The Liberty Amendments Part 3

In the late 1980s, President Ronald Reagan issued Executive Order 12630, requiring federal agencies to consider the "taking implications" when an agency promulgated new regulations.19 The order "was needed to protect public funds by minimizing government intrusion upon private property rights and to budget for the payment of just compensation when such intrusions were inevitable."20 Although a n.o.ble acknowledgment of the importance of property rights, Executive Order 12630 lacked any enforcement mechanisms, because it did not provide a cause of action. Consequently, property owners could not use the agency finding in proving their claim that federal government action was considered a taking.

It is indicative that so extensive is the government's taking practices that there is no reliable calculation on its aggregate costs to society-either its costs to property owners or the costs to government in those relatively limited cases in which it actually compensates property owners. Meanwhile, there is no question that regulatory takings are swelling as government itself swells.

The proposed amendment does a number of things. It acknowledges the crucial distinction between the government exercising its legitimate police powers to protect private property rights and its obligation to compensate property owners when government action-whether a statute, administrative regulation, or executive order-interferes with the ownership and use of private property for an a.s.serted public interest. If the government action serves a public interest, then the public must a.s.sume responsibility for the cost and compensate the property owner who suffers a loss in excess of ten thousand dollars. The proposed amendment will force the government to make more extensive and comprehensive cost-benefit calculations when exercising its legal authority, given that the cost burden shifts from the individual to the government.

Moreover, the proposed amendment creates an expanded legal basis for private property owners to a.s.sert a const.i.tutionally acknowledged and protected right. The notion that a taking must be physical, total, or near total to trigger a "just compensation" defies the Framers' intent and the Fifth Amendment's purpose. It also renders moot the convoluted precedents and ad hoc tests promulgated by the Supreme Court, and instead establishes a more stable and predictable legal environment for property owners and users.

Finally, the proposed amendment is not limited to takings by the federal government. It applies to all levels of government. While I acknowledge that the state legislatures themselves will undoubtedly determine the scope of this proposed amendment, or one similar in purpose, if and when they decide to appoint delegates to attend a convention, I would encourage them to control their own abuses of state citizens. When an individual's property is diminished or devalued by government action, the individual does not much care which level of government is responsible for violating his property rights. After all, the right to own property and use it was so important that the states themselves insisted on making the protection unambiguous by incorporating the Takings Clause in the Fifth Amendment.

CHAPTER NINE.

AN AMENDMENT TO GRANT THE STATES AUTHORITY TO DIRECTLY AMEND THE CONSt.i.tUTION.

SECTION 1: The State Legislatures, whenever two-thirds shall deem it necessary, may adopt Amendments to the Const.i.tution.

SECTION 2: Each State Legislature adopting said Amendments must adopt Amendments identical in subject and wording to the other State Legislatures.

SECTION 3: A six-year time limit is placed on the adoption of an Amendment, starting from the date said Amendment is adopted by the first State Legislature. Each State Legislature adopting said Amendment shall provide an exact copy of the adopted Amendment, along with an affidavit signed and dated by the Speaker of the State Legislature, to the Archivist of the United States within fifteen calendar days of its adoption.

SECTION 4: Upon adoption of an Amendment, a State Legislature may not rescind the Amendment or modify it during the six-year period in which the Amendment is under consideration by the several States' Legislatures.

AS DISCUSSED EARLIER, ARTICLE V of the Const.i.tution sets forth the two processes for amending the Const.i.tution: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Const.i.tution, 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 Const.i.tution, 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. . . .1 As the text and history make clear, the amendment processes are difficult. A supermajority of two-thirds of the members of both houses of Congress is required to propose amendments, or two-thirds of the state legislatures are required to call for a convention to amend the Const.i.tution-which means thirty-four states. Moreover, three-fourths of the states-or thirty-eight states-must ratify the proposed amendments either by votes of the state legislatures or state conventions for them to be incorporated into the Const.i.tution.

The level of complexity in the amendment processes was intentional. The Framers envisioned a clear and specific purpose for the system of government they established. The Const.i.tution was not meant to be a detailed list of laws and edicts to micromanage people's behavior. It was not meant to change with factional or majoritarian impulses. And it was not meant to serve the political expedients of a cla.s.s of governing masterminds and their fanatical followers. The Const.i.tution's authors intended it to serve as a steady, reliable, and not easily altered apparatus of governance built upon "unalienable" rights by which a huge, diverse, and vigorous society could successfully govern itself. The amendment processes were intended to elevate any matter addressed in a proposed amendment beyond the realm of day-to-day political issues.

