During the course of his speech, Madison noted that “there is a great probability that such a declaration (bill of rights) in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operation of this [federal] government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the State Legislatures to be sure guardians of the people’s liberty. . . . ”20
In Ameritopia I explained, “The debates between the Federalist and Anti-Federalist camps did not involve fundamental disagreements about the nature of man and inalienable rights, about which there was near-universal consent and for which a revolution had been fought and won, but how best to arrange a government, after the revolution, to ensure the perpetuation of American Society. The delegates at the constitutional and state conventions feared above all else the concentration of too much power in the new federal government. . . . Not only was there no support for an all-powerful central government, but the delegates at the Constitutional Convention spent most of the summer trying to figure out how to ensure that no office or officeholder in the new federal government would become too powerful. . . . ”21
Moreover, the historical record is unequivocal, despite modern myths and misconceptions, that several of the states were the impetus for the Constitution’s recognition of, and emphasis on, individual rights and autonomy vis-à-vis the federal government.
The proposed amendment is compelled because, among other reasons, the Statists have achieved significant success in unraveling the Constitution and centralizing governmental power. As I wrote in Liberty and Tyranny, “So distant is America today from its founding principles that it is difficult to precisely describe the nature of American government. It is not strictly a constitutional republic, because the Constitution has been and continues to be easily altered by a judicial oligarchy that mostly enforces, if not expands, the Statist’s agenda. It is not strictly a representative republic, because so many edicts are produced by a maze of administrative departments that are unknown to the public and detached from its sentiment. It is not strictly a federal republic, because the states that gave the central government life now live at its behest. What, then, is it? It is a society steadily transitioning toward statism. . . . ”22
As noted earlier, in Federalist 51, Madison wrote, in part, “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”23
To reiterate, no governing system is perfect. No level of government is perfect. This would seem obvious. Then why concentrate so much authority in the hands of so few imperfect individuals? And if men are incapable of managing their own affairs, what explains the ability of a relatively small number of them to manage the lives of so many others? The Framers knew the nature of man better than most, which is why they were careful and deliberate in establishing our constitutional system in the first place. But they also embraced the Enlightenment and its greatest architects, including John Locke and Charles de Montesquieu, as well as the Judeo-Christian spiritual emancipation of the individual, which preaches, among other things, man’s altruism and capacity to improve and do good deeds.
The original constitutional construct—a social compact with limits, enumerations, divisions, etc.—was instituted to preserve the civil society and the individual’s unalienable rights. But there is no denying that the federal government today is in many ways inimical to that purpose. The steady jog toward unbridled, centralized decision-making has become a sprint. The federal government has evolved into a colossus and the circle of liberty that surrounds each individual is shrinking.
• • •
The proposed amendment provides the body politic—that is, we, the people, through our state representatives, who live among us in our communities and with whom we can personally consult—with recourse against the federal government’s usurpation of individual and state sovereignty. It assumes the citizenry rejects its growing subjugation by a class of governing masterminds who oversee an army of federal bureaucrats, and still desire self-government and representation by consent. There is no doubt this professional ruling class and its adherents, dug in for a century or more and enjoying their dominance over society, will object strenuously to any effort to rebalance the several governments and reestablish the Framers’ aims, even though the federal government will still retain considerable authority.
Furthermore, the proposed amendment, like the others, must overcome a very difficult hurdle to even be considered by the states—a process that has never been employed successfully in the adoption and ratification of any of the existing twenty-seven amendments. Again, Article V provides, in part: “[O]n the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof. . . . ”24
The proposed amendment would empower the states to bypass Congress altogether—that is, they would not be required to make application to Congress in order to pursue amendments. Even though making application to Congress is a ministerial event, there is no persuasive reason the states need to administratively organize their amendment efforts through Congress. In fact, among the reasons the states may be moved to act is precisely because of conflicts or disagreements with Congress. More importantly, the proposed amendment enables the states to amend the Constitution directly, by a two-thirds (34) rather than three-fourths (38) vote, and without convening a convention. This remains no easy task, given the political disparateness and other diversities among the states. It is also a legitimate and lawful means by which to amend the Constitution, although the hurdle remains high, unlike the frequent constitutional rewriting by federal officials that occurs today and has for decades.
In addition, the proposed amendment places a six-year limit on the time an amendment can be considered and adopted by the states, starting from the date it is first proposed by a sworn, certified filing by a state with the Archivist of the United States. Moreover, once a state ratifies a proposed amendment, the decision cannot be reversed and the proposed amendment cannot be modified during the six-year period. This prevents indecision, instability, and confusion in the state amendment process.
