Constitutional Repair

In another blog, by the estimable Citizen Tom, I engaged a pretend conservative who regularly haunts that site. The discussion post, entitled What Do We Need to Do?, raised the issue I wrote about yesterday: How do we fix the current political problems that arise from erosion of the Constitution? Citizen Tom later promoted this comment to its own blog post.

Before we get into my reply to faux conservative “scout,” let’s talk about other alternatives:

Can’t we just elect Republicans?

I think the answer to this is “yes, but.” We DID elect Republicans en masse in 2010, and it availed us surprisingly little. After the Tea Party’s massive success in 2010, the newly elected Constitutional conservatives were immediately  under attack — by Republican leaders, as well as the usual leftists (Democrats, Socialists and the media).

Some of these new conservatives gave in, allowing themselves to be bought off. Many were marginalized in every way Boehner and other Republican leaders could contrive, by being kept off of House and Senate committee positions. But some fought on, and would not be cowed into submission. Of these, Ted Cruz is an absolute standout and man of principle who, while being “young” as senators go, is one of the most accomplished attorneys in a legislative body containing hundreds of them.

But under current Republican leadership, which is devoted to power and perks rather than principles, Constitutional conservatives can accomplish little. Electing them  is good, but does not fix the substantive problems of usurpation of power.

So why not elect Ted Cruz as President?

I think this is a fine idea. But even a conservative Republican president, the first since Ronald Reagan, would not have the power to fight the entrenched bureaucracy that the US regulation-generating engine has become. And most of our problems can be traced to that point, or to the Supreme Court which is also largely outside of a president’s purview except for (mostly-chance) occasional appointments of new justices.

But I’d sure love to see Ted Cruz run and win. And he has won cases before the Supreme Court as well, and is very familiar with that body’s situation, and failings. The leftist media will hound him every day, but he’s shown he can handle that. He just won’t be able to do enough.

So how can we do enough?

Many Constitutional conservatives, including me, were inspired by Mark Levin’s book The Liberty Amendments. In this work, popular conservative radio host Levin lays out a little known aspect of the Constitution on amendments. A short review of Levin’s book is also useful, as it is fast and more readily digestible. It is The Liberty Amendments, Book Review by Zacharie Labranche.

A little background: All previous amendments to the Constitution have been proposed by Congress itself, and thus they can be counted on to avoid proposing amendments to limit their own power, or that of their favored groups and bureaucracies.

But when the Constitution was being designed, this problem was recognized and anticipated. States can call a convention for proposing amendments and can adopt them (by 3/4s of the states) so that they become officially part of the Constitution without requiring Congress to do so. Congress MUST obey in this, according to the Constitution’s short Article V.

I think that this approach, detailed in The Liberty Amendments and catching fire across the US, is our last, best hope. But many on the left and even some on the right are raising a panic about this, suggesting that it would lead to anarchy and the complete elimination of our current Constitution.

Commenter “scout” (a leftist pretending to be a conservative as well as pretending stupidity to sidetrack conversations) made that objection on Citizen Tom’s blog. The text of my reply to scout’s comment, unedited, is below, and the quoted comment is scout’s:

Response to Objections to a Convention

You asked for a substantive reply to this comment. Let us do it, ignoring your pretenses, protestations, and claims about what conservatives think.

Many of us conservatives find the idea of a Constitutional Convention to be a rather radical idea, Tom. There’s no clear way of measuring it, but my guess is that the majority of opinion among constitutional conservatives is against the idea of convening a new convention.

This is not what is being proposed. A “Constitutional Convention” to craft a new constitution is an idea loved by many on the Left, but there is no mechanism for this in our current structure. Thus, any such group would be making up its own rules, and could be a class of high-school students if they can sell their idea. And then, it would be imposed, if they could, by force or by salesmanship, but not through any extant legal process. And the current government would be duty-bound to oppose such a thing.

But this has nothing to do with the process laid out in Article V of the US Constitution, which details the process of the states putting forth their own amendments and (almost completely) bypassing Congress. That is what is being suggested, and that should be the focus of any remaining concerns you may have or pretend to.

The urge for a convention seems to bespeak a lack of confidence in a document that has served us very well indeed and which, as conservatives, our instincts are to preserve.

This is not true. The original work has been eroded due to a gradual assumption of power by the Judiciary (beginning with Marbury v Madison) and now through executive overreach, but massively and extensively through an unelected bureaucracy. These aspects would be the focus of amendments that would restore, to the extent possible, the original concept and intent of the Constitution using the wisdom of the framers as a guide to that concept and intent.

A lot of us feel that the United States was extremely fortunate (even Providentially blessed, if you like)

I am amused at the sop that you throw to the religious Citizen Tom, magnanimously ignoring your own continued secularism.

… to get this document as our guiding operator’s manual and that it would be very unlikely that we would ever do so well again.