In the 226 years since the 1787 Convention, there have been only twenty-seven amendments added to the Const.i.tution, including the first ten amendments-the Bill of Rights. Those were ratified simultaneously on December 15, 1791. The small number of successful amendments, however, is not due to a lack of effort. Approximately 11,539 proposed amendments to the Const.i.tution have been introduced in both houses of Congress between 1789 and January 2, 2013.2 However, as discussed at length in preceding chapters, we live in a post-const.i.tutional period due to the Progressive movement's successful political counterrevolution. The Statists have constructed an all-powerful centralized federal government, unleashing endless social experiments in pursuit of utopian designs. The federal branches have used judicial review, congressional delegation, broad abuses of the Commerce and Takings clauses, and the power of the purse (taxing, spending, and borrowing), among other things, to commandeer the sovereignty of the states and the citizenry. Indeed, the states and the citizenry are now consumed by an elephantine array of federal laws, regulations, and rulings, which torment, coerce, obstruct, and sabotage the individual's autonomy. The states that gave the federal government life now live mostly at its behest.

In 1908, Woodrow Wilson made clear the plans he and others set in motion when he declared, "No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle."3 Wilson added, "Living political const.i.tutions must be Darwinian in structure and practice," meaning the federal government must be in a constant state of motion and evolution.4 Consequently, the individual is without independent, G.o.d-given natural rights, which form the basis for America's founding. The Const.i.tution's text and the Framers' intent are of no consequence-unless, of course, they can be said to justify if not compel the republic's self-mutilation. But Wilson conflates the nature of a healthy and dynamic civil society, where individuals are mostly free to pursue their interests, with what was to be the character of the federal government-a stable, predictable, and just governing inst.i.tution, the purpose of which was the civil society's conservation. Wilson's prescription, and that of the Statists, empowers the federal government to extend its authority in ways large and small, devouring the very civil society it was established to safeguard. Unmoored from the Const.i.tution, federal power becomes more centralized and concentrated, and increasingly difficult to define or proscribe.

The Tenth Amendment underscores generally and simply the division of authority between the federal and state governments: The powers not delegated to the United States by the Const.i.tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.5 The Const.i.tution would not have been ratified had the Federalists refused to agree to the inclusion of this explicit recognition of state sovereignty, carried over from the Articles of Confederation, as part of a series of amendments-which would be adopted when the First Congress convened. It is a declaration of the indispensable role of the states in American life, which is loosely referred to as federalism.

The most successful rhetorical attack on federalism today involves past slavery and segregation. As I explained in Liberty and Tyranny, it is more complex than the Statists recount. "It is a misreading of history to singularly condemn federalism for slavery. While there is no debating or excusing that southern states sanctioned slavery, at times they did so with the help of the federal government. Moreover, there is also no questioning that other states, mostly in the North, inst.i.tuted policies and laws not only prohibiting slavery within their own borders, but defying efforts by southern states and the federal government to enforce slavery in the South."6 For example, "prior to the Civil War, and at the behest of the southern states, in 1793 and 1850 the federal Fugitive Slave Laws were enacted to force recalcitrant northern states to return escaped slaves to their southern owners. Many northern states resisted by pa.s.sing personal liberty laws, which created legal obstacles to the deportation of slaves back to the South. In the 1842 Prigg v. Pennsylvania case, the federal Supreme Court ruled these laws unconst.i.tutional, arguing that they sought to preempt federal 1aw, although it added that the northern states were not required to affirmatively a.s.sist the southern state that sought the return of the escaped slaves. In 1857, the Court ruled in Dred Scott v. Sandford that no slaves or descendants of slaves could be U.S. citizens, and that Congress's Missouri Compromise of 1820, which prohibited slavery in much of the new territories, was unconst.i.tutional, for it denied slave owners their personal property rights. . . . [N]ot until 1862 did the federal government abolish slavery in the District of Columbia, which was wholly controlled by federal authorities. . . . "7 The nation could not forever tolerate slavery. And it did not. Nonetheless, slavery was a contentious issue not only between the states, but also within the states-including in towns and counties in southern states. It was contentious not only between the federal government and the states, but within the federal government-as between Congress and the president, and between the elected branches and the Supreme Court. The same can be said of postCivil War segregation, which was opposed by many states and practiced by others-and upheld in 1896 by the federal Supreme Court in Plessy v. Ferguson.8 Indeed, President Wilson, a leading Progressive and harsh critic of the Const.i.tution and federalism, was a racist and segregationist. Reason magazine's Charles Paul Freund wrote that "Wilson allowed various officials to segregate the toilets, cafeterias, and work areas of their departments. One justification involved health: White government workers had to be protected from contagious diseases, especially venereal diseases, that racists imagined were being spread by blacks. In extreme cases, federal officials built separate structures to house black workers. Most black diplomats were replaced by whites; numerous black federal officials in the South were removed from their posts; the local Washington police force and fire department stopped hiring blacks. Wilson's own view, as he expressed it to intimates, was that federal segregation was an act of kindness. . . . "9 It is not possible to conduct a fulsome history of slavery and segregation in these pages. It must be underscored, however, that the oppression of African-Americans could never be compatible with a civil society and the principles set forth in the Declaration of Independence, as Abraham Lincoln explained. In 1858, during his campaign for the Senate, Lincoln declared: "In [the Founders'] enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows. They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. They erected a beacon to guide their children and their children's children, and the countless myriads who should inhabit the earth in other ages. Wise statesman as they were, they knew the tendency of prosperity to breed tyrants, and so they established these great self-evident truths, that when in the distant future some man, some faction, some interest, should set up the doctrine that none but rich men, or none but white men, were ent.i.tled to life, liberty and the pursuit of happiness, their posterity might look up again to the Declaration of Independence and take courage to renew the battle which their fathers began-so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land; so that no man would hereafter dare to limit and circ.u.mscribe the great principles on which the temple of liberty was being built. . . . "10 This brief and incomplete detour into this subject is necessitated by the antic.i.p.ated hyperbole that frequently accompanies present-day discussions about, and efforts to, unravel and decentralize the federal Leviathan and reestablish federalism and republican governance-which is intended to uphold the sovereignty and dignity of the individual regardless of race, ethnicity, gender, age, ancestry, or station. In this regard, there is no denying that some states today are more amenable to personal and economic liberty than others. For example, the libertarian Mercatus Center at George Mason University measures "state and local government intervention across a wide range of public policies, from income taxation to gun control, from homeschooling regulation to drug policy." Its rankings "explicitly ground our conception of freedom on an individual-rights framework. In our view, individuals should be allowed to dispose of their lives, liberties, and properties as they see fit, as long as they do not infringe on the rights of others." For 2012, it ranked North Dakota, South Dakota, Tennessee, New Hampshire, and Oklahoma as the freest states, and New York, California, New Jersey, Hawaii, and Rhode Island at the bottom of the list.11 The struggle today, however, is not about the acknowledged burdens of any particular state, but between the continuing ascendency of Statist utopianism and restoring the governing principles of the American Republic. It should be understood that this proposed amendment is not intended as a reflection on the infallibility of state governments and their officials. The history of man is a history of human imperfection. In fact, the reason the Framers established checks, balances, enumerations, and divisions of power in the Const.i.tution is that they understood, by knowledge and experience, that a relative handful of imperfect human beings exercising unrestrained authority over society would result in tyranny. But individuals can escape the burdens of a given state, for mobility is among the most important characteristics of federalism, as demonstrated by population growth and decreases in respective states. There is no escaping the reach of the federal government, however, unless the individual makes the difficult and wrenching decision to give up on the country altogether and leave for other sh.o.r.es.

