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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
You need to study a lot more about the history of the church before trying to school others.
The biggest current flaw in the Constitution is that it in no way constrains Congressional borrowing.
Most proposals to rectify this are called balanced budget amendments and basically, attempt to eliminate borrowing. One of the primary reasons the Constitution was created was to empower Congress to borrow. But no limit was ever placed on borrowing other than electing responsible people. It seems that responsibility has disappeared. Overborrowing is bi-partisan.
The trick is not to stop them from borrowing, but to force them to borrow moderately. This can be done through Constitutional amendment only. We do this by calculating the maximum debt limit under which a member is allowed to be employed in any way by the federal gov’t (that includes, especially, being allowed to run for re-election, but includes all federal employment).
When someone gets elected to Congress, we would add the previous year’s annual budget to the current debt limit and that becomes that member’s personal debt limit. If he or she ever votes to raise the debt limit above that amount (and eliminating the debt limit must be made impossible and would have the effect of triggering the personal debt limit of all who voted for the bill), that member would never be allowed to run for federal office again, nor to serve in any capacity (paid or unpaid) for the federal gov’t. It would be a kind of political suicide.
For example, say the federal gov’t raised the debt limit by 5% of the federal budget every year for 14 years. At the end of the 14th year, the debt limit would have been raised by about the same amount as the entire federal budget in year zero (i.e. the federal budget would have doubled in 14 years). If a member of Congress had voted for every single one of those debt limit rises, he or she would be barred from serving in Congress ever again.
This would work as both a term limit mechanism and a debt limit mechanism.
It would force Congress to get serious about prioritizing spending and eliminating waste.
It would prevent people from continuing to elect profligate borrowers.
It would not require any other branch to enforce it (the amendment should include an enforcement clause).
The formula would not need to change as inflation raises the budget.
Congress could raise the debt limit sky high if an emergency (such as real war) arose. They would just all lose their jobs at the end of their respective terms.
I know a heck of a lot about the history of the church.
But which church were you referring to?
When you say:
It sounds like you don’t believe there should be definitions of what a particular religion is. If you can’t call someone a heretic or an unbeliever, you don’t have a religion, just like if you can’t call someone a foreigner, you don’t have a country. Now, you or I or Jenny-down-the-street might not agree with the definitions that certain people use, but it is human nature to draw lines. You probably have all sorts of lines and borders drawn in your mind. One of them might be between smart people and stupid people. Of course, you’re inside the smart-people group.
Interesting to find a reference to Brutus, that scion of the Jefferson side of the schism with Hamilton. A part of Jefferson’s mentality was that any government required fairly regular revolution to keep it honest, and he was not highly critical of the blood spilled in the French revolution.
This is not a lot different from the normal “the world ends tomorrow unless people do what I want” mantra. The thing about a representative democracy is that you have to accept the results. Sometimes they may not be what you want.
There are, as I recall, 17 exceptions to needing a warrant for a search. So is that particular right no longer part of our lives? No, it is very much so. I would not be surprised to see the 2nd amendment also gain some more constraints. When the 2nd was written, it was written by men who likely believed that the “locals” should possess cannon (that is what the “regulars” were looking for in Concord) and I don’t think even the NRA would argue for that.
Read a biography on John Marshall, and how we saw and developed the Supreme Court. In the famous Marbury v Madison case, he knew that if the government simply ignored the ruling of the court, there was nothing the court could do.
So a large part of the operation of any form of a democratic government requires that there be good and honorable men and women. And as soon as we believe that this is not possible, then we are indeed, finished.
I surely would.
You and your artillery crew crew are welcome to run live fire drills every weekend, although the cannon dealer may require you to first sign their safety brief “Cannon Release Form:”
Or you can build your own from scratch:
La la la la la. The neighbors haven’t noticed, yet. Wait until next Independence Day.
26 USC 5845(g) Antique firearm
The term “antique firearm” means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
The constraint is the amount of black power you may possess without special rules: 50 pounds. Then again, most of these gunners seem to be using 1/2 pound or less per shot, and I’m not sure you would really want to deal with the risks of very hot barrels in recreational shooting.
https://patch.com/wisconsin/greenfield/greenfield-canon-shooter-has-fourth-july-fine-upheld
The second amendment was intended to protect all weapons including modern artillery, fighter jets, and battleships.
The point is that for many centuries, the Catholics believed that the protestants were heretical. Even when I was a youth, I was taught that protestants are not really even christian — especially the versions that did not believe in transubstantiation. Those not accepting the trinity were right out.
So when someone makes some bland statement that they are only referring to non-heretical christian churches, such as we saw above, it begs the question as to who decides what is heretical?
Obviously, it is from the speaker’s/writer’s perspective or the definitional perspective of his denomination or sect. And remember that being “not even Christian” is beyond heresy, so probably I’m not enough in the club to be a heretic.
Skyler,
I couldn’t make sense of this.
I meant that others would use such a policy to inflict a uniform religion.