The Next Move: Using the Constitution to Save the Constitution
* This is the first of a three-part series of articles in which I lay out the case in favor of an Article V Convention of States and propose seven amendments to be considered at a potential convention.
Well, there you have it. In one of the greatest political upsets in American history, Donald Trump has been elected the 45th President of the United States. Alongside a Republican House and Republican Senate this has the potential to lead to a lot of good policy for the country; slashing taxes, slashing regulations, repealing Obamacare and Dodd-Frank, rescinding the Iran Nuclear deal, unleashing the energy renaissance, appointing Originalist jurists to the Supreme Court, repealing a bevy of President Obama’s unconstitutional executive orders, confronting and ending the multitude of culture wars unleashed by the left, and securing the border and enforcing our immigration laws. There will be no excuses now for Donald Trump and the GOP not to take aggressive action reversing course and pursuing these policies.
That being said, we as constitutionalists cannot forget some of the more systematic issues we still face. We must acknowledge that our Constitution has been slowly eroded over the course of the past 100 years, with increasing intensity over the past 8 years. The best a Trump presidency will do is provide a brief 8 year respite, as President Reagan did, to our long, slow march towards Statism. That is not to say we should not care that he has won the Presidency, or to say that many great things cannot be accomplished in a Trump administration, but rather that we must do something more, something beyond just electing conservatives and Republicans to national office.
Conservatives gave the Republicans control of the entire government from 2000-2006. What do we have to show for it? The expansion of the federal government in almost every respect. Medicare part D. Expanding the Department of Education through No Child Left Behind. $4 trillion dollars in national debt. TARP and the auto bailouts where George W. Bush abandoned “the free market to save the free market.” Yeah, I don’t get that either.
In response to voter anger at the Republicans exploding the size of government and the election of a man who wished to fundamentally transform America, the Tea Party rose up to confront a bi-partisan oligarchy that had exceeded its’ powers granted in the Constitution. Six years later, we have nothing to show for it. The Constitution is still being eroded, the debt is still exploding, separation of powers continues to be undermined and many so-called ‘tea party’ politicians have turned and been absorbed into the culture of Washington DC. The few who haven’t are outnumbered, outgunned, and always lose carrying the banner of conservatism as a result. In short, we must stop solely relying on Washington to solve our problems.
We must instead turn to the Constitution to save the Constitution. We must turn to our State Legislators. We must turn to Article V of the Constitution.
Over the past 100 years our Constitution has slowly but surely been eroded as the federal government has seized power that it does not rightfully have, issued regulations from a 4th branch of government the framers could not have comprehended, and jeopardized the fiscal and economic future of this nation with irresponsible and unsustainable taxing and spending practices. In recent years, the speed and intensity with which federal officials have abandoned our Constitutional framework has made it self-evident that our only recourse is to turn to the Constitution and look to the states in a true Federalist fashion to bring America back from the brink. Although the potential exists for some good policy outcomes in a Trump administration, ultimately, the federal government will not be our salvation.
Article V of the Constitution provides two routes for the constitution to be amended;
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 first method outlined in Article V, in which two-thirds of both houses of Congress vote to approve an amendment and send it to the states for ratification (¾ of states must ratify), has been used all 27 times in our history to amend the Constitution. The second method, a Convention of States where the federal government is by-passed, has yet to materialize.
The idea of a Convention of States provision being inserted into Article V was first presented by Governor Edmund Randolph of Virginia as part of the Virginia plan drafted by James Madison at the Constitutional Convention in Philadelphia. However, it was George Mason of Virginia—who had drafted Virginia’s Declaration of Rights—who forcefully advocated for the importance of the proposal,
…Amendments therefore will be necessary, and it will be better to provide for them, in any easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the national legislature, because they may Abuse their power, and refuse their consent on that very account.
It is my purpose with these series of articles to raise awareness and support for a Convention of States which will encourage state representatives across the country to take action with the purpose of reigning in the excess powers of the federal government and restoring the rightful role of the states in our governing process.
