Article V, Clause 1: 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 Amend-ments, 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;
One of the easiest ways for a Senator or Congressman to gain attention is to propose an amendment to the Constitution. If it pertains to a subject of interest to the public, all the better. Call a press conference, have your staff compose a press release and, for at least one news cycle, your name is before the public. Rarely does anything come of these publicity stunts and they are soon forgotten. There are up to 200 constitutional amendments proposed in a typical session of Congress. The average person seldom hears of these proposals unless they are on the Lawmaker’s mailing list or visiting his or her website.
Such antics on the part of our lawmakers have not been a serious problem constitutionally. Of the more than one thousand amendments introduced in Congress over the past two centuries only 33 have garnered enough supports in both houses of Congress to be presented to the states for ratification. Of those only 27 have been ratified including the ten making up the Bill of Rights.
Members of Congress can score political points with their constituents by proposing amendments, especially if the amendment involves a populist issue. The same opportunity for proposing constitutional amendments, however, is not extended to the state lawmakers by the Constitution. They typically solve this problem by calling for an amendatory convention. Historically, the call for an amendatory convention has been used by the states to force Congress to submit desired amendments to the states for ratification. This tactic was used by the states in 1789 to force Congress to propose a Bill of Rights, and again in 1912 to force it to propose the Seventeenth Amendment. Once the amendment has been submitted to the states by congress, the need for a convention no longer exists.
Amendments to the Constitution must originate in Congress, or from a convention called by Congress for the purpose of proposing amendments, when requested to do so by the Legislatures of two thirds of the states. Article V was one of the last Articles to be debated by the Philadelphia Convention. After more than four months of exhaustive debate in a closed room with little reprieve from the heat and humidity of a Philadelphia summer, little time was given to its consideration. In fact, more time was devoted to the phrase “we the people” during the Virginia Ratifying Convention than was devoted to the Article for Amending the Constitution during the Constitutional Convention.
The absence of specific requirements in the states’ applications has led to some degree of controversy in recent years. One group called, “Friends of The Article V Convention” (FOAVC) has filed two lawsuits against the government claiming that the People have been denied their constitutional right to an Article V Convention by Congress; one making its way to the Supreme Court. Their claim is based on the fact that Article V does not specify a time frame for the states’ applications.
They claim that since the Constitution was ratified in 1788 more than 750 Article V applications have been made by all 50 states and Congress continues to ignore their constitutional duty to call for a convention to consider amendments. FOAVC rejects court rulings that in order for applications to trigger the Article V requirement for a convention they must be contemporary, and that the question is a political one over which the courts do not have jurisdiction.
The group fails to make a case for the need for a convention and does not indicate a reason for their insistence on one except for the fact that Article V provides for it. While they do not clearly disclose their agenda, an article by one of FOAVC’s founders, Joel S. Hirschhorn dated May 8, 2008 contains the following;
“Hillary Clinton and Barack Obama say they believe in giving Americans universal health care. I don’t believe them. Anyone who takes the time to understand universal health care should conclude that only a simple single payer system will reform the current outrageous system that benefits the insurance and pharmaceutical industries. The contorted plans from Clinton and Obama are not sufficient reforms. And what John McCain has proposed is sheer nonsense and by itself should cause any conscious American to avoid voting for him….” “…We must expand the Bill of Rights as embodied in the US Constitution to include the right to affordable universal health care. The time has come for the public to conclude that the right to universal health care is as important and necessary as the right to free speech and all the other beloved constitutional rights. Common sense says that health care is a right, not a privilege…”
This language certainly does not indicate someone who is devoted to the defense of the Constitution. At any rate, whether or not the Constitution provides for an amendatory convention—as it certainly does—the real question should be; is such a convention needed? And is it advisable? An Article V convention has never been convened in our history and there are several good reasons why one should not be.
The danger of altering the plan of government
While delegates to an Amendatory Convention would not be authorized to rewrite the entire Constitution, there would be no limits to the number and scope of the amendments proposed. Thus far Article I, Sections two, three, four and nine; Article II, Section one; Article III, Section two; and Article IV, section two have all been changed by Amendment. Most of these amendments have produced unintended consequences; Abortion, a progressive income tax, and the loss of state sovereignty, for example.
The futility of Constitutional Amendments
Our government has not been a true Constitutional Republic since the beginning of the progressive era. Presidents, Legislators and Courts seem to acknowledge the Constitution only when it furthers their agenda, otherwise it is ignored. There is no indication that additional amendments would be honored by government officials to any greater degree than they honor the Constitution now. Before we open up the Amendment process by calling for an Amendatory Convention we need to regain control of the government as a whole and bring it back under the jurisdiction of the Constitution as it is.
