December 18, 2013

The most important provision in the Constitution is found in Article I, Section 1:  “All legislative Powers herein granted shall be vested in a Congress of the United States.”  This means that all federal laws are supposed to be made by Congress. Unfortunately, we have devolved into an executive state where the President and his agents (the administrative and regulatory agencies) have the power to make laws. 

Even the kings of England had no such power for many years prior to the founding of the American republic.  We have to dig deeply into the archives of American and British history to find relevant examples of an executive leader making laws that all must obey.

Washington, D.C., will never curb the power of the White House or the executive branch because they all take advantage of and benefit from the status quo.  For example, executive orders and administrative agencies give Congressmen plausible deniability whenever those agencies make silly, dangerous, or burdensome rules.  “I didn’t vote for such rules,” they say.  “I will send a stern letter of protest.”  Protest as they may, they love the fact that they don’t have to take responsibility for making the law one way or the other.

A Convention of States could propose an amendment that strips the President and the executive branch of the power to make laws that control us.  If they want to make rules for the internal operations of the government—so be it.  But if they want us to obey their laws, they need to pass them in the manner the Constitution mandates.

Conservative political talk show host Mark Levin, whose book The Liberty Amendments has sparked discussion and certain action to bypass Congress and have the states draw up Constitutional Amendments to lessen the power of the Executive and force Congress to do its job, is now joined by Glenn Beck, and Mike Huckabee among others, calling for a convention.

Three states so far have registered with the call, Virginia, South Carolina and Florida. At least nine other states representatives are actively talking about or planning to pursue some action leading toward participating in a convention. Twenty other states have legislators talking about the initiative and looking into the idea.

Back on Saturday, December 7th, nearly 100 state legislators, many distinguished, representing 32 states, assembled at Mount Vernon, Virginia. They gathered at the homestead of George Washington, 15 miles from the capital city named for him.  The purpose?   To discuss how, safely, to revive an overlooked, but invaluable, provision in the United States Constitution to allow a supermajority of states to rein in a power-drunk federal government.

According to a press release issued after the Assembly’s adjournment, “They emphasized the importance of any convention being done in a way that accomplishes the will of the people while protecting the sanctity of the Constitution, as this action could ultimately lead to proposed amendments to the U.S. Constitution, as authorized under Article V. The subject matter of what those amendments would be was not discussed.”

In other words, first things first.  First priority is to establish how this amendment process safely can be conducted.  Only when prudent ground rules are established will it be timely to consider substantive proposals.

The venue, Mount Vernon, was as apt as iconic.   George Washington, the father of our country, of course served as our first president.  Of perhaps equal importance Washington also presided over the original Constitutional Convention.  Now, lawmakers from a majority of states assembled at his estate to address the issue of how, safely, to bring Washington (DC) back into alignment with, well, the vision of (George) Washington.

The Mount Vernon Assembly is a noble exercise in federalism. Not for nothing is our fair nation named the United States of America.

Is the federal government out of control?  You, Dear Reader, must decide. As this columnist wrote at CNBC.com:

The federal government spent $15 billion from 1789 – 1900. Not $15 billion a year.  $15 billion cumulatively. Uncle Sam will spend $10 billion a day in 2011. The federal government spends more every two days than it did altogether for more than America’s first century. Although these sums are not adjusted for inflation [or population growth] they give a correct impression of the magnitude of the change from what our Founders set forth and our early statesmen delivered.

Thoughtful Republicans and Democrats, Progressives and Conservatives, as well as Tea Partiers and Independents … find this profligacy sobering, perhaps sickening.  Even after adjustment for inflation and population, it is impossible to argue that the federal government has not ballooned by orders of magnitude beyond that contemplated by the founders.

What is to be done?

Enter the Mount Vernon Assembly.

Some, especially on the left, are attempting to blame federal government dysfunction on the Constitution.  An Annals of Law feature in the current New Yorker, by Jeffrey Toobin, is entitled Our Broken Constitution. Wrong.  It is the federal government, not the Constitution, that is broken.  The federal government has gone out of alignment with its nature as envisioned in the Constitution.

And in the Constitution itself resides the solution.

Many Americans feel thwarted by their federal government.  Many humanitarian populists, both of left and right — including this columnist — see the federal government as out of touch with the “consent of the governed.” It is this consent that the Declaration of Independence cites as the source of government legitimacy.  The most poignant sign of this is the record low 9% popular approval rating of the United States Congress.

The Constitution contains within itself a mechanism designed to rectify this very problem. There is a little known, but powerful, “emergency cord” built into Article V.  This allows a supermajority of States – 34 to call a convention to propose amendments, 38 to ratify proposed amendments — to trump an obstructionist federal government and amend the Constitution.  The Constitution states:

on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which … 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….

This provision was inserted at the insistence of liberty-minded Virginia delegate George Mason. The background of its insertion is set forth in a recent article in The American Spectator by one of the most prominent advocates of the Article V state-led amendment process, Mark Meckler.  Meckler, as co-founder of the Tea Party Patriots, the largest and most authentic of the national Tea Party groups, is a man to be reckoned with:

According to the Convention records, Mason thought that, if left up to Congress itself, “no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.” In response, Gouverneur Morris and Elbridge Gerry made a motion to amend Article V to introduce language requiring that requiring that a convention be called when two-thirds of the state legislatures petitioned Congress.

