The Liberty Amendments: Restoring the American Republic (3 page)

After more research and reflection, the issue crystallized further. If the Framers were alarmed that states calling for
a Convention for proposing Amendments
could undo the entire undertaking of the Constitutional Convention, then why did they craft, adopt, and endorse the language? In
Federalist
43, Madison considered both Article V amendment processes equally prudent and judicious. He wrote, in part, “That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments
to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. . . . ”
²⁷

There are other reasons for assuaging concerns. Robert G. Natelson, a former professor of law at the University of Montana and an expert on the state convention process, explains that “a convention for proposing amendments is a
federal convention
; it is a creature of the states or, more specifically, of the state legislatures. And it is a
limited-purpose convention
. It is not designed to set up an entirely new constitution or a new form of government. How do we know that it’s a federal convention? [It] was the only kind of interstate convention the Founders ever knew, or likely ever considered. Indeed, when they talked during the ratification process about conventions for proposing amendments, they always talked about them as representing the states.”
²⁸
Moreover, the state legislatures determine if they want to make application for a convention; the method for selecting their delegates; and the subject matter of the convention.
²⁹

In addition, Congress’s role in the state application process is minimal and ministerial. It could not be otherwise, as the Framers and ratifiers adopted the state convention process for the purpose of establishing an alternative to the congressionally initiated amendment process. It provided a constitutional solution should “the [federal] Government . . . become oppressive.”
³⁰
The text and plain meaning of Article V are inarguable. In
Federalist
85, Alexander Hamilton—a leading advocate of a robust federal government—explained that “the national rulers, whenever nine [two-thirds] States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be
obliged
‘on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing
amendments, which
shall be valid
, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.’ The words of this article are peremptory. The Congress ‘
shall
call a convention.’ Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air.”
³¹

I have no illusions about the political difficulty in rallying support for amending the Constitution by this process. After all, all past efforts have fallen short. And the governing masterminds and their disciples are more powerful and strident than ever. There is no doubt that their resistance will be stubborn and their tactics desperate as they unleash the instrumentalities of the federal government and the outlets of a corroboratory media to vanquish such a movement and subdue the public. Having rejected the Constitution’s limits, they will not be persuaded by references to its text and history. Their evasion has been their design. Others who self-identify as originalists, constitutionalists, and conservatives in asserting allegiance to the Constitution, as I do, might nonetheless be wary of or opposed reflexively to the state convention process for several reasons, including their unfamiliarity with its history and workings. Perhaps, in time, their high regard for the Constitution will persuade them of the judiciousness in resorting to it before there is little left of it. Still more may be resigned to a grim future, preferring lamentation to the hard work of purposeful action. And, of course, there are always the unmindful and content.

Whatever the reasons, there are also untold numbers of citizens who comprehend the perilousness of the times and circumstances, and the urgency of drawing the nation’s attention to the
restoration of constitutional republicanism. This book is an appeal to them. The Framers anticipated this day might arrive, for they knew that republics deteriorate at first from within. They provided a lawful and civil way to repair what has transpired. We, the people, through our state legislatures—and the state legislatures, acting collectively—have enormous power to constrain the federal government, reestablish self-government, and secure individual sovereignty.

•  •  •

What follows are proposed amendments to the Constitution—
The Liberty Amendments
. It is my hope and aspiration for our country that these amendments can spur interest in and, ultimately, support for the state convention process. In any event, should there come a time, sooner or later, when the states convene a convention, these amendments or amendments of the same nature—as I make no claim of unassailable knowledge—may prove useful and find their way into the debate. But a plan is what is needed, as is a first step. This is mine.

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 Article, any incumbent member of Congress whose term exceeds the twelve-year limit shall complete the current term, but thereafter shall be ineligible for further service as a member of Congress.

I
N 2010, THE YEAR
of a Republican tidal wave, 85 percent of incumbents from both parties were reelected. Three hundred ninety-seven members of the House of Representatives in the 111th Congress ran for reelection and 339 won. The story in the Senate was almost a mirror image of the House. A third
of the seats in the Senate were up for election. Twenty-five incumbents stood for reelection and twenty-one won. The Senate’s incumbent reelection rate was 84 percent.
¹

In 2008, the year Barack Obama was first elected president, the reelection percentage for House members was 94 percent. The Senate’s was down a hair to 83 percent. In fact, you can look at almost any congressional election cycle in the last two decades and find similar results.
²

Ronald Rotunda, Chapman University law professor and constitutional expert, made the point a few years ago that “turnover in the House of Lords has been greater than the turnover in the House of Representatives. There was even more turnover in the membership of the Soviet Politburo.”
³
And little has changed since.

