Restoring Constitutional Balance: The Case for an Article V Convention of States

We see demonstration upon demonstration of the inability of Congress to function properly with both political parties. Politically-biased subcommittees like the January 6 Committee created years of political propaganda used for media prosecution of President Trump and his followers. The former president, a primary opponent of the progressive party, has now become the political punching bag of multiple state prosecutors. Washington, D.C. is increasingly dysfunctional, encroaching on the powers of the States. The federal budget is out of control due to excessive spending by both Democrat and Republican administrations.

It is well past time for the States to come together for an Article V Convention of States to propose amendments to the U.S. Constitution to restore the principles of American government to what the Founders intended. It’s not enough to stop the excessive spending through a balanced budget fiscal responsibility amendment, nor is a term limits amendment sufficient to bring new energy and ideas to the legislature and to stop legacy legislators from increasing their personal wealth while growing the federal bureaucracy. We must place real limits on the leviathan of the federal government through a third proposed amendment topic: Limit the power and jurisdiction of the federal government. 

Hundreds of unelected bureaucrat-run administrative agencies fester within the executive branch, and their powers transcend the legitimate boundaries of executive power to include both legislative and judicial functions. These powers are often exercised independently of presidential control or any political control, creating a mutation of our Founders’ original intent—a constitution structured around the separation of powers and grounded in the rule of law, where each of the three branches of our federal government are a check on the other two—legislative, executive, and judicial. Franklin Roosevelt’s New Deal launched a large bureaucracy and empowered broad governing authority, illustrating the fundamental differences between progressive and founding-era notions of what comprises good government.

The rule of law facilitates government by the consent of the governed. The people have the opportunity to consent through the deliberation and votes of their elected representatives. The rule of law makes it much more difficult for government to play favorites, to benefit its personal friends and harm its personal enemies—maintaining a government dedicated to the equal protection of its citizens’ rights as outlined in the American Declaration of Independence. 

The Founders implemented a constitutional design centered on the separation of powers, exercised by three counter-balancing branches, each making sure the others remained within the confines of their proper constitutional scope. James Madison in Federalist No. 47, echoing Thomas Jefferson, redefined “tyranny” to mean the absence in government of the separation of powers. The principle of non-delegation in our Constitution means one branch of government may not permit its powers to be exercised substantially by another branch. The second tenet: there may be no combination of functions or powers within a single branch. Federalist No. 47 elaborates: “The accumulation of all powers legislative, executive, and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.” 

Woodrow Wilson, our 28th president, was the earlier architect of the Progressive Era big-government liberalism. He believed that for a large national government to exist, the nation had to move from constitutional to administrative matters, demanded by the necessities of the time. He knew that the Founders’ theory of the government’s primary duty was to protect rights of social compact. This theory held that men are naturally endowed with rights prior to the formation of government, and therefore consent is required to protect those natural rights from government edicts. He condemned such theories as “worse than useless” since they retard development—in other words, their focus on individual liberty prevents the expansion of government. He believed that the political branches of government had to cede significant discretion to administrative agencies. During his presidency the 16th and 17th amendments were added to the Constitution. 

The Supreme Court under William Rehnquist made clear that there would be no revisiting the abandonment of non-delegation in cases such as Mistretta v. United States. This allowed the U.S. Sentencing Commission to establish policies and practices for the federal courts. It served as confirmation that the federal courts were not going to bring the legitimacy of the administrative state into question by resurrecting the separation of powers. Administrative agencies routinely combine all three governmental functions in the same body, even in the same people within that body. The FTC is a particularly apt example, since it was the “quasi legislative” and “quasi-judicial” character of the FTC that was upheld in 1935 in the landmark Supreme Court case of Humphrey’s Executor v. United States. Later it even limited the president’s freedom to remove agency personnel. The Supreme Court overturned the president’s removal of an FTC commissioner by reasoning that the commission was more legislative and judicial than it was executive. Instead of the rule of law and separation of powers, today we have delegation of power, combination of functions, and the insulation of administration from the full measure of political and legal control.

The only method available to effectively reduce the overreach of the federal bureaucracy and its multitude of administrative agencies is for We the People to employ Article V of our U.S. Constitution to “limit the power and jurisdiction of the federal government.” It is time to do it.