The Liberty Amendments: Restoring the American Republic (18 page)

Moreover, the proposed amendment creates an expanded legal basis for private property owners to assert a constitutionally acknowledged and protected right. The notion that a taking must be physical, total, or near total to trigger a “just compensation” defies the Framers’ intent and the Fifth Amendment’s purpose. It also renders moot the convoluted precedents and ad hoc tests promulgated by the Supreme Court, and instead establishes a more stable and predictable legal environment for property owners and users.

Finally, the proposed amendment is not limited to takings by the federal government. It applies to all levels of government. While I acknowledge that the state legislatures themselves will undoubtedly determine the scope of this proposed amendment, or one similar in purpose, if and when they decide to appoint delegates to attend a convention, I would encourage them to control their own abuses of state citizens. When an individual’s property
is diminished or devalued by government action, the individual does not much care which level of government is responsible for violating his property rights. After all, the right to own property and use it was so important that
the states
themselves insisted on making the protection unambiguous by incorporating the Takings Clause in the Fifth Amendment.

SECTION 1: The State Legislatures, whenever two-thirds shall deem it necessary, may adopt Amendments to the Constitution.

SECTION 2: Each State Legislature adopting said Amendments must adopt Amendments identical in subject and wording to the other State Legislatures.

SECTION 3: A six-year time limit is placed on the adoption of an Amendment, starting from the date said Amendment is adopted by the first State Legislature. Each State Legislature adopting said Amendment shall provide an exact copy of the adopted Amendment, along with an affidavit signed and dated by the Speaker of the State Legislature, to the Archivist of the United States within fifteen calendar days of its adoption.

SECTION 4: Upon adoption of an Amendment, a State Legislature may not rescind the Amendment or modify it during the six-year period in which the Amendment is under consideration by the several States’ Legislatures.

A
S DISCUSSED EARLIER,
A
RTICLE
V of the Constitution sets forth the two processes for amending the Constitution:

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. . . .
¹

As the text and history make clear, the amendment processes are difficult. A supermajority of two-thirds of the members of both houses of Congress is required to propose amendments, or two-thirds of the state legislatures are required to call for a convention to amend the Constitution—which means thirty-four states. Moreover, three-fourths of the states—or thirty-eight states—must ratify the proposed amendments either by votes of the state legislatures or state conventions for them to be incorporated into the Constitution.

The level of complexity in the amendment processes was intentional. The Framers envisioned a clear and specific purpose for
the system of government they established. The Constitution was not meant to be a detailed list of laws and edicts to micromanage people’s behavior. It was not meant to change with factional or majoritarian impulses. And it was not meant to serve the political expedients of a class of governing masterminds and their fanatical followers. The Constitution’s authors intended it to serve as a steady, reliable, and not easily altered apparatus of governance built upon “unalienable” rights by which a huge, diverse, and vigorous society could successfully govern itself. The amendment processes were intended to elevate any matter addressed in a proposed amendment beyond the realm of day-to-day political issues.

In the 226 years since the 1787 Convention, there have been only twenty-seven amendments added to the Constitution, including the first ten amendments—the Bill of Rights. Those were ratified simultaneously on December 15, 1791. The small number of successful amendments, however, is not due to a lack of effort. Approximately 11,539 proposed amendments to the Constitution have been introduced in both houses of Congress between 1789 and January 2, 2013.
²

However, as discussed at length in preceding chapters, we live in a post-constitutional period due to the Progressive movement’s successful political counterrevolution. The Statists have constructed an all-powerful centralized federal government, unleashing endless social experiments in pursuit of utopian designs. The federal branches have used judicial review, congressional delegation, broad abuses of the Commerce and Takings clauses, and the power of the purse (taxing, spending, and borrowing), among other things, to commandeer the sovereignty of the states and the citizenry. Indeed, the states and the citizenry are now consumed
by an elephantine array of federal laws, regulations, and rulings, which torment, coerce, obstruct, and sabotage the individual’s autonomy. The states that gave the federal government life now live mostly at its behest.

In 1908, Woodrow Wilson made clear the plans he and others set in motion when he declared, “No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle.”
³
Wilson added, “Living political constitutions must be Darwinian in structure and practice,” meaning the federal government must be in a constant state of motion and evolution.
⁴
Consequently, the individual is without independent, God-given natural rights, which form the basis for America’s founding. The Constitution’s text and the Framers’ intent are of no consequence—unless, of course, they can be said to justify if not compel the republic’s self-mutilation. But Wilson conflates the nature of a healthy and dynamic civil society, where individuals are mostly free to pursue their interests, with what was to be the character of the federal government—a stable, predictable, and just governing institution, the purpose of which was the civil society’s conservation. Wilson’s prescription, and that of the Statists, empowers the federal government to extend its authority in ways large and small, devouring the very civil society it was established to safeguard. Unmoored from the Constitution, federal power becomes more centralized and concentrated, and increasingly difficult to define or proscribe.

The Tenth Amendment underscores generally and simply the division of authority between the federal and state governments:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
⁵

The Constitution would not have been ratified had the Federalists refused to agree to the inclusion of this explicit recognition of state sovereignty, carried over from the Articles of Confederation, as part of a series of amendments—which would be adopted when the First Congress convened. It is a declaration of the indispensable role of the states in American life, which is loosely referred to as federalism.

