Opponents of a convention say that the Constitution need not be amended, but simply enforced. They fear that a convention will produce amendments that detract from the Constitution, leaving our constitutional protections of liberty worse than they are now. The fear is justified.
Proponents of such a convention accurately note that the Constitution has been effectively amended by the legislative, executive and judicial branches, but not through the amendment process set forth in the Constitution. The Constitution, as far as it is effective today, is unrecognizable from that fundamental law over government itself. Proponents are correct about that.
Judicial decisions have effectively amended the Constitution, conflating powers of the other two branches beyond their constitutional limits. The Constitution as written is no longer the law of the land. A government-corrupted version substitutes for what the Framers created to govern while preserving liberty.
Now, President Obama is abusing the office of chief executive at unprecedented levels by acting as if he has legislative power, including repealing existing laws. The 17th century English Bill of Rights would not tolerate this, even of a king (“That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”).
While the problem of ignoring and violating the Constitution has gone into hyper-drive under President Obama, it has been in the makings for decades, particularly with the growth of, and judicial deference to, the administrative state, those alphabet soup-named agencies filled with unelected bureaucrats who act as though they are above and unaccountable to the rule of law.
A recent concurring opinion by Justice Clarence Thomas in an administrative law case, Department of Transportation v. Association of American Railroads, is a brilliant questioning of the current administrative state. He explains the reasons for the separation of powers, and why the “legislative” acts of administrative agencies are contrary to the Constitution. It is the very definition of tyranny, James Madison wrote, for legislative and enforcement powers to be combined in any one division of government.
Justice Thomas also includes a remarkable judicial nostra culpa with a clever reference to the famous excuse for Fascism associated with Mussolini:
“We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.”
Personally, I am inclined against a convention of states to amend the Constitution, but not because the Constitution as written has a chance to be enforced. That horse left the barn long ago.
The idealism of those who believe the Constitution may be enforced at this stage is noble, but decades of case law upending the Constitution as written proves them wrong. The unelected bureaucrats who seek to regulate backyard grills and take our bullets prove it. The inept response of Congress to President Obama’s lawless theft of legislative power emphatically proves it.
It seems indisputable, however, that the array of leaders among the states lacks the constitutional acuity of the Framers. As bad as leaders of the federal government are collectively in understanding, appreciating and articulating concepts that the Framers grasped, state leaders – again, collectively – may be worse. There are exceptions, but they won’t be the rule in an amendment process.
Article V, however, is included in the Constitution for good reason. Madison writes in Federalist 49 it is for “keeping the several departments of power within their constitutional limits,” or as he explains in greater detail:
“As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. (Emphasis added.)”
Madison also warns, however, that the people responsible for messing up the Constitution would likely rule the amendment process:
“The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.”
If, though, constitutional amendments are to be proposed – and they are being seriously discussed – the failure to curb the abuses demonstrated by President Obama and the violations of the separation of powers now found in the administrative state would render other amendments probably and mostly ineffective, and therefore not worth the effort.
A simple one-word amendment to Article I may be the most important to save the Constitution by ensuring that only Congress may exercise legislative powers:
“All legislative powers herein granted shall be vested solely in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Without a more explicit restraint on the executive branch exercising legislative power, any other amendments would be as untethered as the original Constitution.
Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of “The Law That Governs Government.”