or the Euros, with every intersectionalist group getting a mention. Gone will be the clear prose of our Constitution and we will be besot with vague generalities such as a right to health care, a right to feel safe, a right to be whatever gender, etc. Additionally, you can kiss the second amendment goodbye. It would never survive a constitutional convention.
Getting the courts to protect our rights will likewise go nowhere. John Roberts proved that the courts protect federal power over individual freedom. The “checks and balances” of the federal government are nothing more than a cabal formed against state and individual rights.
A civil war will likewise not be helpful. Not only would it be terrifying and deadly, it would not protect our freedoms.
Revolutions only work when an existing power that is recognized by all in some way is able to exert more influence than before. Witness the Magna Carta, which came from the nobles forcing the king to obey the rule of law. Also note our own American Revolution, where state governments remained intact to separate from England. The French Revolution was a disaster, as was the Russian Revolution, because there was no recognized and stable power structure to depend on.
So as I said, there is only one hope. The governors of the states must exert themselves. They must pull a John Marshall and declare the right to interpret law regarding the 9th and 10th Amendments. The only way to reduce the scope of federal power is to use the states to force that limit. State governments are an authority that is stable and recognized, so they are able to succeed without needing to create a power entity from scratch. A majority of the governors need to unite and declare that the federal government may no longer put conditions on money that it returns to the states, which is the largest source of mischief in our system. Building highways is good, but requiring states to have motor voter laws is too far, as one example. The states need to exert themselves or we are doomed to have a federal government that will make the states more and more irrelevant.
I can see no other way that won’t end in disaster and the end, forever, of what remains of our freedoms.
I fully agree that a return of a critical mass of citizens to focus on God, not self, is essential. I also hold that action in the public arena is needed now, or the catacombs will look downright spacious. And I acknowledge that education, really re-education because the public has been horribly mis-educated, will have little effect if empty of an underlying belief system that goes beyond “what’s in it for me” and “you will be like gods.”
The Declaration of Independence and the Constitution were written and affirmed in the context of a population shaped by The Great Awakening.
Yes. And how do governors do this, along with their legislatures, if their state voters is being twisted out from under them, because they invited parlor pink corporations in without condition and did nothing about their public education system, especially their teacher training programs?
They must be bold and simply do it. Of all the methods of correcting our nation, this seems to me the likeliest to work with the least risk to our Constitution as written. That it is a desperate hope is true enough, but I don’t see any other viable path.
Amen. And Conservative and Orthodox synagogues, in my view.
As for the Christians: we should at the same time get Christianity back into the churches. If people return to the pews only to hear Progressivist heresies, we will be no better off.
I suspect that many of my Jewish Ricochet colleagues will agree with that idea, mutatis mutandis.
I respect that at least you were thoughtful enough to recognize that religions have different viewpoints, but you lose points for a couple things.
First, getting people to go to church to save the nation sounds suspiciously like having state religions. I’ll grant that this is probably not what you intend, but others would gladly go in that direction if given a chance.
More importantly, religions have many different ideologies, and hubris appears when someone says that this or that religion is heretical. That is, you’re being generous to “christians” while claiming to define what being a christian means. I don’t think it’s wise to tell people what their religion is, and that’s pretty much the intent of the first amendment. The puritans, who by any measure were extremists and well out of the normal conventions in their beliefs would have been regarded by your historical counterpart as heretical.