The Hallowed and Hollowed Constitution

The Constitution deserves its hallowed place in the nation's consciousness. Yet too often, those who invoke it completely disagree on what it says. How is it that the most important document in our government could be so ambiguous? How could it be that more than three hundred million Americans rely upon nine oracles to interpret it for us?

The answer, ironically, is because we let the government hijack the Constitution. It will remain that way unless the states take it back.

Party affiliation has largely ceased to matter in the government. What now matters is whether it's "our guys" in power. In 2003, when Republicans saw control of the White House, the House of Representatives, and the Senate, the party of small government expanded federal control over a host of things, quite apart from the war. Six years later, when Democrats enjoyed the same triumvirate of power, they acted on ObamaCare to the delight of their base, but derelict in their legislative duty in that nobody read it before passing it. In both cases, the parties acted extra-Constitutionally.

The Constitution was penned to avoid such institutionalized power grabs. It contained several provisions to that effect, most notably the Tenth Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." That's pretty unambiguous, and was meant for the Constitution to serve as a guide (or straitjacket) for a federal government that no longer even pretends to acknowledge the Tenth Amendment. So what happened?

What happened is that the framers were more right than they imagined. They recognized the thirst for power to which humanity is subject, and so they built in checks and balances for the various branches of government to keep one another from seizing too much power, in addition to a process by which the Constitution could be amended.

However, they didn't imagine the degree of collusion among the federal branches, and the submissiveness of the States that would ultimately result in the massive federal usurpation of power to which we've borne witness over the last century. Instead of amending the Constitution, the federal government has turned increasingly to "reinterpreting" it -- or ignoring it outright -- to accomplish its ends. Too often those ends amount to nothing more than the further entrenchment of its own power. Thus that hallowed document has been gutted; hollowed out, stuffed with rhetoric, and mounted as a trophy for our ruling class.

The framers did, however, anticipate that the government could devolve into a corrupted vestige of what it was intended to be, which is what the alternate way of amending the Constitution in Article V was all about, and was included at the insistence of George Mason.

This method involves two-thirds of the states applying to Congress, whereupon congress "shall call a convention for proposing amendments." Again, the language is unambiguous. However, hundreds of such applications have been made since the Constitution's ratification, by different states, at different times, for different reasons, and with different wording. This Article V Amendments Convention is the path by which the states were envisioned to exercise their sovereignty to reform a federal government out of control.

Were it not for the threat of such a Convention a number of times in the past, Congress might never have been prompted to preempt the states and pass the Bill of Rights or the Seventeenth Amendment, and might not have been forced to propose the Twenty-first, Twenty-second, and Twenty-fifth Amendments. Of late, there has been a resurgence of the push for a convention, with advocates as diverse as Radio Host Mark Levin and Harvard Professor Lawrence Lessig, with whom I work on the Call a Convention project.

Naturally, along with advocacy comes opposition, and with opposition comes invective. Jeffery Toobin, asked by NPR's Diane Rehm about advocates of the Article V Convention, opined, "Can you say, 'freak show?'" Then after expressing his misgivings on "opening up amending the Constitution... doing it now for the first time since 1787," erroneously concluded that because right and left are polarized on issues such as the Citizens United decision, nothing could come of a convention.

Never mind the aspersion cast on Article V proponents (who, bear in mind, support the use of the Constitution itself to bring about government reform -- hardly Molotov cocktail-wielding radicals). Never mind the bewildering implication that the government hasn't already amended the constitution twenty-seven times since 1787 (just never via convention). What Toobin patently ignores is that anything upon which right and left can agree will be among the most important reforms that can be implemented.

Both right and left want to see an end to the dysfunction and corruption in Washington to the greatest degree possible. This is borne out by single-digit approval ratings of Congress. Similarly, the great dysfunction of the status quo is borne out by 90%+ re-election rates for both the House and Senate in the latest Congressional election cycle. Ending such institutionalized decay is not likely possible with a single amendment. Therefore we must contemplate the sort of deliberative process among rivals that gave birth to the Constitution to begin with.

The Constitution wasn't authored in its final form on stone tablets by an omnipotent deity. It was debated and argued and rife with compromises, the most notorious of which was the three-fifths compromise. That's why Article V was included -- so that the Constitution could change as it must over time. The federal government has exercised its power within Article V several times in the course of history before it came to rely instead on ignoring it.