Federalism also defuses conflict and even promotes harmony. Proponents of the death penalty can live in Texas, which has the most active execution chamber, and not care much that New Jersey abolished the punishment. Proponents of right-to-work laws can live in Virginia, and not care much that Pennsylvania is a union-friendly state. States are governmental ent.i.ties that reflect the personalities, characteristics, histories, and priorities of the individuals who choose to inhabit them. They have diverse geographies, climates, resources, and populations. No two states are alike. States are more likely to better reflect the interests of their citizens-localities even more so-albeit imperfectly, than the federal government. Consequently, individuals with widely divergent beliefs are able to coexist in the same country because of the diversity and tolerance that federalism promotes.

It is undeniable that the states created the federal government and enumerated its powers among three separate branches; the states reserved for themselves all governing powers not granted to the federal government; and the Const.i.tution they established enshrined both. The Federalist Papers emphasize this truism. In Federalist 39, James Madison argued that the federal government has only "certain enumerated" powers and the states retained "residuary and inviolable sovereignty" over all else. "Each State, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Const.i.tution will, if established, be a FEDERAL, and not a NATIONAL const.i.tution."12 In Federalist 45, Madison a.s.serted that the proposed federal powers were "few and defined" and the power in the states remained "numerous and indefinite."13 This was even before the adoption of the Tenth Amendment.

The ratification of the Const.i.tution was, in fact, in doubt in certain large states, including Ma.s.sachusetts, Virginia, and New York. The Federalists were forced to agree to introduce a number of amendments when the First Congress would meet after the Const.i.tution's ratification. The purpose of the amendments was to further protect the individual from potential abuses by the new central government. It is important to recognize that it was several of the states, at the urging of the Anti-Federalists, which threatened to scuttle the ratification of the Const.i.tution. They insisted on what would later become the Bill of Rights. The states were relied on by the citizenry to uphold their freedom and rights and serve as a buffer between the federal government and the individual.

For example, on February 6, 1788, the Ma.s.sachusetts Ratification Convention not only ratified the Const.i.tution, but in so doing set forth a number of proposed "amendments & alterations . . . that would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government. . . . "14 The Convention recommended, in part: . . . That it be explicitly declared that all Powers not expressly delegated by the aforesaid Const.i.tution are reserved to the several States to be by them exercised. . . .

. . . That no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by a Grand Jury, except in such cases as may arise in the Government & regulation of the Land and Naval forces. . . .

. . . In civil actions between Citizens of different States every issue of fact arising in Actions at common law shall be tried by a Jury if the parties or either of them request it. . . .15 On June 27, 1788, the Virginia Ratification Convention ratified the Const.i.tution but also proposed "[t]hat there be a Declaration or Bill of Rights a.s.serting and securing from encroachment the essential and unalienable rights of the people."16 Among the proposals: . . . That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

. . . That all power is naturally vested in, and consequently derived from, the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them. . . .