This authority of the states to amend the constitution was praised by none less than James Madison in The Federalist No. 43:  “It, moreover, equally enables the general and the State governments to originate the [Constitutional] amendment of errors, as they may be pointed out by the experience on one side, or on the other.”  (Emphasis added.)

State-initiated amendments under Article V have been been obstructed, in our current era, by two principal opponents.  The noble Phyllis Schlafly, head of the Eagle Forum, is inexorably opposed to the use of the state-driven amendment process.  Also opposed is the  John Birch Society.  Mrs. Schlafly’s (and the JBS’s) oft-reiterated fear is of a runaway convention that could strip — rather than add to — protections of our civil liberties and add power to — rather than subtract power from — the central government.

Many conservatives of impeccable credentials respectfully consider Mrs. Schlafly’s concerns overblown.  And a popular movement has been developing for yanking the Article V “emergency cord” on the runaway federal locomotive.  Mike Farris, founder and head of the Home School Legal Defense Fund (and its national network of populist activists), also founder and Chancellor of Patrick Henry College, recently referenced his reverence for, and long working relationship with, Mrs. Schlafly.  It is Farris’s judgment that she has earned the right to be wrong, once, in an otherwise impeccable career of citizen service that spans over half a century. Many other conservatives, including this columnist, concur with Farris’s view.

Nevertheless most conservatives accord Mrs. Schlafly’s opinions great respect.  Thought leaders thus have been seeking an authoritative way to address Mrs. Schlafly’s fears by devising a bulletproof guarantee of federalist legitimacy for such a process … and against any possibility of a runaway convention.

Prominent among these thought leaders are Farris and both Mark and Patty Meckler, founders of the increasingly influential Convention Of States, a division of Citizens for Self Governance.  Their efforts are amplified by a bright and capable team of young constitutional tigers and by volunteer state leaders in dozens of states.

Other important thought leaders engaged include the American Legislative Exchange Council, the  Goldwater Institute’s Nick Dranias, Prof. Robert Nadelson  of the Independence Institute, and Roman Buhler, proponent of the Madison Amendment.  Then, two months ago, Mark Levin published his The Liberty Amendments, further validating the Article V process and drawing the important support of influential figures such as Rush Limbaugh, Sean Hannity, and, most recently, Beck and Huckabee.

The process begins to move from theory to practice.  Last May, Indiana Senator, and Senate president, David Long shepherded two pieces of legislation of highest integrity into law, presented, and explained, here.   These represent inviolable guardrails and guidelines to ensure no runaway convention and to ensure the prudence and legitimacy of the process.   Long’s breakthrough recently was the subject of an admiring column by the iconic Cal Thomas concluding that “Sen. David Long may have discovered the only path left for attaining fiscal solvency.”

Passage of Sen. Long’s legislation, and signature by Indiana Gov. Mike Pence, was a breakthrough. It may prove a breakthrough of historic proportions.   The Mount Vernon Assembly — assembling Democrats as well as Republicans — was another breakthrough.

Wisconsin state Representative Chris Kapenga conceived and chaired this assembly.  In an exclusive interview with this columnist, Kapenga said:

About a year ago, I visited Mount Vernon for the first time.  I sat on the same porch where George Washington sat with companions such as James Madison, Thomas Jefferson, and Alexander Hamilton.  It inspired me and made me think about how we are dealing with issues now similar to those they were dealing with then: issues of balance.  Then, America had to strengthen its federal government.  Now, the federal government’s power has grown excessive.  The states need to step up and re-balance matters.

Federalism at its finest.

The great jurist Learned Hand, in 1944, gave a brief, immortal speech, The Spirit of Liberty, before a million and a half people in Central Park, New York, on “I Am an American Day.” Hand observed:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

Judge Hand is a figure esteemed as much by the left as by the right.  Saul Alinsky cites Hand in Rules for Radicals.  An Article V amendment process is a function of citizen dignity — ‘power to the people.” It leans neither left nor right.  It is federalism at its finest.  It has, and will have, humanitarian populist proponents (and, also, not-always-so-populist opponents) on the left as well as the right.

Now comes almost a hundred citizen-legislators, hearts filled with love of country and of liberty.  These are the very hearts upon which Judge Hand advised us to rely.  These are hearts intent on restoring liberty to America, intent on setting up inviolable guardrails and guarantees to permit us safe access to the Constitution’s “emergency cord” — contained in Article V — to stop the runaway federal locomotive.

I predict that Sen. Long’s breakthrough legislation, or legislation directly inspired by it, will ramify widely throughout the several states during the 2014 and 2015 legislative sessions.  Then, by 2016, the matter of which amendment or amendments should be considered will be in order.  It is premature to consider these now.  Perhaps forthcoming will be amendments constraining Washington’s onerous taxing, profligate spending, and unjustifiable printing-press-money powers, thus ending the Federal Reserve Board once-and-for-all.

If so, the big political news of 2016 will not be about the presidential race.  It will be about how nearly 100 citizen-legislators began a process that restored liberty to America.  The big story is bigger than presidential politics.

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.