by Timothy Reeves, Oregon Tenth Amendment Center
Article V of the US Constitution set out the manner in which the document is to be changed for societal/cultural/justice serving reasons. The text of this article reads:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
While the method is clearly onerous, there is a way to make appropriate changes to the document to address problems arising from modernization of society.Â
That is not just a method to change, but there is a common law concept here that plays a larger role in deciding how we interpret the entirety of the document. The very fact that the Constitution itself sets out a method with which to make changes means that any other means of making changes is barred. So people who say some precedent was made in the 1800′s (it doesn’t matter which one as long if it goes against “original intent”) are wrong.Â
So what are the unconstitutional methods of changing the Constitution?
The three branches of the Federal Government each use different methods of making illegal amendments.
Executive
The Executive Branch of the Federal Government has two ways in which it breaks the law, first is the “signing statement.” In this amendment the President signs a constitutional bill duly passed by both houses of Congress, and simply makes a statement as to how he plans on interpreting it to mean something completely different. This method has a long history of precedents, let me stress that even if the President’s plans would otherwise be in full compliance with the Constitution, it flies in the face of the Supremacy Clause for the President not to enforce legal statutes in the exact vein that they are passed (so long as they are legal). Another way the President violates the Constitution is though his cabinet. When the multitudes of cabinets make laws in the form of regulations, this is in violation of the separation of powers (Congress makes all laws).Â
Again it does not matter if the laws are otherwise in compliance with the Constitution or not, the very fact that the Executive Branch is legislating is the violation (amendment). While I am sure there are many other ways the Executive Branch changes the Constitution, this is a good example of what I am talking about.
Legislative
The legislative bodies change the Constitution whenever they pass laws which are direct contraventions of the Constitution. Alarmingly, I recently heard some federal legislators mention that you cannot make a constitutional argument in Congress anymore. That is to say when a bill is debated, there is no longer any consideration or mention of the legality or constitutionality of the bill. They also change the Constitution when they delegate their constitutionally mandated roles outside the legislative branch (think coining money and declaring war).
Judicial
The Judicial branch may be the most profligate abuser of the Constitution in that the concept of “Judicial review” established with Marbury Vs Madison is unconstitutional. Remember, changing the way the Constitution is interpreted from original intent is an amendment (and requires an action under Article V of the Constitution). Let me justify that for a minute. Any contract such as the Constitution is binding on all parties involved. No reasonable legislative body (such as the ratification councils of the states prior to the ratification) would sign a contract (especially one of such import) in which the meaning of words could change significantly over time- thus, textual-ism and legal precedent are both illegal means of interpretation of the Constitution, and for actions justified under such regimes to be legal, amendments would have to be passed for each “change.”
To make original intent easier to find, there were a series of articles published during the ratification debate called the “Federalist Papers,” and another series called the “Anti-Federalist Papers.” This is the discussion that took place prior to the ratification of the Constitution. Within these letters are the exact intentions of the founders, and thus the only legal interpretations of the Constitution. All interpretations to the contrary are unbinding (unless accompanied by a legal amendment). Thus all of the times that the Supreme Court used any method other than original intent to make their decision (and they have used foreign law as well as legal precedent, as well as changes in the language to do so) their rulings are by the Constitution unbinding because they represent a change to the Constitution without an amendment.
So Who Is Supposed To Stop Them
There are a couple of ways in a federalist system to stop the three branches of the government from changing the Constitution. The most effective is nullification. With this method, the state governments simply pass a law that states the federal law in question is unconstitutional, and makes its enforcement within the state limits a crime. This method usually entails fines and prison sentences for any state or federal official attempting to enforce the offending statute (normally enforced by the county sheriffs). The state must stand firm, as the Supreme Court will undoubtedly rule against them. But as Madison said- The Federal Government was not made the final arbiter of their own power, as that would make their judgment, and not the constitution, the law of the land. There is a common-law concept which states; In a contest between two laws that are equal, the one passed most recently takes priority.
Thus, the Tenth Amendment takes priority in these cases the powers not enumerated to the federal government, nor prohibited to the states, are reserved to the states and the people. This puts the law on the side of the state government in most cases.
Another way is jury nullification. In this way, during trial, a jury will determine that a person is innocent even though he may have violated the law in question, because the law is wrong. This method has a long history dating back to pre-revolutionary days.
Probably the least effective way of addressing federal overreach is “voting the bums out.” Sadly, even if you sent Jesus Christ himself to Congress he would be corrupt and rotten within six years. It flies in the face of human nature to ask a body of people to limit their own power. Each one of them believes they will use the power to do what is right, and thus fails to see that such power does not belong in one place. Or worse- simply wants the power, as the majority do, to elicit bribes from the wealthy by selling the liberties of the masses.
