One of the easiest ways for a Senator or Congressman to gain attention is to propose an amendment to the Constitution; If it pertains to a subject of interest to the public, all the better. Call a press conference, have your staff compose a press release and, for at least one news cycle, your name is before the public. Rarely does anything come of these publicity stunts and they are soon forgotten. There are up to 200 constitutional amendments proposed in a typical session of Congress. The average person seldom hears of these proposals unless they are on the Lawmaker’s mailing list or visiting his or her website.
Such antics on the part of our lawmakers have not been a serious problem constitutionally. Of the more than one thousand amendments introduced in Congress over the past two centuries only 33 have garnered enough supports in both houses of Congress to be presented to the states for ratification. Of those only 27 have been ratified including the ten making up the Bill of Rights.
Members of Congress can score political points with their constituents by proposing amendments, especially if the amendment involves a fashionable issue. The same opportunity for proposing constitutional amendments, however, is not extended to the state lawmakers by the Constitution. They typically solve this problem by calling for an amendatory convention.
Amendments to the Constitution must originate in Congress, or from a convention called by Congress for the purpose of proposing amendments, when requested to do so by the Legislatures of two thirds of the states.
“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…”
~Article V, U.S. Constitution
Article V was one of the last Articles to be debated by the Philadelphia Convention. After more than four months of exhaustive debate in a closed room with little reprieve from the heat and humidity of a Philadelphia summer, little time was given to its consideration. In fact, more time was devoted to the phrase “we the people” during the Virginia Ratifying Convention than was devoted to the Article for Amending the Constitution during the Constitutional Convention.
The absence of specific requirements in the states’ applications has led to some degree of controversy in recent years. One group called, “Friends of The Article V Convention” (FOAVC) has filed two lawsuits against the government claiming that the People have been denied their constitutional right to an Article V Convention by Congress; one making its way to the Supreme Court. Their claim is based on the fact that Article V does not specify a time frame for the states’ applications.
They claim that since the Constitution was ratified in 1788 more than 750 Article V applications have been made by all 50 states and Congress continues to ignore their constitutional duty to call for a convention to consider amendments. FOAVC rejects court rulings that in order for applications to trigger the Article V requirement for a convention they must be contemporary, and that the question is a political one over which the courts do not have jurisdiction.
The group fails to make a case for the need for a convention and does not indicate a reason for their insistence on one except for the fact that Article V provides for it. While they do not clearly disclose their agenda, an article by one of FOAVC’s founders, Joel S. Hirschhorn dated May 8, 2008 contains the following;
“Hillary Clinton and Barack Obama say they believe in giving Americans universal health care. I don’t believe them. Anyone who takes the time to understand universal health care should conclude that only a simple single payer system will reform the current outrageous system that benefits the insurance and pharmaceutical industries.
The contorted plans from Clinton and Obama are not sufficient reforms. And what John McCain has proposed is sheer nonsense and by itself should cause any conscious American to avoid voting for him….”
“…We must expand the Bill of Rights as embodied in the US Constitution to include the right to affordable universal health care. The time has come for the public to conclude that the right to universal health care is as important and necessary as the right to free speech and all the other beloved constitutional rights. Common sense says that health care is a right, not a privilege…”
This language certainly does not indicate someone who is devoted to the defense of the Constitution.
At any rate, whether or not the Constitution provides for an amendatory convention—as it certainly does—the real question should be; Is such a convention needed? And is it advisable? An Article V convention has never been convened in our history and there are several good reasons why one should not be.
The danger of altering the plan of government
While delegates to an Amendatory Convention would not be authorized to rewrite the entire Constitution, there would be no limits to the number and scope of the amendments proposed.
Thus far Article I, Sections two, three, four and nine, Article II, Section one, Article III, Section two, and Article IV, section two have all been changed by Amendment. Most of these amendments have produced unintended consequences; Abortion, a progressive income tax, and the loss of state sovereignty for example.
The futility of Constitutional Amendments
Our government has not been a true Constitutional Republic since the reign of Franklin D. Roosevelt. Presidents, Legislators and Courts seem to acknowledge the Constitution only when it furthers their agenda, otherwise it is ignored. There is no indication that additional amendments would be honored by government officials to any greater degree than they honor the Constitution now. Before we open up the Amendment process by calling for an Amendatory Convention we need to regain control of the government as a whole and bring it back under the jurisdiction of the Constitution as it is.
Lack of need for a convention
Whenever a public outcry for a new Amendment to the Constitution arises it is usually due to persistent breaches of the Oath of Office by elected officials or a departure from the fundamental principles set forth in the Declaration of Independence. Of the seventeen Amendments ratified since the Bill of Rights only the twelfth and twenty first were necessary; the latter to correct the ill-advised eighteenth. Most of the problems intended to be corrected by the remaining fifteen could have been corrected legislatively without violating the Constitution as it was.
The sixteenth and seventeenth Amendments have proven to be damaging to our form of government, the eighteenth violated a fundamental natural right and most of the others came with unintended consequences that have proven detrimental to the general welfare. In addition they have provided fertile ground for activist judges to substitute their social preferences for Constitutional law.
