Amending the Constitution
By George Edwards
Our national government’s leaders continue to amass greater and greater power to our national government so that its powers are out-of-control. The unalloyed current system is not adequate to correct this.
In fact the current system rewards those who seek not to work for the benefit of the nation but rather to maintain such power indefinitely. Re-election gives such people greater and greater power to control our electoral process so they can do so. Motivated knowledgeable people have become powerless to change the situation within the current system.
Article V of the U.S. Constitution provides two ways to propose Amendments to the constitution. One way is “whenever two thirds of both Houses shall deem it necessary.” The other way is upon “the application of the Legislatures of two thirds of the several states.”
The first way requires a two to one vote of the two bodies of congress. They have a powerful vested interest in not changing the system to diminish their power. It is unreasonable to expect that they would overwhelmingly vote against the excessive power they have garnered.
The movement to amend the constitution in the second way is underway in 12 states each using the exact same words as needed for constitutionally requiring congress, by its Article V to “call a Convention for proposing Amendments.”
This is due to the 2013 Convention of the States [2013 COS] organization’s remarkable less than one year effort. Our two-hundred-year-plus experience with the current constitution has proven the most successful in world history. But our current national situation shows that at least one further amendment is needed to further constitutionally curb the out-of-control power of our national government.
The 2013 COS wording provides for that with the operative words:
“The legislature of the State of ______ hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”
Some Americans are concerned that this wording, in itself, would not adequately protect against an out of control convention in which delegates and their elected chairman could totally change the government beyond simply limiting its powers and the terms of office of its officials. Other Americans believe this wording is amply restrictive and yet would allow multiple highly desirable amendments such as the following, suggested by Mark Levin:
1) Term Limits: He proposes limiting service in both the House and Senate to 12 years. Yes, we’ve heard all the arguments about elections being the best limit. But the past 100 year has proven that to be false. As someone who works day and night to throw the bums out, I can tell you that is nearly impossible to throw them out with the amount of money they raise – precisely for their abuses of power. Levin also proves that limiting time in office was a highly regarded proposal during the Constitutional Congress.
2) Repealing the 17th Amendment: Levin proposes repealing the 17th amendment and vesting state legislators with the power to elect senators so that the power of states is not diluted, as originally feared by the framers of the Constitution.
3) Restoring the Judiciary to its proper role: The Judiciary was never meant to be an all-powerful institution in which five men in robes have the final say over every major policy battle in the country. In order to end judicial tyranny, Levin proposes limiting service to one 12-year term, and granting both Congress and the state legislatures the authority to overturn court decisions with the vote of three-fifths of both houses of Congress or state legislative bodies.
4) Limiting Taxation and Spending: Levin proposes a balanced budget amendment, limiting spending to 17.5% of GDP and requiring a three-fifths vote to raise the debt ceiling. He also proposes limiting the power to tax to 15% of an individual’s income, prohibiting other forms of taxation, and placing the deadline to file one’s taxes one day before the next federal election.
5) Limiting bureaucracy: He proposes an amendment to limit and sunset federal regulations and subject the existence of all federal departments to stand-alone reauthorization bills every three years.
6) Defining the Commerce Clause: Levin writes an amendment that, while technically unnecessary, is practically an imperative to restoring the original intent of the Commerce Clause. The amendment would make it clear that the commerce clause grants not power to actively regulate and control activity; rather to prevent states from impeding commerce among other states, as Madison originally intended.
7) Limiting Federal power to take private property
8) Allowing State Legislature to Amend the Constitution: Although the Framers intentionally made it difficult to amend the Constitution, they did so to preserve the Republic they created. However, the progressives have illegally altered our Republic through a silent and gradual coup without using the amendment process. If we are going to successfully push the aforementioned amendments, we will need an easier mechanism to force them through. The proposed amendment allows states to bypass Congress and propose an amendment with support of just two-thirds of the states (instead of three-fourths) and without convening a convention.
9) State Authority to Override Congress: A proposed amendment to allow states to override federal statutes by majority vote in two-thirds of state legislatures. The last two proposals are rooted in the idea that the states only agreed to the Constitution on condition that their power would not be diluted and that all federal power is derived from the states.
10) Protecting the Vote: A proposal to require photo ID for all federal elections and limit early voting.
I believe these are all highly desirable amendments to be considered by a convention. I imagine there are other such in people’s minds. In fact Levin’s first suggested amendment is explicitly covered with one item of the 2013 COS proposed wording, specifically to “limit the terms of office for its officials and for members of Congress.”
Levin’s first or the first 2013 COS suggested amendment alone, could, in the long run, resolve many of our problems with the current system. A similar amendment has been suggested by many citizens.
Does the rest of the blanket 2013 COS suggested application leave too much political leeway for the convention? I am fearful that it does even though there is no denying the 2013 COS leadership’s extremely learned and erudite defense of the 2013 COS approach.
