Madison Revived

If anything can be learned from the recent John Roberts/Supreme Court decision to uphold the ObamaCare mandate as constitutional, it is that constitutionalists cannot rely on any branch of the federal government to curb the steady rise of federal government power that has taken place over the last hundred years. 

This is not the way our constitutional system is supposed to work.  The Founders were insightful students of human nature and understood that the drive to amass ever greater power was as fundamental an appetite in many human beings as thirst, hunger, and sex drive.  This presented a problem for the Founders, who wanted to establish a society of "ordered liberty," a society where the citizen enjoyed the maximum freedom from government interference consistent with a stable and orderly community.

The primary political philosopher of the Constitution, James Madison, brilliantly sought to solve this problem by dispersing government power among many power centers.  The state governments had their power (in those days more than the federal government), and so did the House of Representatives, the Senate, and the president.  If any one of these power centers tried to unduly expand its power, the other power centers, jealous of their prerogatives, would be highly motivated to mobilize and thwart those ambitions.  With the primordial power drive of each center checked by the others, the citizens could maintain their own freedom from the travails of overweening government power.  As still another check on government power, the Founders created the Supreme Court, which had the duty of interpreting the Constitution and laws, which assumed the power of striking down any unconstitutional power grab from any branch of government. 

The Roberts decision is an example of how this system of protecting the peoples' liberty can break down.  For a brief moment in time, one political party was able to overwhelm checks and balances and expanded federal power to compel theoretically free citizens to purchase something they did not want.  And the Supreme Court, which had at least four justices who regarded Madison's concerns as unimportant, failed to do its constitutional duty. 

So is this the end of the story?   Are five robed lawyers on the Supreme Count completely supreme and totally untouchable when they go astray?  The answer is no.  There is one power center remaining that can serve as a check on the Supreme Court and the federal government, and that center has one constitutional tool to work with.  That power center is called the "sovereign" states, and that tool is called the "constitutional amendment."  In constitutional terms, nothing trumps a constitutional amendment.  It trumps the Supreme Court, the legislature, the executive, all the king's horses, and all the king's men.

There are two power centers that can propose a constitutional amendment: two thirds of Congress and two thirds of the sovereign states.  However, the states cannot propose a single, specific amendment like Congress can.  They can only call for a general constitutional convention, where the delegates might "go rogue" and rewrite the entire Constitution.  That is why two thirds of the states have never called for a constitutional convention and  exercised their power to be the initiators of  constitutional amendments.

Ed Meese, the attorney general under Reagan, has long advocated giving the states the right to propose single amendments as a means of counterbalancing the power of the federal government and Supreme Court.  But Congress, jealous of its power, would never allow such an amendment to pass through its august chambers.  So a diverse group of volunteers, including top Washington attorneys, have devised a way of bypassing Congress.  The group is called the Madison Coalition, and the amendment that gives the states the right to propose single amendments is called the Madison Amendment.

The basic legislative strategy of the Madison Coalition is simple but not easy.  The Coalition needed to find a practical and workable way for the states to call a constitutional convention and endorse the Madison amendment and at the same time put safeguards in place that would prevent the delegates from going rogue.  The solution to this is straightforward.  The key is to persuade a sufficient number of the state legislatures to pass carefully crafted "Madison laws" restricting their delegates to a constitutional convention to approve the Madison Amendment and that amendment only.  And since those delegates will constitute a mathematical majority of the delegates, it will be mathematically impossible for rogue amendments to be passed.  The Coalition's lawyers, who have drafted model legislation, say that teeth that bite very hard have to be included in the laws that dispatch the delegates to the convention.  The specifics are left to the states, but if a delegate exceeds the authority given to him by his legislature, then he will have to be punished.  A state worker, for example, could lose his job and his pension, a lawyer his license to practice, and, depending upon the state, a rogue delegate could spend time in prison.  With teeth like that, the state legislatures will know that the delegates will not go rogue and that they will have their Madison Amendment. 

The Madison Coalition is a bipartisan effort to revive the Madison system of checks and balances, and so the Coalition's members do not recommend to the states what specific amendments they might propose once they have the power to do so.  The states could, for example, curb the federal government's power to push unfunded mandates on the states, a constant source of aggravation to state legislators from both parties.  They might even impose on the federal government some form of a balanced budget amendment before the entire country ends up as another Greece.  The point is that with the passage of the Madison Amendment, the states will no longer be the totally helpless victims of ever-expanding federal power and Supreme Court decisions that marshal twisted legal logic to bypass constitutional restrictions on the federal government.  The Madison Amendment is by no means a complete solution to these problems, but it will be an important and practical step to restoring the balance of government power that Madison so wisely envisioned.  

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