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The best defense

Published in Blog on July 17, 2017 by Convention Of States Project

On Saturday, I took my family to Yorktown, Virginia, to hear Robert Kelly, Staff Counsel for the Convention of States Project, debate Jeff Lewis, National Director for Patriot Coalition. The event was organized by The Constitution Leadership Initiative, Inc. The question? Whether the states should invoke the Article V process for amending the Constitution in order to limit the power of the federal government.

The two gentlemen—and, from what I gleaned from the audience participation time, the entire audience as well—agreed that Congress is dangerously out of control, operating well beyond the scope of the original meaning of the specific, enumerated powers prescribed for it in Article I. Even so, there was a deep and passionate division between the men in their prescription for America.

Kelly explained his conviction that the problem is not simply a “people” problem, but is rather a “structural” problem. It isn’t just that we have mistakenly elected “bad” people to represent us in Washington, and thus the situation cannot be corrected by a streak of fortuitous elections in which “good” people are elected.

The Founding Fathers knew that even the best statesmen are susceptible to the love of power, and that is why they designed a system that capitalizes on this fact to keep the respective branches of government in check.  Kelly reminded us that our Founding Fathers wisely constructed a federal system in which checks and balances were meant to operate not only horizontally—among the three branches of the federal government—but also vertically, between the federal and state governments.

He reminded us of Madison’s explanation of the reason for this ingenious system: “Ambition must be made to counteract ambition.”  Kelly pointed out that in avoiding Article V’s provision allowing states to convene and propose constitutional amendments to effectively check the abuse of federal powers, the states have allowed the federal government to overwhelm the people.

In attempting to persuade the audience against using Article V, Lewis framed the decision facing Americans as an overly simple proposition: should we “defend” the Constitution, or should we “amend” it?  In his binary world, the correct answer is obviously to “defend” the Constitution.  But in the decidedly more complex, actual world of 2014 America, what does it mean to “defend” the Constitution? What does it look like to “interpose” state power between the people and the federal government?

The closest Mr. Lewis came to an answer was when he held up his pocket Constitution and suggested that we “tell [federal officials] to do their job!” Is he serious? When we are forced to pay our “tax” for failing to purchase the kind of health insurance President Obama would like for us to buy, will our letter telling our representatives to “do their job” get us off the hook? Will it somehow negate the mass of federal laws and regulations that the Supreme Court has found to be a proper execution of Congress’ power to regulate “interstate commerce”?

More to the point, will it negate the decades of Supreme Court precedents that declare this power over interstate commerce to encompass private, individual decisions?

In the rebuttal period, Kelly explained that the Convention of States Project seeks to both “defend and amend” the Constitution. He is right, of course. We have arrived at a point in history where the only effective “defense” we can make requires us to definitively reject the anti-historical interpretations of Article I powers the Supreme Court has endorsed, and then to correct them with amendments that clarify the meaning of these provisions in accordance with the drafters’ original intent.

When a sick patient develops a life-threatening infection, a physician cannot “defend” that patient’s health by protecting the patient from additional infections, nor by declaring the infections to be “unhealthy.”

Similarly, it is too late in the day for us to preserve our Constitution by electing more conservatives or getting state legislatures to declare acts of Congress to be unlawful. The proper remedy is to administer the appropriate antibiotic—in this case, amendments that oust the infection of harmful judicial precedents and restore the original meaning of the specific, enumerated powers. We must restore the original meaning of the Constitution in explicit terms, rescuing it from current, perverted interpretations which carry the force of law, in order to truly and effectively “defend” it.

Of course, because the plan advocated by Kelly and the growing grassroots movement of the Convention of States Project is a specific action plan, it entails considerably more effort than the alternative “tell-them-to-do-their-job” idea. But the reward for our labors will be real. Please join our movement today, and march with us toward a restored America. (Rita Dunaway is a Staff Counsel for the Convention of States Project.)

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