While the Constitution is not perfect, two hundred years of history indicates that it is as near to perfection as a basis of government as mankind is capable of devising. All of us should become a little nervous when our political leaders seriously talk of changing it. “If it ain’t broke, don’t fix it.”
What Happened to My Country? Part Two
November 18, 2009 by Jerry McDaniel
The Progressive Era
Sixteenth Amendment—Income Tax
The Progressive Era was one of the high points in the advancement of the socialist movement in America; this in spite of the fact that the socialists parties never garnered more than nine percent of the vote in presidential elections. Since Marx’s Communist Manifesto, a goal of socialism had always been the establishment of a graduated, progressive income tax for the redistribution of wealth. The Sixteenth Amendment provided the opportunity to realize that goal.
Although the Socialist Parties themselves were never able to muster a significant amount of support at the polls, their ideas permeated much of society at the turn of the twentieth century. It was during the Progressive Era that we got the Clayton Antitrust Act, the Federal Trade Commission, the Hepburn Act strengthening the ICC, four constitutional amendments and the Federal Reserve Bank. In the Presidential Elections of 1912, all four presidential candidates—Democrat Woodrow Wilson, Republican William Howard Taft, Progressive Theodore Roosevelt, and Socialist Eugene Debs—supported the income tax.
When the income tax first came into force, the rate was 7% on the wealthiest earners. Four years later the top marginal rate was 77%, an eleven-fold increase. The tax code today is over 40,000 pages and is used as much for social engineering and wealth redistribution as it is for the constitutional purpose of funding the essential functions of government.
The Sixteenth Amendment repeals Article One, section nine, clause four of the Constitution. It does not repeal clause one in section eight which limits taxes to paying the public debt and funding the enumerated functions of government. Nowhere does the Constitution authorize a progressive income tax. In fact, it could be argued that a progressive tax violates the principle of uniformity called for in Article One, section eight, clause one.
Seventeenth Amendment—Election of Senators
Socialists, liberals, and progressives habitually use language in a cynical and misleading way to promote their agenda. One of their favorites is “the people”. However, when they speak of the people they are usually talking about the people in mass, not as individuals. The masses are easily controlled and generally follow the leadership of demigods in herd-like fashion. On the other hand, when conservatives speak of “the people” they are referring to a consensus of individuals each acting in their own self-interest.
Because the masses are so easily influenced by populist rhetoric, progressives cloak their agenda in appeals to democracy and democratic ideals, overlooking the fact that the Constitution was constructed as it is specifically to guard against the fickle whims of the uninformed or misinformed masses. This accounts for the continued attempts to eliminate the Electoral College. It also provided the impetus for the popularity of the Seventeenth Amendment providing for the popular election of Senators.
There is no denying the popular appeal of the idea of electing members of the Senate by the popular vote of the people rather than by the State Legislatures. However, this change in the structure of government, more than any other, is responsible for the transformation from a federal to a national government abolishing the sovereignty of the states.
After ratification of the Seventeenth Amendment the accountability of Senators shifted from State Legislatures to the people and ultimately to the political parties. One of the last important changes of the Progressive Era was the formalization of authority, in 1925, in the office of the Senate Majority Leader replacing the constitutional authority of the President of the Senate held by the Vice President for the first 135 years of our existence as a Constitutional Republic. This change cemented the loyalty of Senators to their party leadership rather than the interest of their states or the country.
Whether intentionally or unintentionally, one of the consequences of the Seventeenth Amendment was the shift of power from the state legislatures to the Congress in Washington, in effect, nullifying the Tenth Amendment. For more than a century, the Senate had been the guardian of the Tenth Amendment. As representatives of the state legislatures, Senators were sensitive to efforts by Congress to usurp the authority of the states and succeeded, for the most part, in preventing the federal government from establishing a tyranny over the lives of the people.
The doctrine that facilitated the eventual decline in state power and the increase in federal power was “supremacy of federal law”. Constitutionally that supremacy is limited. The doctrine is found in Article VI of the Constitution which reads:
Just as the proponents of big government overlook the phrase “foregoing powers” in the so-called “elastic clause” of Article One, here they overlook the phrase “in pursuance thereof”. Federal law is supreme only when the law is in pursuance to the requirements and limitations of the Constitution. A countering doctrine to the supremacy of federal law is one that appears often in the writings of the founders and in opinions handed down by early Supreme Courts.
That doctrine holds that unconstitutional acts of Congress are null and void and should not be binding on the states or citizens of the states. In Marbury vs. Madison, for example, Justice John Marshall wrote in the Majority Opinion, “Laws repugnant to the Constitution are null and void.” While the federal government has the police power to enforce adherence to unconstitutional laws, that does not make them constitutional or legal.
The abuse of these two amendments has done more to promote the federal tyranny we are experiencing today under the Obama administration than any other, with the possible exception of the exploitation of the “equal protection” clause of the Fourteenth Amendment.
Posted in Constitution, Politics, Socialism, commentary, enumerated powers, scope of government | Tagged Socialism, liberty, Constitution, amendments, Senate, progressive ear, income tax, electoral college | 2 Comments »