Lack of need for a convention
Whenever a public outcry for a new Amendment to the Constitution arises it is usually due to persistent breaches of the Oath of Office by elected officials or a departure from the fundamental principles set forth in the Declaration of Independence. Of the seventeen Amendments ratified since the Bill of Rights only the twenty-first and possibly the twelfth were necessary; the former to repeal the ill-advised eighteenth amendment. Most of the problems intended to be corrected by the remaining fifteen could have been corrected legislatively without violating the Constitution as it was. The sixteenth and seventeenth Amendments have proven to be damaging to our form of government, the eighteenth violated a fundamental natural right and most of the others came with unintended consequences that have proven detrimental to the general welfare. In addition they have provided fertile ground for activist judges to substitute their social preferences for Constitutional law.
While the Constitution is not perfect, two hundred years of history indicates that it is as near to perfection as a basis of government as mankind is capable of devising. All of us should become a little nervous when our political leaders seriously talk of changing it. “If it ain’t broke, don’t fix it.”
Article VI: The Supreme Law of the Land
Article 6.0.2-4: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Over time customs and beliefs arise that are seldom if ever questioned. One such belief is that the Constitution makes the Supreme Court the final authority on the constitutionality of laws passed by Congress. It clearly does not. The Constitution itself is the “Supreme Law”, not the opinions of the Justices on the Supreme Court, no matter how wise or informed they may be.
The Supreme Court, like taxes, government and political parties, is a necessary evil. One of the purposes of government as noted in the preamble to the Constitution is to “insure domestic tranquility”. This can only be accomplished through the rule of law that allows us to enjoy an ordered society with our liberties protected from encroachment by others. A Supreme Court is necessary as the final arbiter of those laws. However, like taxes, government, and political parties, the Supreme Court must be kept in check or else it gradually expands its powers to destroy the very liberties it was empowered to protect.
Since 1803, the Supreme Court has acted as the final arbiter on questions concerning the constitutionality of laws passed by Congress. This function of the Court is referred to as “judicial review”. The doctrine of judicial review is derived from Article 3.2.1 and 3.2.10 of the Constitution, which says…
“The judicial Power [of federal courts] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;….the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, …”
Not all the Founders agreed with this application of the Constitution, however. Thomas Jefferson in a letter to Judge Roane, September 6, 1819 made this observation concerning the doctrine of judicial review,
“….The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted no where but with the people in mass….”
Jefferson again warned of the dangers of this doctrine in a later letter to William C Jarvis in 1820.
“….To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power is more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots….”
Nevertheless, the doctrine has been firmly established in constitutional law by time and is not likely to be reversed. As Jefferson observed, Judges are mortal like the rest of us and subject to the same passions and prejudices. The result of this human characteristic is the emergence of “judicial activism” which has become more prevalent in our judicial system with the advance of progressivism and the passage of time. Judicial activism occurs when a court finds meaning in words like “liberty” and phrases like “equal protection” that was never intended by the Framers. The court then uses these newfound meanings to impose their own political, moral and social views on the people.
The Constitution provides a number of remedies for judicial activism, often referred to as “legislating from the bench”, but for political reasons, they are seldom used. The first remedy is the power of impeachment found in Article II, Section 4. Impeachment does not correct the infraction, but it does remove the judge or Justice from office. In our 200 plus year history, only thirteen federal judges have been impeached and only one Justice of the Supreme Court. Justice Samuel Chase was impeached by the house in 1804 but later acquitted by the Senate.
The power of impeachment was considered by the Framers to be a sufficient check on the actions of the Supreme Court. Alexander Hamilton expresses this view in Federalist No. 81.
“….It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeach-ment…would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations….”
The means for correcting misinterpretations of the Constitution by the Supreme Court is also provided for in Article V establishing the process for constitutional amendments. The amendment process can be used to change the Constitution, correcting or nullifying arbitrary decisions by the Court. However this method has been used only four times in our history. The Amendments that specifically overturned prior Supreme Court rulings were the twelfth, thirteenth-fourteenth, sixteenth and the twenty-sixth.
In addition to these remedies, Congress has the power to restrict the jurisdiction of the Supreme Court under Article 3.2.10 concerning any appellate matter of law that may be brought before it. There are three reasons why the courts have been allowed to, as Jefferson says, “reduce the Constitution to a mere thing of wax in the hands of the judiciary”. First, there is an appalling lack of knowledge on the part of our elected officials concerning the content of the Constitution. Second, progressives have successfully used judicial activism to establish laws they could never get through the legislative process, therefore they have no interest in reining in the courts. Third, the American people and their elected representatives have been conditioned to accept the decisions of the Supreme Court as the final word in Constitutional interpretation.
For these reasons the defense of the Constitution is left up to “the people”. We are the final judge of its meaning. It is up to us to make sure that the representatives we elect to office will take their oath of office seriously and use the Constitutional remedies provided to exercise the necessary checks on the judicial system.
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Philosophy of Evil Socialism in America
"The struggle of History is not between the bourgeoisie and the proletariat; it is between government and the governed."