This past summer, I had the honor of interning with NJ State Senator Steve Oroho where I lobbied him to support SCR42 (a resolution for NJ to join a Convention of States). To convince him to become a co-signer of the legislation, I had proposed seven amendments that could be considered at the convention. Those same amendments that I will propose here have numerous sources. Some come courtesy of Mark Levin’s book, “The Liberty Amendments”, some come from Texas Governor Greg Abbott’s ‘Texas plan’ address in which he came out in favor of using Article V to rein in the Federal government. Some of my proposals are similar to what Levin or Abbott have proposed but are tweaked in some ways and some are proposals that I have thought over and come up with on my own. All are intended to to reassert Constitutional governance.
An Amendment to Establish Term Limits for Members of Congress:
Section 1: No person may serve more than twelve years as a member of congress, whether such service is exclusively in the House or the Senate or combined in both houses.
Section 2: Upon ratification of this amendment, any incumbent member of Congress whose term exceeds the twelve year limit shall complete the current term but will be ineligible for reelection.
- The framers meant for our representatives to be citizen legislatures, that is to say, congress was to be a revolving door of private citizens moving in and out of government service and living the effects of the legislation they pass.
- In 1850, the average turnover rate in the house was 50%; many representatives simply did not seek reelection. It wasn’t until 1901 that the average number of terms served by a representative was two terms. Today, the overwhelming numbers of representatives seek reelection and the turnover rate is very low. In 2010, a year known as an outsider insurgency led by the grassroots Tea Party movement, 85% of house incumbents in both parties were re-elected. In the senate that number was 84%.
- This amendment would end the life-long, career politician, bring us back to a tradition of citizen legislatures and produce better legislation as representatives would have to live under the laws they pass.
An Amendment to Establish Term Limits for Supreme Court Justices and a State Legislative Override:
Section 1: No person may serve as a Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.
Section 2: Upon ratification of this amendment, Congress will organize the justices of the Supreme Court into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the first class will expire at the end of the fourth year. The terms for the justices of the second class will expire at the end of the eighth year and the third class at the end of the twelfth year.
Section 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of the majority of the senate, shall serve out the remainder of the term. Justices who fill a vacancy for longer than one third of the unexpired term may not be renominated for a full term.
Section 4: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion issued by the Supreme Court. The States’ override shall not be subjected to litigation and must be exercised within 24 months of the Supreme Court's’ majority opinion.
Section 5: Upon a two-thirds supermajority vote of both the House and the Senate, the Congress may override a majority opinion issued by the Supreme Court. The Congressional override shall not be subjected to litigation and must be exercised within 24 months of the Supreme Court's majority opinion.
- Article 3 of the Constitution was the shortest of the first three articles because the courts were thought to be the least threatening branch of government to liberty because they would have no legislative or executive powers. The purpose of the judiciary was to adjudicate “cases and controversies” that arose under federal criminal and civil law. The independent judiciary, alongside a powerful legislature would quell a president’s ambitions. In Federalist 78, Alexander Hamilton wrote,
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgement…the judiciary is beyond comparison the weakest of the three departments of power.
- Today, Congress is the weakest of the three branches with the courts, particularly the Supreme Court, becoming an unelected super-legislature, simultaneously rubber stamping executive overreaches. Each June we sit on the edge of our seat to hear the majority opinion of five unelected lawyers and with that decision society is transformed and we are to accept whatever they rule as the law of the land with no recourse.
- This amendment acknowledges the political nature of what the court has become and addresses it with term limits and prevents one left-wing president from appointing 3-4 lawless, post-constitutional judges to a lifetime position and permanently changing society. In addition, this amendment would give the state's recourse against the Supreme Court by allowing for a legislative override by three-fifths of the state legislatures acting within 24 months of a majority opinion.
- This amendment also gives Congress the ability to address Supreme Court decisions it deems to be lawless, improper, and unconstitutional. Following the ruling in Obergefell v. Hodges, which unconstitutionally legalized gay marriage; many representatives, particularly Republicans, voiced opposition to the ruling but stated they had no recourse to legally rebuke the decision. Whether or not that is actually true can be debated, but section 5 of this amendment makes it clear as can be that the Legislative branch does have recourse to address the Supreme Court stepping beyond its’ authority.
In next week’s post I will continue this series of post-election articles promoting an Article V Convention of States as the next move for conservatives to advance our agenda in addition to policy reforms we can push for in a Trump administration. Next week I will propose a balanced budget amendment, an amendment to reign in the federal bureaucracy, and an amendment to restore the Senate to its original purpose.
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