I happen to agree. It was extraordinary; the best we can hope to accomplish is to implement course corrections to restore the original aims.

The Founders were unique, both individually and in how they applied their knowledges and intelligences collectively in the 1780s.

I agree here as well. Extraordinary thinkers, producing ultimately an inspired result.

Do we have among us 40 such people today? If so, are they likely to be the people forming the new convention?

We have such thinkers, but few of them are attracted to government service.

Can we agree who these people should be?

That decision is called out in Article V as one made by individual states.

I wouldn’t count on that. For example, will New York State find us, as their one delegate to the convention, an Alexander Hamilton, as they did in the 1780s? Would Virginia proffer another Madison, another Washington (maybe Colin Powell would do in that role)?

We’ve discussed your liberal nomination. No more to be said here.

Do you think those attending the convention could keep to the high road and keep petty modern political feuds out of the process?

I would agree with you that this will not happen.

I would not be optimistic about that.

Here is a different point of view: Most of the states lean conservative in their state-level legislatures. Also, many of those candidates on the left, since they are state level, would find reducing the power of the federal government attractive — even if they have in mind turning their own states into liberal Utopias. This combination of good hearts and self-interest might be enough to see good amendments done, and if nothing more is accomplished but proposing amendments, we can then focus on those to see where to go next.

I would be very concerned that the result would be garbage virtually indistinguishable from the products that emerge from the Congress now.

I can imagine a Constitution the size of the Internal Revenue Code. In fact, we effectively have more than that now, because of the hundreds of thousands of regulations written without benefit of legislation. That is worth ending.

Why would conservatives want to take that risk?

Because we believe that this is the only way, as it follows the Constitution and avoids violence, to salvage the mess progressives have made.

A Second Reply to Scout

Scout wrote in response (combining two comments):

It frankly never occurred to me that an Article V convention was other than a convention. The states can request the convention and the Congress call it, but once that process starts, why is that not a constitutional convention? Certainly when I use the term, I am assuming the advocates of that process are proposing an Article V convention. I don’t see any other means of pulling it off.

@ Keith – I have never been aware of any other kind of “constitutional convention” beyond that provided for in Article V of the current document. My concerns don’t assume that there is some other animal out there. I see nothing in the document that convinces me my concerns about the quality and cohesion of the delegates to such a convention, as compared to the 1787 convention, are baseless. Your assurances that, because many states are “conservative” or trending that way, we needn’t worry about protecting the benefits of the current system do not reassure me.

I know that you pride yourself, scout, in using the wrong labels and you take a certain pride in statements like yours above where you assert that you have always used the wrong label for the plan in Article V. But a constitutional convention is to form a constitution. There is no provision to do this in Article V or anywhere else in the Constitution. We did that, prior to bringing this one into being, because almost all of the States instructed their delegations that this was the plan. The prior Articles of Confederation were not working well and needed a complete recrafting.

In the process of writing the new Constitution, careful attention was paid to the amendment process, knowing that tweaks would be needed from time to time. They had to be possible, but not easy. Here’s the entire Article:

Article V: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on 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, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

What Article V lays out in its second clause (the aspect we’ve been discussing) has been referred to millions of times as “a convention of the states.” But the name officially given to it in Article V is “a convention for proposing amendments” as that is all it is empowered to do. There is no mechanism, no process, no pathway to do more. Period. And there is nothing that can be done with any such out-of-control result.

Let’s say that your worst fears are realized — though in your case, you’re simply using this as a strawman argument to dissuade conservatives from making necessary fixes. Let’s say that someone during this amendment convention introduces a new constitution crafted by one of the many Soros puppet entities such as the Apollo Alliance group who gave us Obamacare. And let’s say that your leftist friends like it, and somehow manage to get it adopted at the convention as the New Plan.

Then what? There is no process for approving a new plan shy of rebellion, as it is not an amendment to the current Constitution. But even if you were to craft an amendment that says “Amendment XXVIII: This amendment hereby replaces the entire US Constitution with Soros End-of-America Wet Dream Plan #1.” Do you think that the required three-fourths of the state legislatures, now largely conservative, would ratify it? I’d have said “don’t be silly” but you are making a career of that here.

Nothing done at “a convention for proposing amendments” can have any legal effect until 37 of the current state legislatures ratify it. And yet, it is this strawman you pretend to fear. The only thing to your dubious credit here is the fact that the media and others have chivvied many otherwise reasonable people to actually believe this. That can be fixed with information. But your opposition to Constitutional conservatism is not based upon data; I do not expect your position to change.

What amendments, specifically?

This is a crucial part … but if you’ll indulge me, I’ll list some tomorrow. Some will be right out of The Liberty Amendments, some are my own thoughts offered up for your consideration. But today’s post is long enough to risk your patience as it is.

===|==============/ Keith DeHavelle