The most successful rhetorical attack on federalism today involves past slavery and segregation. As I explained in
Liberty and Tyranny
, it is more complex than the Statists recount. “It is a misreading of history to singularly condemn federalism for slavery. While there is no debating or excusing that southern states sanctioned slavery, at times they did so with the help of the federal government. Moreover, there is also no questioning that other states, mostly in the North, instituted policies and laws not only prohibiting slavery within their own borders, but defying efforts by southern states
and
the federal government to enforce slavery in the South.”
⁶
For example, “prior to the Civil War, and at the behest of the southern states, in 1793 and 1850 the federal Fugitive Slave Laws were enacted to force recalcitrant northern states to return escaped slaves to their southern owners. Many northern states resisted by passing personal liberty laws, which created legal obstacles to the deportation of slaves back to the South. In the 1842
Prigg v. Pennsylvania
case, the federal Supreme Court ruled these laws unconstitutional, arguing that they sought to preempt federal 1aw, although it added that the northern states were not
required to affirmatively assist the southern state that sought the return of the escaped slaves. In 1857, the Court ruled in
Dred Scott v. Sandford
that no slaves or descendants of slaves could be U.S. citizens, and that Congress’s Missouri Compromise of 1820, which prohibited slavery in much of the new territories, was unconstitutional, for it denied slave owners their personal property rights. . . . [N]ot until 1862 did the federal government abolish slavery in the District of Columbia, which was wholly controlled by federal authorities. . . . ”
⁷

The nation could not forever tolerate slavery. And it did not. Nonetheless, slavery was a contentious issue not only between the states, but also within the states—including in towns and counties in southern states. It was contentious not only between the federal government and the states, but within the federal government—as between Congress and the president, and between the elected branches and the Supreme Court. The same can be said of post–Civil War segregation, which was opposed by many states and practiced by others—and upheld in 1896 by the
federal
Supreme Court in
Plessy v. Ferguson
.
⁸

Indeed, President Wilson, a leading Progressive and harsh critic of the Constitution and federalism, was a racist and segregationist.
Reason
magazine’s Charles Paul Freund wrote that “Wilson allowed various officials to segregate the toilets, cafeterias, and work areas of their departments. One justification involved health: White government workers had to be protected from contagious diseases, especially venereal diseases, that racists imagined were being spread by blacks. In extreme cases, federal officials built separate structures to house black workers. Most black diplomats were replaced by whites; numerous black federal officials in
the South were removed from their posts; the local Washington police force and fire department stopped hiring blacks. Wilson’s own view, as he expressed it to intimates, was that federal segregation was an act of kindness. . . . ”
⁹

It is not possible to conduct a fulsome history of slavery and segregation in these pages. It must be underscored, however, that the oppression of African-Americans could never be compatible with a civil society and the principles set forth in the Declaration of Independence, as Abraham Lincoln explained. In 1858, during his campaign for the Senate, Lincoln declared: “In [the Founders’] enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows. They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. They erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages. Wise statesman as they were, they knew the tendency of prosperity to breed tyrants, and so they established these great self-evident truths, that when in the distant future some man, some faction, some interest, should set up the doctrine that none but rich men, or none but white men, were entitled to life, liberty and the pursuit of happiness, their posterity might look up again to the Declaration of Independence and take courage to renew the battle which their fathers began—so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land; so that no man would hereafter dare to limit and circumscribe the great principles on which the temple of liberty was being built. . . . ”
¹⁰

This brief and incomplete detour into this subject is necessitated by the anticipated hyperbole that frequently accompanies present-day discussions about, and efforts to, unravel and decentralize the federal Leviathan and reestablish federalism and republican governance—which is intended to uphold the sovereignty and dignity of the individual regardless of race, ethnicity, gender, age, ancestry, or station. In this regard, there is no denying that some states today are more amenable to personal and economic liberty than others. For example, the libertarian Mercatus Center at George Mason University measures “state and local government intervention across a wide range of public policies, from income taxation to gun control, from homeschooling regulation to drug policy.” Its rankings “explicitly ground our conception of freedom on an individual-rights framework. In our view, individuals should be allowed to dispose of their lives, liberties, and properties as they see fit, as long as they do not infringe on the rights of others.” For 2012, it ranked North Dakota, South Dakota, Tennessee, New Hampshire, and Oklahoma as the freest states, and New York, California, New Jersey, Hawaii, and Rhode Island at the bottom of the list.
¹¹

The struggle today, however, is not about the acknowledged burdens of any particular state, but between the continuing ascendency of Statist utopianism and restoring the governing principles of the American Republic. It should be understood that this proposed amendment is not intended as a reflection on the infallibility of state governments and their officials. The history of man is a history of human imperfection. In fact, the reason the Framers established checks, balances, enumerations, and divisions of power in the Constitution is that they understood, by knowledge
and experience, that a relative handful of imperfect human beings exercising unrestrained authority over society would result in tyranny. But individuals can escape the burdens of a given state, for mobility is among the most important characteristics of federalism, as demonstrated by population growth and decreases in respective states. There is no escaping the reach of the federal government, however, unless the individual makes the difficult and wrenching decision to give up on the country altogether and leave for other shores.