by Michael Farris –
When sensible citizens think about stopping the abuses of federal power by using Article V’s convention process, they often begin with a logical question: The federal government is not obeying the Constitution right now, so why would it obey these new amendments?
To understand the answer, we to realize that there are actually two Constitutions operating in America today: There is the Constitution as it was written, and there is the Constitution as interpreted by the Supreme Court.
The fact is that the vast majority of time the federal government does actually obey the Constitution—but normally it obeys the wrong one. Usually, the federal government obeys the Constitution as interpreted by the Supreme Court rather than the Constitution as written.
There are exceptions to this rule. In a few areas, the Constitution as written is being followed. For example, the two most recent decisions of the Supreme Court on the Second Amendment follow the original meaning of that provision very closely. (District of Columbia v. Heller and McDonald v. Chicago.)
But in the vast majority of cases, the Supreme Court’s view of the Constitution is essentially unrelated to the original meaning of the document. In the Obamacare case, the Supreme Court said that the power of Congress to tax and spend had no effective limitations. (NFIB v. Sebelius). That was not the original meaning of the Constitution. In the area of federal regulation, the Supreme Court has said that the Commerce Clause gives Congress vast power to regulate almost any transaction involving money. That too is an abusive reading of the Commerce Clause.
The power to make treaties was intended by the Founders to be limited to agreements about how nations treat nations—the law of war, piracy, law of the high seas, and trade—not about the internal domestic policies of this country. Congress and a series of presidents have abused the treaty power by effectively rewriting the Constitution by changing the working definition of the term “treaty.”
Every one of these abuses could be changed for the better by carefully drafted constitutional language.
For example, the General Welfare Clause could be worded like this:
Congress may tax and spend for the general welfare provided that this does not grant power to tax or spend for any purpose that is within the jurisdictional competence of the states.
If this was the controlling language, all federal spending on education and welfare programs—for example—would be eliminated because they programs are within the jurisdictional competence of the states.
The Commerce Clause could be amended to add this additional sentence:
The power to regulate interstate commerce is a grant of power only to regulate shipments of goods or passengers between the states.
Or what if the treaty power had this additional language:
No treaty dealing with any issue of domestic policy may be enforced by the United States or by any federal or state court unless it has been ratified by two-thirds of both houses of Congress and by the legislatures of three-fourths of the several states.
No one can promise that any specific language like this will be the final result of a Convention of States (COS). I share these ideas simply to illustrate a point: these changes are possible and if adopted would be incredibly effective. Clear, well-written constitutional provisions can stop the abuses of federal power.
The Convention of States Project that I lead is promoting a convention for three specific purposes: “to impose fiscal restraints on the federal government, to limit the power and jurisdiction of the federal government, and to impose term limits on federal officials.” This language sets the official agenda for the COS which will be called when the legislatures of 34 states approve our model application.
The COS can discuss and then draft provisions to require a balanced budget, tax limitations, spending limitations, an end to the use of executive power to pass laws, and to impose real checks and balances on the federal judicial power.
(Did you know that the Supreme Court has said, approximately 30 times, that the only check on the Supreme Court’s power is its own sense of self-restraint? I, for one, don’t want to live in a country where there is no realistic check on federal judicial power.)
Three states, Georgia, Florida, and Alaska, passed our model COS application in 2014. It will be introduced in more than 20 additional states in 2015. We hope to reach the required 34 state applications by 2016 or 2017.
In the next two installments in this series, I will explain the details of the process, why your involvement is so important, and why the process is safe.
We can save our nation. We can preserve liberty for ourselves and our posterity.
(Please visit www.conventionofstates.com for more information).
Michael Farris is the head of the Convention of States Project, the Chancellor of Patrick Henry College, and the Chairman of the Homeschool Legal Defense Association. During his career as a constitutional appellate litigator, he has served as lead counsel in the U.S. Supreme Court, eight federal circuit courts, and thirteen state appellate courts. Mike and his wife Vickie have ten children and seventeen grandchildren.