. . . That in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

. . . That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the law of the land.

. . . That every freeman restrained of his liberty is ent.i.tled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

. . . That in controversies respecting property, and in suits between man and man, the ancient trial by jury, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable. . . .

. . . That excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

. . . That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not be granted.

. . . That people have a right peaceably to a.s.semble together and consult for the common good, or to instruct their Representatives; and that every freeman has a right to pet.i.tion or apply to the Legislature for redress of grievances.

. . . That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

. . . That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free States. . . . [T]he military should be under strict subordination to the governed by the civil power.

. . . That no soldier in time of peace ought to be quartered in any house without the consent of the owners, and in time of war in such manner only as the laws direct.

. . . [A]ll men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others. . . .17 On July 26, 1788, the New York Ratification Convention ratified the Const.i.tution. However, it also forwarded a list of declarations, including: . . . That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

. . . [T]hat every Power, Jurisdiction and right, which is not by the said Const.i.tution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Const.i.tution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is ent.i.tled to any Powers not given by the said Const.i.tution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.

. . . That the People have an equal, natural and unalienable right, freely and peaceably, to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favoured or established by Law in preference of others.

. . . That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State . . .

. . . [T]hat at all times, the Military should be under strict Subordination to the civil Power.

. . . That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of war only by the civil Magistrate in such manner as the Laws may direct.

. . . That no Person ought to be taken imprisoned, or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property, but by due process of Law.

. . . That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.

. . . That every Person restrained of His Liberty is ent.i.tled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.

. . . That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel or unusual Punishments inflicted.

. . . That (except in the Government of the Land and Naval Forces, and of the Militia when in actual Service, and in cases of Impeachment) a Presentment of Indictment by a Grand Jury ought to be observed as a necessary preliminary to the trial of all Crimes cognizable by the Judiciary of the United States, and such Trial should be speedy, public, and by an impartial Jury of the County where the Crime was committed; and that no person can be found Guilty without the unanimous consent of Jury. . . . And that in all Criminal Prosecutions, the Accused ought to be informed of the cause and nature of his Accusation, to be confronted with his accusers and the Witness against him, to have the means of producing Witnesses, and the a.s.sistance of Council for his defense, and should not be compelled to give Evidence against himself.

. . . That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate.

. . . That every Freeman has a right to be secure from all unreasonable searches and seizures of his person, his paper or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath and Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.

. . . That the People have a right peaceably to a.s.semble together to consult for their common good, or to instruct their Representatives; and that every person has a right to Pet.i.tion or apply to the Legislature for redress of Grievances.-That the Freeman of the Press ought not be violated or restrained. . . .

. . . That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be inst.i.tuted by Congress, is not in any case to be increased enlarged or extended by any Fiction Collusion or mere suggestion;-And That no Treaty is to be construed so to operate as to alter the Const.i.tution of any State. . . .18 Nonetheless, after the Const.i.tution was ratified, and the First Congress convened, the Federalists controlled both Houses, and they were in no hurry to consider any amendments. Madison, a member of the House from Virginia, continued pressing Congress to take up the matter, given the representations that had been made to state ratification delegates, particularly the Anti-Federalists.

On June 8, 1789, Madison was eventually able to raise the subject of his proposed amendments, which were patterned after those urged by several states. He had wanted the whole House to take up the amendments. Instead, they would be submitted to a committee for consideration. Madison began his speech to the House this way: "I am sorry to be accessory to the loss of a single moment of time by the House. If I had been indulged in my motion, and we had gone into a Committee of the Whole, I think we might have rose and resumed the consideration of other business before this time; that is, so far as it depended upon what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee to be appointed to consider and report such amendments as are proper for Congress to propose to the Legislatures of the several States. . . . "19 During the course of his speech, Madison noted that "there is a great probability that such a declaration (bill of rights) in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operation of this [federal] government, and be able to resist with more effect every a.s.sumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the State Legislatures to be sure guardians of the people's liberty. . . . "20 In Ameritopia I explained, "The debates between the Federalist and Anti-Federalist camps did not involve fundamental disagreements about the nature of man and inalienable rights, about which there was near-universal consent and for which a revolution had been fought and won, but how best to arrange a government, after the revolution, to ensure the perpetuation of American Society. The delegates at the const.i.tutional and state conventions feared above all else the concentration of too much power in the new federal government. . . . Not only was there no support for an all-powerful central government, but the delegates at the Const.i.tutional Convention spent most of the summer trying to figure out how to ensure that no office or officeholder in the new federal government would become too powerful. . . . "21 Moreover, the historical record is unequivocal, despite modern myths and misconceptions, that several of the states were the impetus for the Const.i.tution's recognition of, and emphasis on, individual rights and autonomy vis--vis the federal government.

