How to save the Republic: We use the Constitution

Our Constitutional Republic is broken and has been for the past 100 years. The 18^th and 19^th Centuries saw American Politics working in essence the way that the Framer’s had intended. It is worth noting that it was during this time that we saw the rise of American exceptionalism on full display for the world to see. In the first 130 years of the drafting of the Constitution, it was amended fifteen times. The first ten amendments became the iconic “Bill of Rights” that were the first order of business of the first Congress. Led by the first Speaker of the House, and Father of the Constitution, James Madison made concessions to the Anti-Federalists who opposed the Constitution initially, but who supported it in the State Ratification committees with the proviso that “a bill of rights be adopted”. Staying true to his word, what would become the Bill of Rights was passed by Congress, and ratified by the States in the process that is outlined in Article V of the Constitution. A decade or so later, the 11^th Amendment made it impossible to sue States in Federal Court, and the 12^th Amendment changed the way that the Vice President of the United States was elected.

The Constitution remained untouched until 1865 when in the midst of the Civil War, the Congress passed the 13^th Amendment ending the evil institution of Slavery. Rapidly following the Civil War, the 14^th Amendment and the 15^th Amendment were added giving citizenship rights to former slaves and voting rights to black men. Then in the first decade of the 20^th Century, Progressives from both the Republican Party and Democratic Party began to dramatically change how our republic was structured. They rammed through the 16^th Amendment (direct income tax on the citizens) and the 17^th Amendment (direct election of Senators). These two amendments have broken our Constitution and destroyed Federalism. We now have an all too powerful Federal government with no ability of the States to act as a check or balance against that power.

And it has shown: the staggering growth of government since these two amendments have been ratified has led to what popular radio show host Mark Levin describes as the Federal Leviathan, a nod to Thomas Hobbes treatise on government. A leviathan is a mythological dragon like creature, enormous in is size and scale, and one that “gobbles up” everything in its path. This concept can be applied to the growth of government through the Bureaucratic wing, or the Deep State, or as I like to call it, the 4^th (unelected and largely unaccountable) Branch of Government.

The power wielded by the 4^th Branch has eclipsed the delicate checks and balances that has the Constitutional order of the other 3 Branches pitted against each other. Pandora’s box has been opened, and there is no way to get troubles back in. The Government is not going to offer any Constitutional Amendments to set things right again. So, what do we do? Do we capitulate and accept our fate? Do we throw off the Constitution in bloody revolution? Certainly not.

On September 15^th, two days before the close of the Constitutional Convention, delegate from Virginia, George Mason pointed out that the way that the Constitution was written at that moment, only allowed the Federal Government the ability to amend the Constitution. What if the Federal government were to become a despotic tyranny? Would they have the principles needed to right themselves? The silence on the floor was deafening.

What Colonel Mason saw from his vantage point in his chair at Independence Hall in September of 1787 was exactly what heretofore has transpired: ALL 27 Amendments to the Constitution have emerged only from Congress itself. A method by which the States and the People could also amend the Constitution was needed. Gouverner Morris and Elbridge Gerry made a motion to amend the language in Article V to read as follows:

Article V

“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 motion passed according to Madison’s notes nem. Con. Latin meaning: without objection. Brilliantly the framers recognized that by adding the second clause of Article V, the United States could avoid Civil War, and violent Revolution through this clause, proving once and for all the maxim “the pen is mightier than the sword”.

Now is the time to enact Article V legislation across the Nation! If 34 States were to pass such legislation in their own States “Congress Shall” (emphasis added) call a Convention of States, meaning that they must. It is also important to note that no Federal government employee shall be a delegate to that body, meaning that the Federal government will only be involved in calling the convention. Any amendment that were to emerge from that convention will follow the same process that the 27 other amendments to the constitution follow, going to the several States, and needing ¾ of them to ratify.

This author was fortunate enough to recently sit down with the President of Convention of States Action Mr. Mark Meckler, who was the guest speaker of the North Shore Republican Women in Willis. Impolite Company would like to personally thank the North Shore Republican Women for the gracious invite, and Mr. Meckler for setting aside a few minutes to talk. Here is what he had to say:

Scott: Ok, Mark thanks so much for being here!

Mark: Good to be with you.

Scott: How many States are we currently at in order to get the Convention of States rolling?

Mark: So, we have 19 so far and it takes 34 to call a convention, and we’re halfway in North Carolina, so call it 19 and a half. We’ve passed the House and are pending in the Senate (in NC) right now. Kansas also passed legislation last year, but there’s a question about whether they need a super majority; that is being litigated right now, so in reality, I’d say we are pretty close to 21 States, but we are officially at 19.

Scott: You recently held a mock convention last year of what a Convention of States would look like. How did that work out?

Mark: So, we did a simulated convention in Williamsburg, Virginia, a great place, the birthplace of America in a lot of respects. It was phenomenal! It was two and half days long. We brought in legislators from all over the country. Of course, it was only two and half days, so it wasn’t a full convention. I think the most interesting thing to me was the level of debate, how intense it was. Most of the delegates were brought in, they were our connections, so they tended to be Conservative Republicans. So, you would think that they would all get along, however it was really intense! They argued really intensely, very passionately, different opinions on balancing the budget, and term limits, whether we need them, how long they should be etc… So I would say I was surprised by the level of that intensity, but in the end what you see is great Statesmen, and Stateswomen come together and  they proposed a bunch of amendments.

