According to an AP-NORC poll, only 10 percent of Americans think our democracy is working. I know, we’re not a democracy. We’re a republic with some features of a democracy. But the message is still valid. Nine out of ten Americans don’t think our government is representing them. In a country that’s to be “of the people, by the people, and for the people,” that is not good.
Do Americans feel betrayed by their own government because it has deviated from our founding principles of
• Individual liberty over the demands of the mob?
• Equal protection under law rather than two-tiered justice?
• Equal opportunity rather than forced equity?
• Government accountability to prevent the advance of tyranny?
If so, why hasn’t our Constitution prevented this divergence from our principles?
Politicians, bureaucrats, and activist judges have worked for decades to weaken our Constitution – because it is a constraint on their power.
It started slowly, with judges using creative interpretation to find things in the Constitution which aren’t written in it. They were effectively replacing the amendment process with their will. The Constitution became a “living” document subject to the social engineering whims of the Supreme Court.
The erosion accelerated when “public servants” began using the power of their offices to violate our rights. Americans have been subjected to censorship, warrantless intrusion of our privacy, and targeted application of the law.
Now the assault on our Constitution has reached a “Thelma and Louise full speed towards the cliff,” rush to self-destruction. Leftists are demanding that Joe Biden simply ignore Supreme Court decisions which they disagree with. The leftists who specialize in cancelling things, are trying to cancel Article III (the judiciary) and Article V (the amendment process) of the Constitution. They’re claiming that “popular constitutionalism” justifies it.
Our Founders anticipated that our government would tend towards tyranny over time, and provided checks and balances against it. They defined the United States as a federation of sovereign states. They created two houses of Congress – one representing the people, and one representing the states. We use an electoral college rather than a popular vote for Presidents – so that states are represented in elections. The Founders intended the states to be the ultimate check on advancing federal overreach, and gave them tools to exercise that power.
One of the greatest state powers is provided by Article V of the Constitution. The first clause of Article V allows Congress to initiate the amendment process. However, our Founders anticipated that politicians and bureaucrats may get too cozy someday and that congress would be unwilling to place limits on the federal government. To counter that, they provided the second clause of Article V, which gives the states the ability to initiate the amendment process – without federal government consent.
If two-thirds of the states agree on the need for amendments, they can call a convention of states. At the convention, delegates approve proposed amendments to the Constitution. Convention proposals are then sent to the states for ratification. Proposals ratified by three-quarters of the states become binding amendments to the Constitution.
The President is not involved in the process and Congress’s only involvement is to set the time and place of the convention. The judiciary has no say about the constitutionality of amendments – because they are constitutional by definition. The states hold the power throughout the entire process.
Critics are quick to imply that the 2nd clause is obsolete because it has never been used. Nonsense. It has never been used because our government has never been as uninterested in our concerns as it is now (hence the poll referenced above). The Founders intended the 2nd clause as a safety net, should federal overreach begin to jeopardize our rights in the distant future. Unfortunately, we have reached that distant future. Our government is attempting to cancel our God-given rights, as our Founders feared it might.
How can amendments be used to return accountability to the federal government?
Would constitutional imposition of term-limits make election to office a public service, rather than a lifelong career? If Joe Biden had left office in 1984 – after two terms as a senator – would we now be dealing with Merrick Garland’s interpretation of justice, FBI censorship of speech, and 50 years of influence peddling?
Would constitutional constraints on federal spending prevent our savings from being eaten away by the termites of deficit spending and the inflation it causes? Would limits on government spending slow government growth and overreach? Would it benefit citizens if the FBI couldn’t afford a new building the size of the Pentagon, and the IRS didn’t get 80,000 new agents to harass taxpayers?
Would a constitutional amendment authorizing states to enforce federal laws serve as a check against federal bad behavior?
If states could arrest and prosecute government officials for violation of our civil liberties
• Would federal officials continue working with social media companies to censor us?
• Would federal and state officials cancel our rights of association and property, as was done during the pandemic?
• Would rogue DOJ officials charge a former President using novel legal theories?
If the states could enforce immigration laws, would the buses from Texas be running south, rather than toward sanctuary cities?
Would rioting and destruction of federal property be deterred if rioters faced justice from the communities they attacked, rather than leniency from a sympathetic federal prosecutor?
The late Justice Scalia was a supporter of an Article V convention. He said:
I do not have a lack of trust in the American people. I am the one here who is least terrified of a convention. The one remedy specifically provided for in the Constitution is the amendment process that bypasses Congress. I would like to see that amendment process used just once. I do not much care what it is used for the first time, but using it once will exert an enormous influence on both the Congress and the Supreme Court.
He understood the power that the states hold, if they choose to use it. Scalia believed that even if none of the proposals from a convention are ratified, it would serve as a warning to the federal government: Behave yourselves, you’re not as powerful as you think.
The possibilities for an Article V convention are endless, but the power is perishable. Once creative interpretation and disregard of the Supreme Court becomes the norm – as popular constitutionalism demands – the Constitution will be rendered meaningless, and the powers it bestows the states void. The ability of states to peacefully bring the federal government back under control will be lost – forever. We will be unable to govern our governors, because we will have let the powers given us by our Founding Fathers atrophy.
19 states have already committed to an Article V convention. 19 others are discussing it. The remainder are avoiding the conversation entirely.
Our body politic has been poisoned by decades of incompetence, malice, and corruption. We have an antidote, but it must be taken within a limited time after poisoning. With calls for “popular constitutionalism,” our time is running out. Our eyesight is dimming and our breathing is becoming labored. Yet we’re still trying to decide if we should take the antidote.