To quote the part of a 2013 COS leader, Michael Farris, JD, LLM, response to the John Birch Society concern about an out-of-control convention:
“The two real controls on the possibility of a runaway Convention are: 1. The States adopt the subject matter of the Convention in advance, and it is binding. 2. Thirty-eight states must approve the proposed amendments coming from the Convention.
“It takes an incredibly wild imagination to believe that delegates appointed by the State legislators would defy their given agenda, and then, after an open rebellion, the State legislators in both houses of thirty-eight states would ratify an errant amendment.
“Congress is a permanent constitutional convention. It can propose amendments on any subject it wants, any day of the week. It is virtually impossible to imagine a Convention of States (appointed by State legislatures) composed of delegates more irresponsible than
the governing majorities in Congress. Yet, Congress doesn’t ever send out crazy amendments. Why not? Its members are constrained by the political realities posed by ratification—and nothing else.
“A runaway Convention is no more likely to occur than President Obama appointing me [to the next vacancy on the Supreme Court. It is theoretically possible—but with just a sniff of realism, common sense tells us it is impossible.”
My knowledge of constitutional history and law is imperceptible compared to that of Mr. Farris’s. Nevertheless, I believe that his and the rest of the 2013 COS is completely sound logically. Unfortunately if logic alone won in politics, we would not be in the present constitutional crisis.
You can view for yourself a hearing in which 2013 COS members briefly present their
case and others express their concerns by tapping on the link below and selecting Thursday April 3, 2014, 9:00 am—House Judiciary Committee: Constitutional Laws Subcommittee, http://www.scstatehouse.gov/video/videofeed.php
One might consider wording for state applications to congress for a convention be limited to term limits, or, at most, term limits and provisions for recall of any U.S. government official in all three branches of government.
This addition to the trimmed back approach falls right in line with the Citizens for Self-Governance aim to “enable citizens to replace legislators at all levels of government when their actions diverge from the will of the people.” [2013 COS is a project of the organization Citizens for Self-Governance].
The appeal of a trimmed back approach lies in the appeal of the Roberts Rules of Order dividing the question. But a question would remain as to whether such an approach is any less vulnerable to a runaway convention than the full 2013 COS approach which is already in process at least in 12 state legislatures and has been fully passed in one awaiting others to join in.
Petitions to congress by citizens and legislators for it to propose further individual amendments along lines such as Levin suggests are another way to make attempts to get amendments. However unlikely their success, such an approach does not have the risks that a convention has.
An ideal single compound amendment could be to provide for recall of federal government officials in the administrative, legislative and congressional branches and limit the time of each in office to twelve years or a single term whichever is less.
The single amendment approach requires a two to one vote of the two bodies of congress before presenting an amendment for voter approval. It is extremely unlikely that congress would vote so overwhelming for any amendment that diminishes the power it has garnered.
So a single amendment approach with at least some chance of passage might be to provide for recall of a president and vice president as this would not affect the power of congress. It would in fact help protect congressional power against an overreaching executive branch. This approach has historic precedent in the congressional limiting of presidential terms to two.
However unlikely the successes of single amendment approaches that depend on congressional action have, they do not have any risks that could conceivably result from an out of control convention.
Of course, congress could be petitioned for both single independent amendments separately and in combination with a 2013 COS application.
Bob Menges, State Director Convention of States Project, South Carolina has generously given me his valuable time and pointed me to documents detailing the 2013 Convention of the States project. Perhaps the most comprehensive information on the 2013 Convention of the States Project can be found by clicking http://conventionofstates.com/wp-content/uploads/2014/03/COS_Handbook.pdf to access "A Handbook for Legislators and Citizens."
As to the potential desirability of invoking constitutional amendments—
A modern philosopher who some rank with Aristotle, Kurt Gödel, has said that with the current constitution it would be possible for someone to become a dictator and set up a fascist regime. Albert Einstein and Oskar Morgenstern, who accompanied Gödel as witnesses in his application for U.S. Citizenship [from Austrian] restrained him from explaining just what the shortcomings were because of their concern that his views might jeopardize his chances for gaining the American citizenship that he so dearly sought. Unfortunately, no one is known to have asked him for particulars. Perhaps it was the constitution’s amendment process. It is simply not known.
The statesman-philosopher, Thomas Jefferson, wrote "Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age wisdom more than human and suppose what they did to be beyond amendment.” --Thomas Jefferson to Samuel Kercheval, 1816. "Let us go on perfecting the Constitution by adding, by way of amendment, those forms which time and trial show are still wanting." --Thomas Jefferson to Wilson Nicholas, 1803.
It is immaterial who might have said what except to help corroborate thinking in line with what those of extremely high repute have said. Many of us believe that the constitution needs perfecting because “time and trial” have shown that its current form, although perhaps the most perfect in the history of the world, has not proven able to adequately protect against the overreaches which the federal government has subjected us to. Other Americans are, perhaps, rightfully concerned that a national convention could get “out of control” so that those who do not share our American ideals could put us in an even worse condition than we are now.