The proposed amendment is compelled because, among other reasons, the Statists have achieved significant success in unraveling the Const.i.tution and centralizing governmental power. As I wrote in Liberty and Tyranny, "So distant is America today from its founding principles that it is difficult to precisely describe the nature of American government. It is not strictly a const.i.tutional republic, because the Const.i.tution has been and continues to be easily altered by a judicial oligarchy that mostly enforces, if not expands, the Statist's agenda. It is not strictly a representative republic, because so many edicts are produced by a maze of administrative departments that are unknown to the public and detached from its sentiment. It is not strictly a federal republic, because the states that gave the central government life now live at its behest. What, then, is it? It is a society steadily transitioning toward statism. . . . "22 As noted earlier, in Federalist 51, Madison wrote, in part, "But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."23 To reiterate, no governing system is perfect. No level of government is perfect. This would seem obvious. Then why concentrate so much authority in the hands of so few imperfect individuals? And if men are incapable of managing their own affairs, what explains the ability of a relatively small number of them to manage the lives of so many others? The Framers knew the nature of man better than most, which is why they were careful and deliberate in establishing our const.i.tutional system in the first place. But they also embraced the Enlightenment and its greatest architects, including John Locke and Charles de Montesquieu, as well as the Judeo-Christian spiritual emanc.i.p.ation of the individual, which preaches, among other things, man's altruism and capacity to improve and do good deeds.

The original const.i.tutional construct-a social compact with limits, enumerations, divisions, etc.-was inst.i.tuted to preserve the civil society and the individual's unalienable rights. But there is no denying that the federal government today is in many ways inimical to that purpose. The steady jog toward unbridled, centralized decision-making has become a sprint. The federal government has evolved into a colossus and the circle of liberty that surrounds each individual is shrinking.

The proposed amendment provides the body politic-that is, we, the people, through our state representatives, who live among us in our communities and with whom we can personally consult-with recourse against the federal government's usurpation of individual and state sovereignty. It a.s.sumes the citizenry rejects its growing subjugation by a cla.s.s of governing masterminds who oversee an army of federal bureaucrats, and still desire self-government and representation by consent. There is no doubt this professional ruling cla.s.s and its adherents, dug in for a century or more and enjoying their dominance over society, will object strenuously to any effort to rebalance the several governments and reestablish the Framers' aims, even though the federal government will still retain considerable authority.

Furthermore, the proposed amendment, like the others, must overcome a very difficult hurdle to even be considered by the states-a process that has never been employed successfully in the adoption and ratification of any of the existing twenty-seven amendments. Again, Article V provides, in part: "[O]n 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 Const.i.tution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof. . . . "24 The proposed amendment would empower the states to bypa.s.s Congress altogether-that is, they would not be required to make application to Congress in order to pursue amendments. Even though making application to Congress is a ministerial event, there is no persuasive reason the states need to administratively organize their amendment efforts through Congress. In fact, among the reasons the states may be moved to act is precisely because of conflicts or disagreements with Congress. More importantly, the proposed amendment enables the states to amend the Const.i.tution directly, by a two-thirds (34) rather than three-fourths (38) vote, and without convening a convention. This remains no easy task, given the political disparateness and other diversities among the states. It is also a legitimate and lawful means by which to amend the Const.i.tution, although the hurdle remains high, unlike the frequent const.i.tutional rewriting by federal officials that occurs today and has for decades.

In addition, the proposed amendment places a six-year limit on the time an amendment can be considered and adopted by the states, starting from the date it is first proposed by a sworn, certified filing by a state with the Archivist of the United States. Moreover, once a state ratifies a proposed amendment, the decision cannot be reversed and the proposed amendment cannot be modified during the six-year period. This prevents indecision, instability, and confusion in the state amendment process.

On June 6, 1788, during the Virginia Ratification Convention, Madison, responding to Patrick Henry's charge that the Const.i.tution's enumerated powers would be usurped quickly by a federal government, a.s.serted, "If the general government were wholly independent of the governments of the particular states, then, indeed, usurpation might be expected to the fullest extent. But, sir, on whom does this general government depend? It derives its authority from these governments, and from the same sources from which their authority derived. . . . "25

CHAPTER TEN.

AN AMENDMENT TO GRANT THE STATES AUTHORITY TO CHECK CONGRESS.

SECTION 1: There shall be a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final pa.s.sage by both Houses of Congress. During the engrossment period, the bill or resolution shall be placed on the public record, and there shall be no changes to the final bill or resolution.

SECTION 2: SECTION 1 may be overridden by two-thirds vote of the members of each House of Congress.

SECTION 3: Upon three-fifths vote of the state legislatures, the States may override a federal statute.

SECTION 4: Upon three-fifths vote of the state legislatures, the States may override Executive Branch regulations exceeding an economic burden of $100 million after said regulations have been finally approved by the Congressional Delegation Oversight Committee [see Chapter 9: An Amendment to Grant the States Authority to Directly Amend the Const.i.tution].

SECTION 5: The States' override shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.

SECTION 6: The States' override authority must be exercised no later than twenty-four months from the date the President has signed the statute into law, or the Congressional Delegation Oversight Committee has approved a final regulation, after which the States are prohibited from exercising the override.

