The Liberty Amendments: Restoring the American Republic (2 page)

The illimitable regulatory activity, with which the federal government torments, harasses, and coerces the individual’s private and economic behavior, is the progeny of a colossal federal edifice with inexhaustible energy for societal manipulation and change. In order to satisfy its gluttonous appetite for programmatic schemes, the federal government not only hurriedly digests the Treasury’s annual revenue, funded with confiscatory taxes on a diminishing number of productive citizens, but desserts on the wealth not yet created by generations not yet born with unconstrained indebtedness. And what havoc has this wrought.

The federal government consumes nearly 25 percent of all goods and services produced each year by the American people.
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Yearly deficits routinely exceed $1 trillion.
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The federal government has incurred a fiscal operating debt of more than $17 trillion, far exceeding the total value of the annual economic wealth created by the American people, which is expected to reach about $26 trillion in a decade.
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It has accumulated unfunded liabilities for entitlement programs exceeding $90 trillion, which is growing at $4.6–6.9 trillion a year.
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There is not enough money on the planet to make good on the federal government’s financial obligations. Hence, the Federal Reserve Board has swung into action with multiple versions of “quantitative easing,” which is nothing more than the federal government monetizing its own debt—or buying its own debt—
with a combination of borrowing, issuing itself credit, and printing money amounting to trillions of dollars.
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Of course, this has the eventual effect of devaluing the currency, fueling significant inflation or deflation, and destabilizing the economy at some future point.

But like the laws of physics, there is no escaping the laws of economics. As these fiscal and monetary malpractices escalate, for there is no end in sight, the federal government will turn increasingly reckless and demanding, taking an even harder line against the individual’s accumulation of wealth and retention of private property. For example, when the federal income tax was instituted one hundred years ago, the top individual income tax rate was 7 percent. Today the top rate is about 40 percent, with proposals to push it to nearly 50 percent. There is also serious talk from the governing elite about instituting a national value-added tax (VAT) on top of existing federal taxes,
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which is a form of sales tax, and divesting citizens of their 401(k) private pension plans.
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Even the rapaciousness of these policies will not be enough to fend off the severe and widespread misery unleashed from years of profligacy. Smaller nations such as Cyprus, Spain, and Greece provide a window into the future, as their borrowing has reached its limit. Moreover, unable to print money, their day of reckoning is either looming or arrived. Therefore, bank accounts, other investments, and wealth generally are subject to governmental impoundment, sequester, and theft. The individual’s liberty, inextricably linked to his private property, is submerged in the quicksand of a government that is aggregating authority and imploding simultaneously.

What, then, is the answer? Again, Tocqueville offers guidance. Looking back at the Constitutional Convention some fifty years afterward, he observed that “it is new in history of society to see
a great people turn a calm and scrutinizing eye upon itself when apprised by the legislature that the wheels of its government are stopped, to see it carefully examine the extent of the evil, and patiently wait two whole years until a remedy is discovered, to which it voluntarily submitted without its costing a tear or a drop of blood from mankind.”
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It is asking too much of today’s governing masterminds and their fanatical adherents to reform the product of their own fatuity—that is, the continuing disassembly of the Constitution and society. After all, despite one credible source after another, both within and outside the federal government, ringing alarm bells about the nation’s hazardous track—describing it as unsustainable, desperate, and immoral—they are blinded to reason, experience, and knowledge by their political DNA and ideological invincibility and therefore are intransigent to effective ameliorative steps. They long ago renounced by word and action their adherence to the Constitution’s confinements since the Statists’ utopia and the Framers’ Constitution cannot coexist.

However, it is not asking too much of “a great people [to] turn a calm and scrutinizing eye upon itself” and rally to their own salvation. It is time to return to self-government, where the people are sovereign and not subjects and can reclaim some control over their future rather than accept as inevitable a dismal fate. Unlike the radicalism of the governing masterminds, who self-servingly oversee a century-old, perpetual counterrevolution against the American dawn, the people must have as their goal the reestablishment of the founding principles and the restoration of constitutional republicanism, thereby nurturing the individual and preserving the civil society. This requires, first, an acknowledgment of the federal government’s unmooring from its
constitutional foundation; second, an acceptance that the condition is urgent and, if untreated, will ultimately be the death knell of the American Republic; third, the wisdom to rebalance the government in a way that is without novelty and true to the Framers’ original purpose; and, fourth, the courage to confront—intellectually and politically—the Statists’ stubborn grip on power.

