The Problem
Washington DC is Out of Control and Will not Relinquish Power
The Spending and Debt Crisis
Thomas Jefferson wrote in 1816, “I…place economy among the first and most important of republican virtues, and public debt as the greatest of the dangers to be feared.” Congress has ignored these words. Instead, it has abused its power, using entitlement programs to gain votes and catapult the United States into massive debt.
The $17 trillion national debt is staggering, but it only tells a part of the story. If we apply the normal rules of accounting, the federal government possesses a huge additional obligation to pay for vested Social Security benefits and other similar programs. This is why the government cannot tax its way out of debt. Even if they confiscated everything, it would not cover the debt.
The judiciary recites the mantra that the powers of the federal government are limited. The plain fact, however, is that since 1936 no federal court has ruled a Congressional program unconstitutional for exceeding their power to tax and spend for a particular purpose. Stopping the runaway federal spending is the only solution, but it is one thing Washington, D.C., will never agree to do.
The Regulatory Crisis
Congress and, more importantly, the federal bureaucracy have placed a regulatory burden upon businesses that is complex, conflicted, and crushing. Furthermore, little political accountability exists when agencies—rather than Congress—enact the real substance of the law. Research from economists John Dawson (Appalachian State University) and John Seater (North Carolina State University), reported by the American Enterprise Institute, shows that since 1949 federal regulations have lowered the real GDP growth by 2% and made America 72% poorer.
Congressional Attacks on State Sovereignty
Congress has been taking money from the citizens of states, and then offering that money back to states on the condition that legislators follow the will of Congress. Using these federal grants accompanied by mandates (which are rarely fully funded), Congress has turned state legislatures into their regional agencies rather than truly independent republican governments.
A radical social agenda and an erosion of the rights of the people accompany all of this. While substantial efforts have been made to combat the social engineering and to protect peoples’ rights, we have missed one of the most important principles of the American founding.
Who Has the Legitimate Power to Make Law?
The Founders believed that the structures of a limited government would provide the greatest protection of liberty. There were to be specific enumerated powers that the government could not exceed. There were to be checks and balances at the federal level. And everything not specifically granted to Congress for legislative control was to be left to the states.
Collusion among decision-makers in Washington, D.C., has replaced these checks and balances, and the federal judiciary supports Congress and the White House in its ever-escalating attack upon the jurisdiction of the fifty states.
We need to realize that the structure of decision-making matters. Who decides what the law shall be is even more important than what is decided. The protection of liberty requires a strict adherence to the principle that power is limited and delegated.
Washington, D.C., does not believe this principle, as evidenced by an unbroken practice of expanding the boundaries of federal power. In a remarkably frank admission, the Supreme Court rebuffed another challenge to the federal spending power by acknowledging their approval of programs that violate the will of the Founders:
This framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role.
New York v. United States, 505 U.S. 144, 157 (1992).
Those in Washington, D.C., accept as “Truth” the necessity of expanding the role of all three branches of the federal government. Congress enacts laws that are beyond the powers delegated to them in the text of the Constitution. The President signs such laws, and the Supreme Court adopts manipulative interpretations of the Constitution to uphold the expansion of federal power.
In 1936, the Supreme Court warned what would happen if we adopt a broad approach for federal spending and control:
If the spending power is to be limited only by Congress' notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.
United States v. Butler, 297 U.S. 1, 78 (1936).
That was the last time any federal court invalidated a law on the basis that it was an unconstitutional exercise of the power to spend.
It is the runaway spending—justified by the General Welfare Clause—that has resulted in today’s crushing debt. George Washington advised, “[avoid] likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear.” Every day, modern
Americans witness the exact opposite of George Washington’s wishes for this country. Liberty is eroding while debt is escalating.
This is not a partisan issue. Washington, D.C., will never voluntarily relinquish meaningful power—no matter who is elected. The only rational conclusion is this: unless some political force outside of Washington, D.C., intervenes, the
federal government will continue to bankrupt this nation, embezzle the legitimate authority of the states, and destroy the liberty of the people.
Rather than securing the blessings of liberty for future generations,
Washington, D.C., is on a path that will enslave our children and grandchildren to the debts of the past.
This is not merely bad policy. It is immoral.
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Why the States Need To Use Their Constitutional Power to Rein in Abuses of Power by Washington DC
The Problem
Washington DC loves its own power and will never relinquish its power. In fact, all branches of the government in Washington DC are committed to the escalating growth of a centralized national government. This truth does not fundamentally change when Republicans are in control of the Congress or the White House.
The addiction to power is fueled by a fundamental reliance on growth in spending, increasing regulation of a broadening swath of American life, and a deadly reliance on debt.
If the national debt was calculated by the normal rules of accounting, where accrued debt was included (e.g., vested social security benefits), the national debt would be well over $100 trillion and may be as high as $200 trillion.
Washington DC buys votes and power with money. It uses its power to extract money from both today and tomorrow. This nation will deny any semblance of freedom to our children and grandchildren. There will be taxes imposed on them for spending they never approved or from which they received any direct benefit. This is taxation without representation in a multi-generational form that can only be described as tyrannical.