AS EXPLAINED EARLIER, THE level of complexity in amending the Const.i.tution was intentional. However, in matters that require more timely redress and do not necessarily call for const.i.tutional rebalancing, a more practical and, therefore, lesser threshold of three-fifths vote of the states (thirty states) would be appropriate. Moreover, unlike an amendment to the Const.i.tution, the states would have the authority only to override specific federal laws or regulations, not replace them or modify them. Among other things, such a process would help relieve the intensifying dissatisfaction with congressional and bureaucratic interventions in the daily lives of the people. It would cause Congress to consider more seriously the reaction of the states and the consent of the people to the consequences of their lawmaking for fear that the states might override a bill or regulation. It would encourage and expand partic.i.p.ation by the public in a democratic and civil way, including working with state officials and organizing efforts at the local level, and serve as a counterweight to both federal authoritarianism and street anarchy. And Congress would be required to follow a const.i.tutionally mandated discipline, rather than abandon the deliberative process for "emergency" legislation, and risk state override when adopting complex and omnibus bills. In short, the proposed amendment would promote a more rational legislative process in lieu of the current autocratic disorder, and extend republicanism in contrast to its ongoing contraction.

In his Commentaries on the Const.i.tution of the United States, a.s.sociate Justice Joseph Story observed that "[a] government, forever changing and changeable, is, indeed, in a state bordering upon anarchy and confusion. A government, which, in its own organization, provides no means of change, but a.s.sumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circ.u.mstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. It is wise, therefore, in every government, and especially in a republic, to provide means for altering, and improving the fabric of government, as time and experience, or the new phases of human affairs, may render proper, to promote the happiness and safety of the people. The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather than to open a way for experiments, suggested by mere speculation or theory."1 A primary purpose of the proposed amendment is to moderate and, at times, confine, if not undo, the tumult and perplexity unleashed on society by hyperactive governing masterminds-in this instance, Congress and its offspring, the administrative state. Conversely, the proposed amendment promotes change as reform, which is intended to preserve our founding principles and restore our const.i.tutional system. British statesman and philosopher Edmund Burke explained, "There is a manifest, marked distinction, which ill men with ill designs, or weak men incapable of any design, will constantly be confounding,-that is, a marked distinction between change and reformation. The former alters the substance of the objects themselves, and gets rid of all their essential good as well as of all the accidental evil annexed to them. Change is novelty; and whether it is to operate any one of the effects of reformation at all, or whether it may not contradict the very principle upon which reformation is desired, cannot be known beforehand. Reform is not change in the substance or in the primary modification of the object, but a direct application of a remedy to the grievance complained of. So far as that is removed, all is sure. It stops there; and if it fails, the substance which underwent the operation, at the very worst, is but where it was."2 Undue alterations and constant abstractions are the hallmarks of the modern Congress and the administrative state. They are especially notorious and deceitful, for they are often imposed in the name of the people but without their consent or even knowledge. It is this exercise of arbitrary power, and the infliction of social experiments by ambitious public officials-pushing and pulling the individual from here to there, and tormenting him nonstop by banning and mandating the most minute lifestyle behaviors-which are intended to make subservient the individual's independence and unalienable rights. This is precisely what the Const.i.tution was crafted to blunt. There has never been a compact for democratic tyranny in the United States. This clash of purposes-the clash of liberty and tyranny-goes to the heart of the matter and is the impetus for the proposed amendment.

On November 13, 1815, John Adams wrote Thomas Jefferson that "[t]he fundamental Article of my political Creed is, that Despotism, or unlimited Sovereignty, or absolute Power is the same in a Majority of a popular a.s.sembly, an Aristocratical Counsel, an Oligarchical Junto and a single Emperor. Equally arbitrary cruel b.l.o.o.d.y and in every respect diabolical."3 Provision is indispensable for greater input, not less, by the body politic in the conduct of national affairs, and in a manner consistent with const.i.tutional republicanism. This is especially so today. The proposed amendment makes a necessity of cooperation, accommodation, and, more often than not, concurrence within the federal government, between the federal government and the states, and among the several states. It also creates opportunities for public inquiry and partic.i.p.ation.

The additional federal and state legislative deliberations consequent to the proposed amendment's adoption would also slow the increasingly routine congressional practice of circ.u.mventing the subcommittee and committee hearing process for the sinister purpose of concealing the particulars of voluminous legislation, or rushed stopgap measures, even from rank-and-file lawmakers and the most attentive citizens. This a weak spot Thomas Jefferson raised in a letter to James Madison on December 20, 1787. Commenting on the Const.i.tution adopted recently by the convention and awaiting ratification by the states, Jefferson warned of the "evil" of this kind of legislating. He wrote, "The instability of our laws is really an immense evil. I think it would be well to provide in our const.i.tutions that there shall always be a twelvemonth between the ingrossing a bill and pa.s.sing it: that it should then be offered to its pa.s.sage without changing a word; and that if circ.u.mstances should be thought to require a speedier pa.s.sage, it should take two thirds of both houses instead of a bare majority."4 More than two centuries after Jefferson's caution, on March 22, 2010, the House of Representatives barely pa.s.sed the nearly three-thousand-page-long Obamacare law, by a margin of 219212 (without a single Republican vote). As with the initial adoption of Social Security and Medicare, there was no great clamor for Obamacare. Moreover, the final version had not been made available to the public until shortly before it was voted on in the House. Consequently, its concealment prevented public scrutiny of its particulars. As then-Speaker Nancy Pelosi, just a few weeks prior to the vote, told the Legislative Conference for the National a.s.sociation of Counties, "We have to pa.s.s the bill so that you can find out what is in it. . . . "5 Since its pa.s.sage more than three years ago, the people still do not know the full extent of Obamacare's effects. Meanwhile, thousands of pages of implementing regulations have been issued by the Department of Health and Human Services, the Internal Revenue Service, and other federal ent.i.ties, imposing an untold number of mandates, controls, and costs on citizens.