Not all opponents of an Article V Amendments Convention resort to such inflammatory characterization. Phyllis Schlafly, whose concerns I respect, fear that a convention would attempt to rewrite the Constitution, drastically altering our form of government. To support such an argument it's cited that that's how the Constitution itself came to be, coming to replace the Articles of Confederation. There are, of course, three glaring issues with this concern.

The first is that the Articles of Confederation were fundamentally flawed, which necessitated such a change just ten short years after their adoption. Conversely, since its adoption, our Constitution has stood for more than twenty-two times as long and has proven that such a dramatic overhaul is unnecessary.

Secondly, an Article V Convention is not a "Constitutional Convention" as some portray it. The Constitution grants no authority for anyone to convene a Constitutional Convention. Rather, as Article V unambiguously states, it is a "convention to propose amendments." This is why I refer to it as an Article V Amendments Convention. And this leads to the third point.

Thirdly, and most importantly, even if an amendments convention were to morph into an extra-legal cabal of delegates bent on rewriting the Constitution, nothing they proposed could become law unless ratified by three-fourths of the States (presently 38). Recall that the Constitution, too, had to be ratified, else it would have withered into the footnotes of history. In today's polarized political climate, there are precisely zero radical propositions that could garner the support of enough state legislatures to be ratified. It only takes thirteen states to kill a proposed amendment, and there are more than enough on both the right and the left to do so.

The most valid argument against an Article V Amendments Convention is that Congress would attempt to hijack it by determining the rules and agenda. The response to which is that the Constitution, quite simply, doesn't grant Congress that power, and Congress can wield that power only to the extent to which the states cow and permit it. But if the thirty-four states required to call a convention in the first place so coordinate their efforts to bring it about, one hopes they would show the strength of resolve to stand fast and prevent Congress from further usurping their authority.

So what, then, does this leave us with? Quite simply, with a body of delegates at least once removed from the corrupted status quo of Congress, and who will be free to deliberate and compromise and otherwise seek reasoned solutions to the issues which have beset Washington and may be to a greater degree free from the vested interest of party power. If such a convention cannot overcome partisanship enough to propose sound amendments to the Constitution, then nothing happens, and we must look back to our able-bodied Congress to do the right thing and reform itself.

According to opinion polls, nine out of ten people agree -- that's not going to happen.

The Constitution deserves its hallowed place in the nation's consciousness. Yet too often, those who invoke it completely disagree on what it says. How is it that the most important document in our government could be so ambiguous? How could it be that more than three hundred million Americans rely upon nine oracles to interpret it for us?

The answer, ironically, is because we let the government hijack the Constitution. It will remain that way unless the states take it back.

Party affiliation has largely ceased to matter in the government. What now matters is whether it's "our guys" in power. In 2003, when Republicans saw control of the White House, the House of Representatives, and the Senate, the party of small government expanded federal control over a host of things, quite apart from the war. Six years later, when Democrats enjoyed the same triumvirate of power, they acted on ObamaCare to the delight of their base, but derelict in their legislative duty in that nobody read it before passing it. In both cases, the parties acted extra-Constitutionally.

The Constitution was penned to avoid such institutionalized power grabs. It contained several provisions to that effect, most notably the Tenth Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." That's pretty unambiguous, and was meant for the Constitution to serve as a guide (or straitjacket) for a federal government that no longer even pretends to acknowledge the Tenth Amendment. So what happened?

What happened is that the framers were more right than they imagined. They recognized the thirst for power to which humanity is subject, and so they built in checks and balances for the various branches of government to keep one another from seizing too much power, in addition to a process by which the Constitution could be amended.

However, they didn't imagine the degree of collusion among the federal branches, and the submissiveness of the States that would ultimately result in the massive federal usurpation of power to which we've borne witness over the last century. Instead of amending the Constitution, the federal government has turned increasingly to "reinterpreting" it -- or ignoring it outright -- to accomplish its ends. Too often those ends amount to nothing more than the further entrenchment of its own power. Thus that hallowed document has been gutted; hollowed out, stuffed with rhetoric, and mounted as a trophy for our ruling class.

The framers did, however, anticipate that the government could devolve into a corrupted vestige of what it was intended to be, which is what the alternate way of amending the Constitution in Article V was all about, and was included at the insistence of George Mason.

This method involves two-thirds of the states applying to Congress, whereupon congress "shall call a convention for proposing amendments." Again, the language is unambiguous. However, hundreds of such applications have been made since the Constitution's ratification, by different states, at different times, for different reasons, and with different wording. This Article V Amendments Convention is the path by which the states were envisioned to exercise their sovereignty to reform a federal government out of control.