The Need for a Structural Solution
The most important rule in any organization is the rule about who makes the rules.
We have allowed Washington DC to be the sole possessor of the power of ultimate rulemaking. As a consequence, the states are becoming, on an increasing basis, the mere implementers of federal policy decisions. Any thought that we are following true federalism is a cruel mockery of the values of those who created our Constitutional federal republic.
We must change the structure of power. No one seriously believes that electing the right member to the House or Senate, or the right occupant of the White House, will fix the structural problems or result in the decentralization of the processes of power.
While changes in personnel through elections can serve good and useful purposes, the only path for a meaningful solution is a structural change which reassigns the authority to make policy decisions for this nation.
In the wake of the 2012 elections, there was a good deal of buzz around the ideas of state nullification and even some hinting at secession. While we can appreciate the frustration with Washington DC that prompts such thoughts, we need to recognize them for what they are. These are extra-constitutional solutions that are revolutionary in character. And while we have come to overuse the term “revolutionary” to describe major innovations, these revolutions are of the same sort as the original American Revolution. Ultimate this path leads to war. And no sensible person wants war when there are viable constitutional and peaceable alternatives available.
There is a constitutional process that gives the states the unilateral power to change the structure of American government. It is a process given to us by the Founding Fathers for the very situation we face today. When the national government becomes drunk with abuses of power, the states were given the authority to reorganize the government in a manner that preserves the Republic and preserves liberty.
We respectfully suggest that not only do the states have this authority; they also have the responsibility to save this nation by using their constitutional prerogatives to stop the federal abuses of power.
Article V & State Power
Article V provides:
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, 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….
There are two groups of elected bodies that have the power to propose constitutional amendments: Congress and the State legislatures. Either group may propose a single amendment, groups of amendments, or an entirely new Constitution. Congress has used its power to propose a group of amendments—these are called the Bill of Rights. Twelve were proposed. Ten were initially ratified. The eleventh was ratified in 1992 and became the 27th Amendment to the Constitution. All other amendments were proposed by Congress as single amendments. While Congress has the power to propose an entirely new Constitution at any time, it has never done so.
State legislatures also have the power to propose constitutional amendments through the convention process. Whenever two-thirds of the states (i.e. 34/50) apply for a Convention for amendments, Congress has the ministerial (non-discretionary) duty to call such a Convention.
There have been over 400 state legislative applications for an Article V convention for the purpose of amendments in the history of the Republic. Yet, a convention for this purpose has never been called. The reason is simple: there has never been a group of applications for the same purpose that reaches the required numerical threshold.
For over 200 years, Congress has followed a single subject rule. Conventions can only be called when 34 states apply for a Convention for the same purpose. This is a powerful legislative precedent that cannot be overstated as to its importance. The meaning of Article V in this regard has been established by the strongest possible precedent—over 200 years of unbroken practice.
We believe that it is the time for the state legislatures to use this Article V power to propose a group of specific amendments to rein in the abuses of power by the federal government.
Steps in the Process
Here is how it would work:
Thirty-four state legislatures would pass similarly worded resolutions which call for an “Article V convention to propose amendments which limit the authority and jurisdiction of the federal government.”
- Congress would have a non-discretionary duty to call the convention.
- The call could only name the time and place for the Convention.
- The convention is a convention of the states.
- This necessarily means that each state has its own ability to prescribe whatever means it wishes to choose its own delegates.
- All voting would be on the one-state, one-vote rule, just as the original constitutional convention. (And which is the only possible rule when the members of the convention are the states and not the delegates).
- Only amendments that are germane under the language of the applications (i.e., they call for limitations on the authority and jurisdiction of the federal government) may be approved.
- A simple majority vote (of states) is required to propose amendments.
- Congress would then have the duty to name one of two methods for ratification of the proposed amendments. They could call for state-based ratification conventions, or for ratification by the state legislatures.
- When 38 state legislatures (or state conventions) ratify any or all of the proposed amendments, they become a part of the Constitution of the United States.
Answering Common Questions
Can the Convention be limited to a specific subject?
Yes. We have a 200 year legislative precedent that says that the single subject (or purpose) rule has been followed by Congress. The Convention will only be called when 34 states make applications for a single subject or purpose.
Just like Congress, the Convention must also follow the single subject rule. We have a judicial precedent which is important also.
In 1978, Congress passed a resolution which purported to extend the deadline for the ratification of the Equal Rights Amendment by approximately three-and-a-half years. This attempt to change the rules in the middle of the Article V process was challenged in court by state legislatures from Idaho, Washington, and Arizona. The federal district court in Freeman v. Idaho¸ CITE, held that it was unconstitutional for Congress to attempt to change the rules in the midst of the Article V process.
It must be remembered that Congress and the Convention possess equivalent power regarding the basic components of the amending process. If Congress cannot change the rules of the process when it has initiated the Article V process, the States (through a convention) are equally prohibited from changing the process once it has been started. The Supreme Court vacated the decision on mootness grounds when 38 states failed to ratify even under the extended deadline. Thus, the precedent is not equivalent to a Supreme Court decision, but it is a reasonable view of the correct outcome in the process of litigation.
