Our Founders understood human nature better than almost any society in history.
They gave us a constitutional republic of three branches of government with clearly defined roles. They assumed that each would fight to take as much power for themselves within their branch, and by this, keep the other two limited within their roles.
What are those roles?
1. The Legislative Branch
Senate and the House of Representatives are responsible for writing bills which they give to the President to sign into law. When they do something unpopular, the voters remove them from office at the next election.
2. The Executive Branch
The President either signs the bills into law or vetoes them. The veto power is balanced by the option of a super majority vote of 2/3 of the Congress and Senate. It is also responsible for enforcing the laws once they are passed.
3. The Judicial Branch
The courts determine if the laws passed are Constitutional, based on the letter of the law and the original text of the Constitution. They are granted lifetime appointments so they aren't subjected to the political winds of the day.
In theory, that's how it's supposed to work. But that's not the reality.
Here's how it actually works.
1. The Legislative Branch uses teams of lobbyists and lawyers to write 2,000-page omnibus spending packages, while passing the lawmaking responsibility off to unelected bureaucracies, who then enact regulations that function the same as law.
They can impose business-crushing fines for violations. Since they aren't elected, the public has no recourse to vote them out. The legislators are also safe from public scrutiny as they can claim they had no role in the outcome. It then falls to the courts to settle any dispute.
2. The Executive Branch still has the option to veto the omnibus packages. It's a no-win situation for the President, though. The packages always contain funding for such a wide range of topics that he will always face political backlash no matter what he does. If there is something specific he wants to do, he writes an Executive Order. Disputes over these also end up in the courts.
3. The Judicial Branch, whose job is supposed to be reading the law as written, is saddled with the debates that should be taking place in the Congress and Senate. Since they are unelected and serve lifetime terms, they can't be voted out for mistakes and their rulings become the law of the land. The legislature can't overturn them and the President can't veto them.
Open seats on the court become the political circus we've witnessed through the past few appointments, because both sides want someone with their political point of view. One side wants someone with progressive inclination who will rule from opinion rather than law. The other side wants someone who will rule based on the original texts of the Founding Fathers.
It's a mess of imbalance with the judicial branch being granted almost total control over all of the functions of government.
But what if they get it wrong? They once ruled that a farmer who was growing wheat on his own land for his own use was somehow involved in interstate commerce (Wickard v. Filburn, 317 U.S. 111, 1942).
That ruling opened the floodgates of government regulation over every aspect of our lives. Now they believe they have the authority to regulate everything from your light bulbs to your choice of doctor.
What can we do about it?
Our Founders foresaw this possibility. They knew that the types of people who would seek power are resourceful. They also knew those people would never willingly give up that power. They gave us Article V as a solution to go around them and take their power away.
We could impose term limits to remove the incentive to relinquish their responsibilities. That could include limits on federal judges and the Supreme Court.
We could repeal the 17th Amendment so Senators would have to answer to their state legislatures for their actions instead of waiting for the next election cycle.
We could restore the meanings of the Commerce Clause and the General Welfare Clause to what the Founders intended.
We could give Congress and the state legislatures oversight on court rulings by super-majority votes. The possibility of being overturned might encourage them to rule based on law rather than opinion.
We could limit or remove the power of unelected bureaucrats to impose regulations. This could include shutting down unconstitutional federal departments.
We could limit or remove the President's executive order authority.
We could require a balance budget using generally accepted accounting principles.
We could repeal the income tax (16th Amendment) and require the federal government to live within their means.
Those are a few examples of what could be done through a Convention of States. The final results will be up to the delegates at the convention and the states who will ultimately ratify the outcome.
Our current system is out of control, and it is up to us to take it back.
