Sunday, January 26, 2014

The Real "Nuclear Option"


"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,[emphasis added] 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 State, without it's Consent, shall be deprived of its equal Suffrage in the Senate."

In the face of continued abuses of individual rights and unconstitutional extensions of federal and judicial power, a call has arisen for an Article V Convention of the States.

The purpose of such a Convention would be the restraint of the federal government to it's Constitutional authority under the Enumeration of Powers and of the Supreme Court and Appellate Courts to their duty of applying Constitutional Law as written and understood at it's ratification (as opposed to the modern practice of exercising de facto legislative authority and interpreting the Constitution as a "living document" that must reflect the realities of the day), and a return of all rights and authority under the 10th Amendment to the States, to be exercised as their citizens see fit according to their individual State Constitutions.

While the Constitution has been Amended in the past (27 times, to be exact), each of those Amendments was the result of proposals from within Congress, itself.  A Convention of the States, as provided for within the same Article V, has never before been utilized and is distinctly different in it's application and scope.

To begin, what an Article V Convention of the States is not:  it is not a redrafting of the existing Constitution.  It is a process for the States to convene to propose and debate individual changes or additions to the existing Constitution; it is not subject to the approval of Congress.  The allowance for the States themselves to call for an Amendment to the Constitution was specifically meant as a curb against the federal governments abuse of power, a way for the States to preserve their Constitutionally guaranteed authorities and rights to conduct their own domestic affairs as they deemed best.

What an Article V Convention of the States is: it is a process provided for by the founders in the Constitution as a means for the several sovereign States to protect themselves from federal abuses of power by promulgating Amendments to the Constitution aimed at limiting federal authority;  it is, by definition, Constitutional and all Amendments thus approved by the Convention and further  ratified by three fourths of the (now 50) States shall have equal standing and authority with all other parts of the Constitution;  it's required by the Constitution that the Congress call the Convention upon receipt of declarations from two thirds or more of the States of the wish to convene such.  It cannot be refused.

Once called, a Convention of the States is hardly a free-for-all where the foundations of the United States can be dismantled, contrary to theories of alarmists.  The Convention is merely the framework wherein delegates from each of the States propose, debate, and vote on the suitability of several possible Amendments.  As such, it is unlikely any extreme measures will garner the necessary votes to be approved by a majority of the delegates and, if they were, they still would face the hurdle of gaining the ratification of three fourths of the States.  To take just two such examples, it is unlikely that any measure to allow a return to slavery in any State would survive nomination, and given that it only takes the votes of 13 of the States to block any proposal, it's equally unlikely that any proposal to curtail, abolish or repeal the 2nd Amendment would meet with any measure of success.

How it would work is that the Convention would propose, debate, and ultimately approve of a number of Amendments that would then be sent to the individual State Legislatures for ratification.  Given that the Convention as a whole would need to approve of any Amendments forwarded to the States, it's unlikely that the Amendments would number more than one or two, as is only suitable to such a serious matter.  The founders intended that the Constitution be open to amendment only for the most serious of situations and causes.

What would some of the potential benefits be and why should you care?  Firstly, there's the issue of individual liberty and rights guaranteed by the Constitution that have been subject to erosion due to the actions of government and activist federal and state courts over the last 150 years.  Every time the government assumes for itself jurisdiction over individual choices and actions, it takes the corresponding right and liberty away from the individual they claim to want to help.  Secondly, there's the issue of the right of people to govern themselves and arrange their societies as they deem proper.  Local control is almost always best, both as a means of police powers and a means of providing such charity as is necessary.  The individual members of a society or State are almost always better acquainted with their specific needs than any bureaucrat ensconced in a window-less cubicle in Washington, D.C.  The closer you can bring the potential solution to the problem, the more efficient and effective it will be.  If we can reign in the federal government and confine it to it's Constitutionally delegated authority, less money will be needed to be sent to Washington, leaving more resources to the disposition of the States.  If you don't send your money to Washington, you won't need to beg for it back in the form of "federal funding" for roads, bridges, schools, power grid regulation/construction, broadband, etc., etc.

Such a system would allow the greatest freedom and opportunity to each and every citizen to attain their ultimate potential.  It would also result in the eventual production of the best form of Republican government; as each State would be free to organize it's own affairs, the result would be 50 real-life laboratories experimenting with differing philosophies of governance.  Over time, the best practices would become obvious, and those systems that didn't work would fall by the wayside, relegated to "the dustbin of history".  It would allow people the ultimate in individual freedom, as well.  If your State began to institute social, taxation, and regulatory policies that you disagreed with, you could either attempt to change those policies through internal political action or you could simply "vote with your feet" and move to a State whose policies most aligned with your own ideals.  If you want a welfare state, where the government assumes responsibility for the well being of all of its citizens and determines the standard of living through such measures as price and wage controls, and you are willing to live under such a system and accept the high tax burden necessitated, no one would attempt to prevent you from moving to such a state.  That would be your right.  If you want a state where the government does little but administer the even-handed application of existing laws, protects individuals' rights and provides for the common defense, you could move to that kind of state, provided you are willing to take on the added responsibility of providing for yourself in return for the freedom to act as your reason and judgement deems best.

There is little not to like in the idea of an Article V Convention of the States and much that could accrue to our mutual advantage as individuals, States, and ultimately as a country.  I only hope that enough people can motivate their States to action in requesting the seating of such a Convention and that Washington hasn't become so lawless that they continue to ignore the Constitution, in favor of retaining their illegally arrogated powers and authority.

See the following links for more information:

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