On June 6, 1788, during the Virginia Ratification Convention, Madison, responding to Patrick Henry’s charge that the Constitution’s enumerated powers would be usurped quickly by a federal government, asserted, “If the general government were wholly independent of the governments of the particular states, then, indeed, usurpation might be expected to the fullest extent. But, sir, on whom does this general government depend? It derives its authority from these governments, and from the same sources from which their authority derived. . . . ”25
CHAPTER TEN
* * *
AN AMENDMENT TO GRANT THE STATES AUTHORITY TO CHECK CONGRESS
SECTION 1: There shall be a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final passage by both Houses of Congress. During the engrossment period, the bill or resolution shall be placed on the public record, and there shall be no changes to the final bill or resolution.
SECTION 2: SECTION 1 may be overridden by two-thirds vote of the members of each House of Congress.
SECTION 3: Upon three-fifths vote of the state legislatures, the States may override a federal statute.
SECTION 4: Upon three-fifths vote of the state legislatures, the States may override Executive Branch regulations ex
ceeding an economic burden of $100 million after said regulations have been finally approved by the Congressional Delegation Oversight Committee [see Chapter 9: An Amendment to Grant the States Authority to Directly Amend the Constitution].
SECTION 5: The States’ override shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.
SECTION 6: The States’ override authority must be exercised no later than twenty-four months from the date the President has signed the statute into law, or the Congressional Delegation Oversight Committee has approved a final regulation, after which the States are prohibited from exercising the override.
AS EXPLAINED EARLIER, THE level of complexity in amending the Constitution was intentional. However, in matters that require more timely redress and do not necessarily call for constitutional rebalancing, a more practical and, therefore, lesser threshold of three-fifths vote of the states (thirty states) would be appropriate. Moreover, unlike an amendment to the Constitution, the states would have the authority only to override specific federal laws or regulations, not replace them or modify them. Among other things, such a process would help relieve the intensifying dissatisfaction with congressional and bureaucratic interventions in the daily lives of the people. It would cause Congress to consider more seriously the reaction of the states and the consent of the people to the consequences of their lawmaking for fear that the states might override a bill or regulation. It would encourage and expand participation by the public in a democratic and civil way, including working with state officials and organizing efforts at the local level, and serve as a counterweight to both federal authoritarianism and street anarchy. And Congress would be required to follow a constitutionally mandated discipline, rather than abandon the deliberative process for “emergency” legislation, and risk state override when adopting complex and omnibus bills. In short, the proposed amendment would promote a more rational legislative process in lieu of the current autocratic disorder, and extend republicanism in contrast to its ongoing contraction.
In his Commentaries on the Constitution of the United States, Associate Justice Joseph Story observed that “[a] government, forever changing and changeable, is, indeed, in a state bordering upon anarchy and confusion. A government, which, in its own organization, provides no means of change, but assumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circumstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. It is wise, therefore, in every government, and especially in a republic, to provide means for altering, and improving the fabric of government, as time and experience, or the new phases of human affairs, may render proper, to promote the happiness and safety of the people. The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather than to open a way for experiments, suggested by mere speculation or theory.”1
A primary purpose of the proposed amendment is to moderate and, at times, confine, if not undo, the tumult and perplexity unleashed on society by hyperactive governing masterminds—in this instance, Congress and its offspring, the administrative state. Conversely, the proposed amendment promotes change as reform, which is intended to preserve our founding principles and restore our constitutional system. British statesman and philosopher Edmund Burke explained, “There is a manifest, marked distinction, which ill men with ill designs, or weak men incapable of any design, will constantly be confounding,—that is, a marked distinction between change and reformation. The former alters the substance of the objects themselves, and gets rid of all their essential good as well as of all the accidental evil annexed to them. Change is novelty; and whether it is to operate any one of the effects of reformation at all, or whether it may not contradict the very principle upon which reformation is desired, cannot be known beforehand. Reform is not change in the substance or in the primary modification of the object, but a direct application of a remedy to the grievance complained of. So far as that is removed, all is sure. It stops there; and if it fails, the substance which underwent the operation, at the very worst, is but where it was.”2
Undue alterations and constant abstractions are the hallmarks of the modern Congress and the administrative state. They are especially notorious and deceitful, for they are often imposed in the name of the people but without their consent or even knowledge. It is this exercise of arbitrary power, and the infliction of social experiments by ambitious public officials—pushing and pulling the individual from here to there, and tormenting him nonstop by banning and mandating the most minute lifestyle behaviors—which are intended to make subservient the individual’s independence and unalienable rights. This is precisely what the Constitution was crafted to blunt. There has never been a compact for democratic tyranny in the United States. This clash of purposes—the clash of liberty and tyranny—goes to the heart of the matter and is the impetus for the proposed amendment.