Were it not for the threat of such a Convention a number of times in the past, Congress might never have been prompted to preempt the states and pass the Bill of Rights or the Seventeenth Amendment, and might not have been forced to propose the Twenty-first, Twenty-second, and Twenty-fifth Amendments. Of late, there has been a resurgence of the push for a convention, with advocates as diverse as Radio Host Mark Levin and Harvard Professor Lawrence Lessig, with whom I work on the Call a Convention project.

Naturally, along with advocacy comes opposition, and with opposition comes invective. Jeffery Toobin, asked by NPR's Diane Rehm about advocates of the Article V Convention, opined, "Can you say, 'freak show?'" Then after expressing his misgivings on "opening up amending the Constitution... doing it now for the first time since 1787," erroneously concluded that because right and left are polarized on issues such as the Citizens United decision, nothing could come of a convention.

Never mind the aspersion cast on Article V proponents (who, bear in mind, support the use of the Constitution itself to bring about government reform -- hardly Molotov cocktail-wielding radicals). Never mind the bewildering implication that the government hasn't already amended the constitution twenty-seven times since 1787 (just never via convention). What Toobin patently ignores is that anything upon which right and left can agree will be among the most important reforms that can be implemented.

Both right and left want to see an end to the dysfunction and corruption in Washington to the greatest degree possible. This is borne out by single-digit approval ratings of Congress. Similarly, the great dysfunction of the status quo is borne out by 90%+ re-election rates for both the House and Senate in the latest Congressional election cycle. Ending such institutionalized decay is not likely possible with a single amendment. Therefore we must contemplate the sort of deliberative process among rivals that gave birth to the Constitution to begin with.

The Constitution wasn't authored in its final form on stone tablets by an omnipotent deity. It was debated and argued and rife with compromises, the most notorious of which was the three-fifths compromise. That's why Article V was included -- so that the Constitution could change as it must over time. The federal government has exercised its power within Article V several times in the course of history before it came to rely instead on ignoring it.

Not all opponents of an Article V Amendments Convention resort to such inflammatory characterization. Phyllis Schlafly, whose concerns I respect, fear that a convention would attempt to rewrite the Constitution, drastically altering our form of government. To support such an argument it's cited that that's how the Constitution itself came to be, coming to replace the Articles of Confederation. There are, of course, three glaring issues with this concern.

The first is that the Articles of Confederation were fundamentally flawed, which necessitated such a change just ten short years after their adoption. Conversely, since its adoption, our Constitution has stood for more than twenty-two times as long and has proven that such a dramatic overhaul is unnecessary.

Secondly, an Article V Convention is not a "Constitutional Convention" as some portray it. The Constitution grants no authority for anyone to convene a Constitutional Convention. Rather, as Article V unambiguously states, it is a "convention to propose amendments." This is why I refer to it as an Article V Amendments Convention. And this leads to the third point.

Thirdly, and most importantly, even if an amendments convention were to morph into an extra-legal cabal of delegates bent on rewriting the Constitution, nothing they proposed could become law unless ratified by three-fourths of the States (presently 38). Recall that the Constitution, too, had to be ratified, else it would have withered into the footnotes of history. In today's polarized political climate, there are precisely zero radical propositions that could garner the support of enough state legislatures to be ratified. It only takes thirteen states to kill a proposed amendment, and there are more than enough on both the right and the left to do so.

The most valid argument against an Article V Amendments Convention is that Congress would attempt to hijack it by determining the rules and agenda. The response to which is that the Constitution, quite simply, doesn't grant Congress that power, and Congress can wield that power only to the extent to which the states cow and permit it. But if the thirty-four states required to call a convention in the first place so coordinate their efforts to bring it about, one hopes they would show the strength of resolve to stand fast and prevent Congress from further usurping their authority.

So what, then, does this leave us with? Quite simply, with a body of delegates at least once removed from the corrupted status quo of Congress, and who will be free to deliberate and compromise and otherwise seek reasoned solutions to the issues which have beset Washington and may be to a greater degree free from the vested interest of party power. If such a convention cannot overcome partisanship enough to propose sound amendments to the Constitution, then nothing happens, and we must look back to our able-bodied Congress to do the right thing and reform itself.

According to opinion polls, nine out of ten people agree -- that's not going to happen.