Amending the Constitution
Article V of the Constitution permits the document to be amended. Unfortunately, most people and politicians do not have the patience to go through the long and tedious process of amending the document. It can take years or decades for amendments to be approved. For instance, the Twenty-Seventh Amendment literally took over 200 years to pass.
In nearly 240 years, the Constitution has only been amended 17 times after the passage of the Bill of Rights. The Twenty-First Amendment repeals prohibition which negated the passage of prohibition with the Eighteenth Amendment. Hence, only 15 new ideas have been amended to the Constitution in United States history.
Three of those Amendments, in my opinion, should have never been ratified because they violate the separation of powers doctrine our founders enshrined in the Constitution. Separation of powers essentially defines how sovereignty is shared among the branches of the federal government and between the federal government, state governments, and the people.
Case in point, the Eleventh Amendment prevents citizens from suing any state government in which they are not a resident. If, for example, a state government defaults on a contract with a citizen or company, the Eleventh Amendment could render the citizen or company powerless to sue the state for damages.
Additionally, the Sixteenth Amendment had two major implications. First, it overruled Pollock v. Farmers Loan and Trust (1895) and second, it legalized the income tax. The Sixteenth Amendment provided the federal government with increased power at the expense of state governments and the people. Similarly, the Seventeenth Amendment mitigated the power of state governments (federalism protected by the Tenth Amendment) when it replaced the responsibility for the election of Senators from state legislators with the people.
The bottom line is that the addition of very few constitutional amendments suggest that the original meaning of the document is sound. If the Constitution fails to meet modern requirements to the satisfaction of a special interest group, the document needs to be properly amended and not changed through some arbitrary legislation or invented judicial doctrine such as a living constitution. More specifically, regardless of whether or not the Constitution needs to be amended, it does not change the fact that originalism is the only valid and legal method to interpret the Constitution.
Convention of States (COS) is a non-profit seeking to call an Article V convention of the states to identify amendments to rein in federal power. COS has been working tirelessly for over a decade to get two-thirds of state legislatures to approve this measure. Currently, 19 of the 34 states required have approved this proposal.
In sum, the founder's vision was to make it difficult to amend the Constitution. Moreover, the amendment process prevents opinionated and biased legislators and jurists from changing the meaning of the Constitution whenever they please.
Modern Times
Most people believe originalism is outdated because it does not consider, for instance, modern technology. In particular, is a warrant necessary if the police used infrared technology outside a residence to determine if marijuana was being cultivated inside the residence? Since the police never entered the residence, should this search be considered illegal? In another example, is a warrant necessary for the police to access the GPS of an individual’s phone to track their location? Since the police never physically seized the phone, should this search also be considered illegal? More specifically, do these searches constitute an illegal search and seizure under originalism? Many will argue these searches are not in violation of the Fourth Amendment.
The bottom line is the Fourth Amendment does not care what method or technology was used to circumvent the amendment. The Fourth Amendment makes no exceptions and therefore, the right is absolute. If any home or phone was searched without a warrant regardless of the method used, then these searches are unreasonable and violate the property and privacy rights of citizens. Protecting the rights of citizens requires a very broad interpretation of the Bill of Rights. Broad constitutional interpretations would also ensure the Bill of Rights accounts for modern advances in society.
Moreover, our rights have remained the same over the course of history. Thus, it makes little sense to update the Constitution to better protect our rights since those measures were already taken into account by the founders. In fact, I will argue that most changes to the Constitution mitigate our rights. For instance, the language of the Takings Clause of the Fifth Amendment (eminent domain) remains exactly the same, but Supreme Court precedent has changed its meaning from allowing the government to take private property for public use with just compensation to allowing the government to take private property for private benefit without just compensation.
A living constitution and rogue legislation have resulted in a government that is no longer limited and following the textual meaning of the Constitution. COS's objective is to pass amendments that recapture the founder's textual meaning of the Constitution that requires a limited government. More context will be added to many of the topics discussed in this blog, such as taxes and property rights, in future writings.
Patrick Bohan is not a historian or lawyer, just a patriot who has independently studied these subjects.