There is a path forward but it requires an enlightened look back at our founding. And what we find is that the Framers rightly insisted on preserving the prominent governing role of the state legislatures as a crucial mechanism to containing the power of the proposed new federal government. In fact, other than the limited, specified powers granted to the federal government, the states retained for themselves plenary governing authority. The debates during the Constitutional Convention and the state ratification conventions are unequivocal in this regard. During the ratification period, the Federalists repeatedly assured the Anti-Federalists and other skeptics of the proposed federal government’s limits. For example, Madison argued in
Federalist
14, “In the first place, it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws: its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the
separate
provisions of any.”
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In
Federalist
45 he insisted, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
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In
Federalist
46, Madison asserted that “the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all
those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.”
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Madison’s declarations were not unique among the Constitution’s proponents but rather were commonplace. And without these assurances—and the additional pledge that the First Congress would offer amendments to the Constitution further ensuring that individual and state sovereignty would be safeguarded against the new federal government (what became the Bill of Rights, including the Ninth and Tenth Amendments)—the Constitution would not have been ratified. Thus, the Constitution, drafted by delegates who were sent by the states to Philadelphia in 1787 and ratified subsequently by delegates in the state conventions, preserved the decisive role of the states in the American Republic.

It requires emphasis that
the states
established the American Republic and, through the Constitution, retained for themselves significant authority to ensure the republic’s durability. This is not to say that the states are perfect governing institutions. Many are no more respectful of unalienable rights than is the federal government. But the issue is how best to preserve the civil society in a world of imperfect people and institutions. The answer, the Framers concluded, is to diversify authority with a combination of governing checks, balances, and divisions, intended to prevent the concentration of unbridled power in the hands of a relative few imperfect people.

•  •  •

Unlike the modern Statist, who defies, ignores, or rewrites the Constitution for the purpose of evasion, I propose that we, the
people, take a closer look at the Constitution for our preservation. The Constitution itself provides the means for restoring self-government and averting societal catastrophe (or, in the case of societal collapse, resurrecting the civil society) in Article V.

Article V sets forth the two processes for amending the Constitution, the second of which I have emphasized in italics:

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 . . .
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Importantly, in neither case does the Article V amendment process provide for a constitutional convention. It provides for two methods of amending the Constitution. The first method, where two-thirds of Congress passes a proposed amendment and then forwards it to the state legislatures for possible ratification by three-fourths of the states, has occurred on twenty-seven occasions. The second method, involving the direct application of two-thirds of the state legislatures for
a Convention for proposing Amendments
, which would thereafter also require a three-fourths ratification vote by the states, has been tried in the past but without success. Today it sits dormant.

The fact is that Article V expressly grants state legislatures
significant authority to rebalance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful, as many delegates in Philadelphia and the state conventions had worried it might. The idea was first presented at the Constitutional Convention on May 29, 1787, by Edmund Randolph, governor of Virginia, as a proposal in the so-called Virginia Plan drafted by Madison.

Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not be required thereto.
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On June 11, George Mason of Virginia—who had earlier drafted Virginia’s Declaration of Rights, the precursor to the Declaration of Independence—responded to some of the delegates who did not see the necessity of the proposal, by strongly advocating for it.

Col: Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. 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 Natl Legislature, because they may abuse their power, and refuse their consent on that very account. . . .
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Later, when the delegates returned to the issue, Roger Sherman of Connecticut—who had been a member of the Committee of Five, which helped draft the Declaration of Independence, and who coauthored the so-called Connecticut Plan, which served as the basis for our bicameral Congress—offered an alternative in which Congress would propose amendments and the states would ratify them. Madison suggested dropping the state convention altogether.

On September 15, Mason, alarmed that Congress would have the sole power to propose amendments, continued to insist on state authority to call for conventions. Mason explained that an oppressive Congress would never agree to propose amendments curtailing its own tyranny:

Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.
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Mr. [Gouverneur] Morris [of Pennsylvania] & Mr. [Elbridge] Gerry [of Massachusetts] moved to amend the article so as to require a Convention on application of 2/3 of the Sts [states].
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Earlier, Pennsylvania’s James Wilson, among the most active participants at the Constitutional Convention, had “moved to insert ‘three fourths of’ before the words ‘several States,’ ” which was adopted and then ultimately added as a requirement for both
amendment processes under Article V.
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Consequently, under both amendment procedures, the Constitution requires that three-fourths of the states ratify amendments, either by their state legislatures or state conventions.

I was originally skeptical of amending the Constitution by the state convention process. I fretted it could turn into a runaway caucus. As an ardent defender of the Constitution who reveres the brilliance of the Framers, I assumed this would play disastrously into the hands of the Statists. However, today I am a confident and enthusiastic advocate for the process. The text of Article V makes clear that there is a serious check in place. Whether the product of Congress or a convention, a proposed amendment has no effect at all unless “ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof. . . . ” This should extinguish anxiety that the state convention process could hijack the Constitution.