Scott: So if you could wave a magic wand and get amendments into the Constitution, what would your Top 5 amendments that you would like to see come out of a Convention of States in order to Save America?

Mark: Sure. And I think that these are not necessarily realistic ones, because I think some of these might be a stretch…but I think my number one would be a repeal of the 17^th Amendment.

Scott: That would be mine too!

Mark: Alright! Well, o, the 17^th Amendment is the direct election of Senators, and the way that Senators used to be elected was through…

Mark and Scott: The State Legislature!

Mark: Yes! That’s right, the State Legislature would appoint the Senator, and I think that gives a great balance between State and Federal Power. Right now Senators are really beholden to the Federal Government and not their States, and I think that’s a bad thing. So I would repeal that (17^th Amendment) so that State Legislators appoint Senators.

Scott: I think that the repeal of the 17^th Amendment is so important because that is the literal mechanism that destroyed Federalism…

Mark: I agree with that…

Scott: Your Senators are not there to represent you. They’re there to represent the State. I would love the idea that you see when you go back to something like the Second Continental Congress as an example, and you have people like Ben Franklin who is just itching to vote for America’s Independence, but when the first couple votes come up that are heading that way, Franklin votes against them. He had to vote that way because he was responsible to the Pennsylvania Legislature to vote how they instructed him to. So you can have an amendment that replaces the 17^th Amendment that does something similar, I think that would be a really good thing. Could you imagine if you had joint sessions of your State House and State Senate to send instructions to the US Senate on how to vote on a treaty, or a judicial nominee, or Cabinet member?

Mark: Yeah, and the reason that I think this would be a little bit difficult is that it can be presented as though we’re trying to take people’s right to vote away. So, I had a great suggestion from a Democratic State Legislator in Nebraska which said to me, “So the way we get this done is, instead of saying that the Legislature appoints, have the people still vote, but the Legislature gets the right of recall. So, I think this would be interesting because you get to say to people, ok your Senator goes to DC. They get captured by the Swamp; your State Legislature gets the right to recall these people. So, I think that would be a good compromise, and I think that would be my number one pick.

Scott: I love that idea.

Mark: Number 2 for me would be dealing with the Commerce Clause. Most people don’t realize  the Commerce Clause, it’s a very short clause of the Constitution, It says that the Federal Government has the right to regulate interstate commerce. It was a very limited power given to the Federal government to intervene between disputes between the States, specifically over tariffs.

Scott: I think it was Justice Black, an FDR appointed Supreme Court Justice in the 1930s that…

Mark: Yes! That is correct. So this is the case of Wickard V Filburn is the case you’re referring to, a massive expanse of Federal power says that the government can pretty much regulate anything, anytime, and call it “Commerce Clause”. So if we can limit the Commerce Clause to what it was supposed to be, or something close. You would get rid of the authority of about 40%-50% of all federal agencies, so that’s my number 2.

Mark: Number 3 is, and a lot of people don’t talk about this, but I would love to get rid of the reapportionment act of 1913. The reapportionment act of 1913 fixed the number of members of the United States House of Representatives to 435 members. You ever wonder why 435? It’s a weird number, there are 50 states, and only 435 people. The reason is that in 1913 Congress just said, “that’s enough”. We used to reapportion every ten years with the census, if we follow the original formula we would have something like 7,000 members of the House. I have people on the left say “well if you did that, you would never get anything done!”.

Scott: Sounds Great!

Mark: Well, the reality is the Framers thought of the House as rancorous and difficult where they couldn’t get stuff done, it would be very difficult to get stuff out of there, and so that would take us back to that, and those things I just described would help to restore what is actually now a non-representative federal government. So those are my top 3.

Mark: Now if I had to go to 5, I’d say some form of a balanced budget, but a balanced budget alone would be bad. It would place a mandate on the States to force the States to pay for stuff…

Scott: Right, and they would just raise taxes through the roof…

Mark: Exactly, and so we need things like spending caps, and tax limitations, and the prevention of unfunded mandates in addition to the balanced budget.

Scott: I like Milton Friedman’s way of doing it.

Mark: Yeah, and then finally I would say, one that people don’t talk about much, would be a single subject rule. One of the things that Congress does that I think is really unfair to the members is that you’ll get a bill onto the floor, and then they’ll tack a whole bunch ofhorrible amendments on it, and you’re a good man or woman in Congress, and you’ve worked really hard to get say a water project in your district, Congress is about to vote for it, and Congress adds something like the Obama Library. Meanwhile you’re like I don’t want to vote for it, but if I want my water project, I gotta vote for the Obama Library, and so what we should do is break it apart. Most States do this, they call it Anti-Law ruling bills, one subject per bill, this way you don’t get those 1,000 page omnibus bills, and I think I would tie into that a minimum of 72 hours to review, page limits, things like that.