The author of this paper was counsel for the Washington legislators in that litigation.
What are the safeguards if a Convention attempts to go beyond the applications from the States?
The ultimate safeguard is this: 34 states applied for the convention for a particular purpose. It would require 38 states to ratify any amendment that would be proposed out of a Convention. It would only take 13 states to vote “no” on any proposed amendment to defeat it. The chances of 38 state legislatures approving a rogue amendment are effectively zero.
Moreover, the Idaho v. Freeman, case demonstrates that the courts will review a constitutional challenge brought by state legislators to an abuse of the Article V process. There is every reason to believe that the rule of Freeman would be followed: any change in midst of the Article V process is unconstitutional.
Why should we trust this process, after all the original Constitutional Convention was a runaway convention that abused its mandate to amend the Articles of Confederation?
This attack on the integrity of the United States Constitution is based on utterly fallacious history. Here are the relevant facts:
- The call for the Constitutional Convention specified that it was “for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of
- Government & the preservation of the Union.”
- Thus, the document contemplated was an adequate federal constitution.
- There was no limit on the number of amendments to the Articles which could be proposed.
- There was no requirement which prohibited the Convention from proposing amendments as a complete package rather than as a series of amendments. Political reality suggested that it was most likely that a package deal would be forthcoming so that the negotiations and balancing of interests between the states could be achieved.
- Some provisions of the Articles of Confederation were carried forward into the Constitution.
- Thus, while there were substantial changes, it was in fact an amendment to the Articles.
- The Constitutional Convention did not send the Constitution to the states to be ratified as is commonly (and falsely) believed.
- The Constitution (together with a new proposal for ratification) was sent to Congress.
- Thus, the very group—Congress—which called the Convention into being is the one which received the work product. If Congress believed that the Convention had abused its authority, it has the complete authority to reject their work. Instead, Congress exercised its power under the amending process of the Articles of Confederation to approve both the new Constitution and the new methodology for ratification.
- The new methodology for ratification had two changes. First, the number of states required for ratification was changed from 13 to 9. Second, the group asked to do the ratifying was changed from the legislatures to specially-called ratification conventions in each state.
- Congress still did not send the Constitution to the state conventions. It sent the Constitution and the new proposal for ratification to the state legislatures.
- Congress asked the state legislatures to approve the change in the ratification process by calling ratification conventions.
- For the change in process to comply with the provisions of the Articles of Confederation, all 13 state legislatures would have to approve the new process.
- That is exactly what happened. All 13 state legislatures called ratification conventions thus approving the new process.
- The Constitution was then adopted by 11 state conventions (two more than required). Two states—North Carolina and Rhode Island—rejected the Constitution itself, but both of these states approved the new process.
Thus, we can see that the original process was not a runaway convention as is often contended by those who argue against the use of Article V power. This argument is based on false history and an inconsistent view of the Constitution.
Opponents of an Article V convention say that it is dangerous to place our dearly beloved Constitution (which was illegally adopted by a runaway convention) into any danger by calling such a convention. How can the Constitution be dearly loved and illegal at the same time?
The reality is that the modern originators of this runaway convention idea were liberals who wanted to thwart any limitation on federal power. One of the leading advocates of this theory is former Chief Justice Warren Burger who joined the majority opinion in Roe v. Wade. No one can be a constitutionalist and vote for Roe v. Wade. Constitutional conservatives should not listen to anti-constitutional liberals like Burger.
Even if there are safeguards, why should we take any risk by calling an Article V convention?
The reality is this: Congress and the federal government are in fact on a path to destroy this nation. There is no question about whether this will happen, there is only a question as to when our nation will collapse as a result of federal abuses—particularly the abuses of the use of the debt power.
The threat from Congress should be rated as a 100% certainty. The threat from a runaway convention cannot be said to be “zero” but it is very close to “zero” as a matter of both legislative and judicial practice.
The threat posed by Congress is far more deadly than any threat posed by an Article V convention. The states must not listen to fear mongers who will destroy this nation by allowing Congress to continue to abuse its power unchecked.
What Amendments could be proposed to limit federal power?
- Require a balanced federal budget with real teeth and enforcement power
- Repeal all tax laws in five years through a “sunsetting provision”
- Require a super-majority vote for replacing these taxes and all new taxes
- Prohibit the federal government from spending money on items that are lawfully funded by states. (Example, if the states can spend money on education, then the federal government cannot do so.)
- Prohibit the federal government from regulating businesses, individuals, or property for purposes that states can also regulate. (Example, if the states can regulate wages and hours, then the federal government cannot do so. If the states can regulate health care and health insurance, then the federal government cannot do so.)
- Prohibit the use of executive orders or federal regulations as a source of federal law that binds private citizens or private property. All federal laws would be required to be passed by Congress.
- Prohibit the treaty power from governing the domestic powers of this nation.
All of these proposals would be germane under this plan, but would require a majority vote of the states to be actually approved and sent out for ratification.
Conclusion
The states have the power to save the Republic by reining in the abuses by Washington DC. They must do so.
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