In theory, there is nothing wrong with keeping a good public servant in office for as long as the official and we, the voters, want him there. New does not necessarily mean better, and often it can mean worse. And in our country, where the people regularly get to vote for members of the House and Senate—within very basic qualifications like age, citizenship, and residency—whomever voters choose to represent them should be up to them, right?

The problem is that theory can be a cruel mistress when it comes to reality, in which unexpected consequences often prevail. America has never been a pure democracy and majoritarianism has always been as much feared as monarchism. Moreover, our supposedly broad parameters of “choice” at the ballot box have actually caused a dramatic narrowing of electoral options for voters. Putting aside the media histrionics over “divided” government and the “dysfunctional” relationships between the two houses of Congress, these institutions are populated by a class of elected officials who jealously covet the power of public office.

Through gerrymandering of House districts, patronage, a barrage of self-serving free and paid media, and fund-raising advantages, incumbents are able to extend their hold on federal office. Furthermore, incumbents often use their positions as lawmakers to promote federal spending and legal initiatives that benefit their personal longevity in office, making it increasingly difficult for successful electoral challenges. For example, part of the unsustainable growth of the federal government can be attributed to members of Congress treating federal spending, borrowing, and taxing as a personal prerogative used to award funds and assign legal rights to various political and electoral constituencies and would-be constituencies. There are undoubtedly other reasons for their behavior, including and most certainly ideology, but there is no denying that the instrumentalities of the federal government are used to build political constituencies and supporters—that is, to reshape the nature and mind-set of the electorate. Therefore, Congress has become less of a representative body as its members are more insulated.

The consequences of these and other practices addressed by
The Liberty Amendments
have been extremely detrimental to our society, as measured by, among other things, the ever-more-centralized and coercive power of the federal government, unsustainable fiscal and monetary policies, and myriad statutes and regulations issued by a maze of federal departments and agencies. The ultimate costs are borne by the individual in lost liberties and property. Thus, while there are a host of complex circumstances that brought us to our current state, much of it would not be possible but for an increasingly insulated class of governing masterminds who use lawmaking and the public purse to empower themselves. It is apparent that in Washington and most political capitals
TIME
in office =
POWER
.

An important antidote is congressional term limits, which slowly displaces a self-perpetuating ruling class populated by professional politicians—which is increasingly authoritarian in its approach to governance—with a legislative body whose members are, in fact, more representative of the people, for they are rotated in and out of Congress over a generally shorter and defined period of time. University of California, Irvine, professor Mark P. Petracca explains that this rotation of citizen-representatives is central to a republic. “The oft-touted expertise of professional politicians as representatives stands in stark contradiction to the essential function of political representation in a democratic republic, namely, to connect the people to the government through representatives who share their values and stay in touch with the reality of their day-to-day lives.”
⁴
Congressional terms limits alone are not enough to rebalance our governing system, but they are a necessary and critical building block.

Term limits were not included in the Constitution as originally adopted and ratified, but they were recognized commonly as curbing the use and abuse of governmental power at the time of the Constitutional Convention. Benjamin Franklin, the primary author of the Pennsylvania Constitution, included an article preventing anyone from serving in the Pennsylvania General Assembly more than four years out of any seven.
⁵
The twelve-member executive council for the commonwealth also required that members serve no more than one three-year term, and then be off the council for an additional four years.
⁶

In addition, the Articles of Confederation, the first governing document the nascent republic adopted shortly after declaring its independence, also included a restriction on service in the Congress, the unicameral governing body made up of delegates from
the thirteen states. Article V of the Articles stated that “no person shall be capable of being a delegate for more than three years in any term of six years. . . . ”
⁷

The prevailing concern at the outset of the Constitutional Convention was that the new central government possess sufficient authority to overcome the weaknesses of the Articles of Confederation, but not denude the states of their independent and exclusive authority to administer a broad array of governmental functions. Hence, more attention was focused on devising the “checks and balances” within the federal government and securing state sovereignty through federalism to prevent abuse.

In the Constitutional Convention, on June 2, only days after it convened, Franklin offered his opinion about the question of paying legislators and executive officers of the federal government. He opposed the idea. But his speech is relevant respecting the effect of power on public officials, which can be read today as a prescient and compelling warning about human behavior.

Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men, a post of honour that shall be at the same time a place of
profit
, and they will move heaven and earth to obtain it. The vast number of such places it is that renders the British Government so tempestuous. The struggles for them are the true sources of all of those factions which are perpetually dividing the Nation, distracting its Councils, hurrying sometimes
into fruitless & mischievous wars, and often compelling a submission to dishonorable terms of peace.