So unpopular was the general proposition of Obamacare-namely, the unprecedented role the federal government would claim over individual health-care decisions-that even before the vote on the law, the House leadership was searching for ways to claim members had voted for it without members actually having done so-a stunning violation of the Const.i.tution. In early March 2010, the House Rules Committee proposed a rule to the full House, aka the "Slaughter Rule," providing that, upon adoption of the House on a vote of yeas and nays of one bill (the "Reconciliation Bill"), an entirely different bill, H.R. 3590 (the "Senate Bill"), Obamacare would be "deemed approved" by the House. However, Article I, Section 7, Clause 2 of the Const.i.tution states, "Every Bill which shall have pa.s.sed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States. . . . "6 Thus, a law is enacted only if a bill containing its exact text is approved by a majority of the Members of the House; the Senate approves precisely the same text; and that text is signed into law by the president. Only after Landmark Legal Foundation threatened to sue the House for its planned subversion of the legislative process did the House leadership relent. Nonetheless, it is chilling that such a wholesale and blatant violation of the Const.i.tution's lawmaking requirements came so close to execution.7 But the congressional goal was clear. As former president Bill Clinton insisted, "It's not important to be perfect here. It's important to act, to move, to start the ball rolling. There will be amendments to this effort, whatever they pa.s.s, next year and the year after and the year after, and there should be. It's a big, complicated, organic thing. But the worst thing to do is nothing."8 In other words, it was important to install a ma.s.sive health-care scheme as quickly as possible before the public could know what it was all about and there was a possible changeover in the congressional majority in the next election.

On July 21, 2010, a few months after adopting Obamacare, Congress pa.s.sed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). It was more than 2,300 pages long. During Congress's final negotiations, provisions were added to the bill with little debate and in many cases no hearings. Dodd-Frank requires four hundred separate rulemakings by eleven separate federal agencies.9 It establishes the Consumer Financial Protection Bureau, which has unparalleled powers. It regulates credit and debit cards, mortgages, student loans, savings and checking accounts, and virtually every other consumer financial product and service. And the law actually attempts to immunize the bureau from oversight by future Congresses.10 Two years after its pa.s.sage, more than eight thousand pages of regulations had been issued, and regulators were only about 30 percent finished. Complying with the law is estimated to take about 24 million labor hours a year and require businesses to hire more than twenty-six thousand personnel just to comply with those already-finalized regulations.11 As of this writing, Congress is pursuing the same irresponsible and reckless course respecting so-called comprehensive immigration reform.

Moreover, when Congress is not violating its own budgetary law by pa.s.sing continuing resolutions as emergency appropriation measures without public committee hearings, it is doing the opposite-that is, adopting ma.s.sive spending bills that neither its members nor the public have had an opportunity to read. For example, in 2005, Congress pa.s.sed the Deficit Reduction Omnibus Reconciliation Act, which was a combination of House and Senate bills that actually contained different and separate language. Its const.i.tutionality was challenged in court, but the lawsuits were dismissed under the Enrollment Bill Rule, a practice whereby the courts concluded that the signed authentications by the president, Speaker of the House, and president of the Senate, and the formal printing of the bill, are incontrovertible proof that the law was pa.s.sed validly.12 Of course, this is a complete fiction. Each house of Congress is required to approve exactly the same legislation. Furthermore, omnibus bills are so extensive-thousands of pages in length involving scores of issues-that few know what is contained in them.

Recently, Congress pa.s.sed the Violence Against Women Reauthorization Act of 2013 (VAWA).13 Congress is in the habit of t.i.tling bills in such a way as to make difficult legitimate opposition to their adoption. The VAWA is such a bill. This law was pa.s.sed in the Republican-controlled House with virtually no debate, and without the ability of a member to offer an amendment. Despite its t.i.tle, the law is deeply flawed, as numerous commentators have noted, and raises serious doubts about its const.i.tutionality in several respects, including the fundamental right to free speech and due process.14 It also expands the definition of domestic violence to include "emotional distress" or the use of "unpleasant speech." It also grants more visas to illegal aliens who claim to be victims of domestic abuse.15 In addition, this is a subject that both historically and const.i.tutionally has been addressed at the state level. Even a cursory review of publicly available databases discloses that the states have pa.s.sed numerous criminal statutes and inst.i.tuted social service programs to help protect and care for abused individuals, and have done so for some time. This is not to say that a federal role, in certain circ.u.mstances, is illegitimate or unnecessary. But with the VAWA, Congress attempts to preempt and federalize most of the field and policy in this area. Back in 2000, in United States v. Morrison, the Supreme Court concluded that parts of the first Violence Against Women Act were unconst.i.tutional, holding that the act exceeded congressional authority under the Commerce Clause and Fourteenth Amendment.16 Opposition to the law is not opposition to protecting victims of violence, but opposition to Congress's heavy hand in violating the Const.i.tution.