Two-hundred + years ago, the states purchased a Bulldog (the Federal Government) to protect them from their neighbors and help smooth out the interactions between their neighbors and each other. Somewhere around 140 years ago, this Bulldog got off its leash. It looked for a time as though no harm was done, but now it is clear to everyone that this was not so. The Bulldog goes around the neighborhood picking fights, and it has bitten our children over and over. It is time to reattach the chain to the collar and stop the disregard that the Federal Government shows to the law.
Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
I would like to point out that the other two branches of the government are just as powerful as the judicial branch and they should start asserting their rights to execute the powers granted to them by the constitution as they see fit. They have that right since the judicial branch is also limited to deciding cases brought to it by the law enforcment officers of the other two branches. The judicial branch has gone to far as can be seen in a recent case where they ordered hispanics to get six times the votes as any other ethnic group. The executive branch should have said no and tough shit to the judicial branch and uphold the constitution themselves.
And on top of it, the other "branch" – the states, could be even more powerful when they assert themselves!
Unfortunately, the states get bullied by the feds with fund reduction if they don't adhere to their agenda. In 1984, the federal government needed the states to accept the National Minimum Drinking Age Act to raise the age for the purchase and public consumption of alcohol to 21. All states were not in agreement with the Act and were slow to comply. The states were told to comply by October 1986 or lose 10 percent of their federal highway funds. All states complied.
We lost much of the federalism and republicanism in America when the Seventeeth Amendment was passed. Now our Senators do not represent the State legislatures in Washington D.C. Even though the procedure for selecting the senators was changed their job duties did not. Now each senator reports to the people in his state and not to the legislative body as originally intended. This puts much distance from the electorate in that only a few votes may change a state legislator in each district but many votes throughout the state are needed to replace a senator.
I am no fan of the 17th, but I believe we would be facing the same problems today with or without it. Without it may have just gone a little more slowly to tyranny. the nature of government power is to always grow, and it was already doing that before the 17th was passed. What I believe we really need to address is HOW to deal with problems when they come up.
I have been reading Tom Woods' new book, Nullification, and it sure seems to be the blueprint.
The 17th amendment was not when we federalism and republicanism was lost. They were already lost and the US constitution discarded by Lincoln's war and the reconstruction acts. From that point on it was just digging the dagger in deeper.
The Reconstruction Acts helped fight tyranny in the South. Federalism should be a means to an end, not an end in and of itself.
The Reconstruction Acts brutalized the South. I'm curious how depriving an entire region of due process while refusing to seat their members of congress and forcing ratification of constitutional amendments at the point of a bayonet qualifies as "fight(ing) tyranny."
I've been told that that is undemocratic but that is the point. The house of representatives is democratic and the senate is for the state governments. This creates a natural balance between the house and senate since they would naturally oppose each other.
This is a great piece of thinking and writing—it is much appreciated. The Founder's concept of "checks and balances" has long since been cast aside, and what we are left with is one incestuous federal government, ruling without restraint over its fiefdom. The only "check" we have remaining is through the use of nullification—should our States decide to do their duty and reject ALL unconstitutional acts. Failing that, secession is the only remaining remedy.
I hate to close with anything negative regarding such an informed piece, but it was not 140 years ago when the bulldog escaped its leash, it was 150. Lincoln was the greatest abuser of our Constitution either before or since his term. The list of his numerous unconstitutional acts are too long to list here.
To add to the way in that the executive violates our long ago discarded constitution are executive agreements, wherein the president bypasses the senate by committing us financially, militarily and commercially with other countries on the premise that such acts are part of the executive power. The argument is that executive agreements are not treaties and thus no advice nor consent is needed.
Great post, thank you.
Quote: "Sadly, even if you sent Jesus Christ himself to Congress he would be corrupt and rotten within six years."
I do not believe this. The fact that people of principle (Ron Paul for example) do exist demonstrates that it is weakness of character, not the environment itself, that leads to corruption. "Power corrupts" is a falsehood. Rather, power tends to attract people of weak moral character, who are easily corrupted.
The dilemma, then, is thus: probably the best politicians would be people WHO DO NOT WANT TO BE POLITICIANS. The very desire for power over others should be grounds for disqualification.
Good point Lonny. I may have to reconsider that point. Maybe it is anyone who is of low enough character to do what is required to get elected would be corrupted within a few short years. The point though is that once you enter that arena all roads lead to corruption.