On November 13, 1815, John Adams wrote Thomas Jefferson that “[t]he fundamental Article of my political Creed is, that Despotism, or unlimited Sovereignty, or absolute Power is the same in a Majority of a popular Assembly, an Aristocratical Counsel, an Oligarchical Junto and a single Emperor. Equally arbitrary cruel bloody and in every respect diabolical.”3 Provision is indispensable for greater input, not less, by the body politic in the conduct of national affairs, and in a manner consistent with constitutional republicanism. This is especially so today. The proposed amendment makes a necessity of cooperation, accommodation, and, more often than not, concurrence within the federal government, between the federal government and the states, and among the several states. It also creates opportunities for public inquiry and participation.
The additional federal and state legislative deliberations consequent to the proposed amendment’s adoption would also slow the increasingly routine congressional practice of circumventing the subcommittee and committee hearing process for the sinister purpose of concealing the particulars of voluminous legislation, or rushed stopgap measures, even from rank-and-file lawmakers and the most attentive citizens. This a weak spot Thomas Jefferson raised in a letter to James Madison on December 20, 1787. Commenting on the Constitution adopted recently by the convention and awaiting ratification by the states, Jefferson warned of the “evil” of this kind of legislating. He wrote, “The instability of our laws is really an immense evil. I think it would be well to provide in our constitutions that there shall always be a twelvemonth between the ingrossing a bill and passing it: that it should then be offered to its passage without changing a word; and that if circumstances should be thought to require a speedier passage, it should take two thirds of both houses instead of a bare majority.”4
More than two centuries after Jefferson’s caution, on March 22, 2010, the House of Representatives barely passed the nearly three-thousand-page-long Obamacare law, by a margin of 219–212 (without a single Republican vote). As with the initial adoption of Social Security and Medicare, there was no great clamor for Obamacare. Moreover, the final version had not been made available to the public until shortly before it was voted on in the House. Consequently, its concealment prevented public scrutiny of its particulars. As then-Speaker Nancy Pelosi, just a few weeks prior to the vote, told the Legislative Conference for the National Association of Counties, “We have to pass the bill so that you can find out what is in it. . . . ”5 Since its passage more than three years ago, the people still do not know the full extent of Obamacare’s effects. Meanwhile, thousands of pages of implementing regulations have been issued by the Department of Health and Human Services, the Internal Revenue Service, and other federal entities, imposing an untold number of mandates, controls, and costs on citizens.
So unpopular was the general proposition of Obamacare—namely, the unprecedented role the federal government would claim over individual health-care decisions—that even b
efore the vote on the law, the House leadership was searching for ways to claim members had voted for it without members actually having done so—a stunning violation of the Constitution. In early March 2010, the House Rules Committee proposed a rule to the full House, aka the “Slaughter Rule,” providing that, upon adoption of the House on a vote of yeas and nays of one bill (the “Reconciliation Bill”), an entirely different bill, H.R. 3590 (the “Senate Bill”), Obamacare would be “deemed approved” by the House. However, Article I, Section 7, Clause 2 of the Constitution states, “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States. . . . ”6 Thus, a law is enacted only if a bill containing its exact text is approved by a majority of the Members of the House; the Senate approves precisely the same text; and that text is signed into law by the president. Only after Landmark Legal Foundation threatened to sue the House for its planned subversion of the legislative process did the House leadership relent. Nonetheless, it is chilling that such a wholesale and blatant violation of the Constitution’s lawmaking requirements came so close to execution.7
But the congressional goal was clear. As former president Bill Clinton insisted, “It’s not important to be perfect here. It’s important to act, to move, to start the ball rolling. There will be amendments to this effort, whatever they pass, next year and the year after and the year after, and there should be. It’s a big, complicated, organic thing. But the worst thing to do is nothing.”8 In other words, it was important to install a massive health-care scheme as quickly as possible before the public could know what it was all about and there was a possible changeover in the congressional majority in the next election.
The Liberty Amendments: Restoring the American Republic Page 15