These examples barely scratch the surface yet suffice in demonstrating the debacle of federal domineering, social engineering, and "expert" planning. When Congress pa.s.ses immense and complex bills that virtually no one can comprehend, and often without const.i.tutional power, and further delegates independent authority to the executive branch in violation of the separation-of-powers doctrine to pile regulations on top of laws-resulting in thousands of additional pages of rules-is this not the "Despotism, or unlimited Sovereignty, or absolute Power . . . [of] a Majority of a popular a.s.sembly" of which John Adams warned?17 For all the talk by the governing masterminds about the commitment of more federal resources for education and the import of a well-informed people, the fact is that in their own legislative and regulatory quests and actions, opacity and obscurity are vital. The more distant from and less informed the public is about lawmaking and policy determinations, and their likely consequences on the individual and society generally, the less resistance and outright opposition can build against them. Enlightened public debate is to be avoided. Moreover, the will of the people can be said, albeit disingenuously, to be reflected in the actions of those for whom they voted-"the people get the government they deserve"-although the truth is otherwise, for the people know little of the actions taken by their members of Congress and still less of the regulatory maze engineered by the administrative state.

The colonists in preRevolutionary War America, having been taxed by the British without representation in the Parliament, used the slogan "No taxation without representation" to protest their lot. Today the rallying cry could be "No representation with representation." The point is that even though citizens vote for their members of Congress, members legislate in a manner that denies the people access to a transparent, orderly, and predictable lawmaking system, thereby avoiding true public scrutiny and input. Therefore, government decision-making becomes more centralized and power more concentrated. An insular ruling cla.s.s intervenes arrogantly and boundlessly in the daily life of the individual, calibrating all nature of behavior. By no measure is such a contrivance representative republicanism. Edmund Burke explained it this way: "To them, the will, the wish, the want, the liberty, the toil, the blood of individuals is nothing. Individuality is left out of their scheme of government. The state is all in all. Everything is referred to the production of force; afterwards, everything is trusted to the use of it. It is military in its principle, in its maxims, in its spirit, and in all its movements. The state has dominion and conquest for its sole objects; dominion over minds by proselytism, over body by arms."18 This is a long way from the limits imposed on Congress by the Const.i.tution, and its grant of specific and enumerated powers. The objective of the proposed amendment is, as I explained, to restore our founding prerogatives and discourage arbitrary and perplexing legislation and regulations, inst.i.tuted by a growing, centralized decision-making regime hostile to const.i.tutional constraints. It will encourage the expansion of actual republicanism and reverse federalism's steady dissolution. It will inst.i.tute a truly deliberative and rational process within the federal government, between the federal government and the states, and among the states. And at all levels of deliberation, the citizen will have a genuine opportunity to partic.i.p.ate in the governmental process, and hold his federal and state representatives politically accountable for their actions.

The proposed amendment requires a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final pa.s.sage by both houses of Congress. The purpose is to ensure that members of Congress, state officials, and the citizenry are aware of legislative actions before they become law. It also provides for speedier legislative action if agreed to by two-thirds of the members of each house of Congress.

In addition, the proposed amendment empowers the states, by a three-fifths supermajority vote, to override a federal statute or regulation (which regulation imposes an economic burden of $100 million or more), within a two-year period from the date of its legal implementation. The states cannot subst.i.tute their own alternative legislation for federal laws and regulations. Nor can they modify federal laws or regulations. The sole power of the states is to collectively override a law or regulation by three-fifths vote. Moreover, although the three-fifths vote is obviously a lesser threshold than the two-thirds requirement for amending the Const.i.tution proposed in the previous amendment, it is still a challenging supermajority hurdle. For example, as demonstrated in the Obamacare litigation, at no time did the states suing to overturn the law reach thirty in number.

Clearly there is much political, social, and economic diversity among the states. Some states respect the individual more than others. Some are downright oppressive in their imposition of regulatory and tax schemes. But people can move from state to state, and often do, to escape one state's burdens for another state's opportunities. Federalism is not about any single state or small faction of states imposing their will on the nation. It is about states serving, in the aggregate, as an essential buffer between the central government and the people, safeguarding the citizen from authoritarianism's consolidated rule, thereby preserving and promoting self-government. After all, self-government is the fundamental feature of a const.i.tutional republic. As Thomas Jefferson wrote, "It was by the sober sense of our citizens that we were safely and steadily conducted from monarchy to republicanism, and it is by the same agency alone we can be kept from falling back."19