Tolleson, DL. “The Power of the States—Part IV.”
Tolleson, DL. “The Power of the States—Part IV.”
This article footnotes to References containing parallel cites. A parallel cite sources two Uniform Resource Locators (URLs), the second of which is rendered in
What is America?
Regardless your answer, good or bad, you have the freedom to express it and to contribute in efforts preserving or correcting the reality you perceive. This may be difficult to comprehend because the federal government has become massive and powerful while the means through which citizens exert power (the 50 united States) has weakened.
But it behooves us to remember that the States created the federal government, originally limiting it to enumerated (specifically listed) powers while reserving all other powers to the States and their citizens. Among the benefits of this limited federal authority is your freedom to flee when things become untenable and unalterable in your State. Of course, the ever-enlarging regulatory over-reach of the federal government has vastly expanded, thus tremendously increasing the various forms of tyranny that are inescapably applied nation-wide.
I will concede that there are some regulatory authorities assumed by the federal government which, in a modern society, are natural extensions of the Framers’ intent. But there are a vast array of federal powers being exercised well-beyond the scope of the Framers’ intent—and even common sense.
How did this happen? Well, in The Federalist, No. 51 of 1788, James Madison illustrates what was supposed to have happened, to wit:
One of the “auxiliary precautions” to which Madison referred were the checks and balances between the branches of government. Unfortunately, these have not been sufficient to offset a public progressively ignorant of personal responsibilities through city, county, state and national voting; the onslaught of deteriorating influences and; government representatives wielding unchecked power at critical junctures in history.
Numerous examples of unchecked authority abound. One of the more obvious is the Supreme Court. This court has assumed the role of the final arbiter of all things legal in the United States. But how is it justice in a Free Republic that nine men in robes decide the fate of an entire nation?
By what twist of reason and common sense can this court determine that it is legal to regulate an individual’s activity as interstate commerce when that activity is absent from interstate commerce? It did this in Wickard v. Filburn, 317 U.S. 111 (1942). (Do not write me about the court’s argument that the absence of interstate commerce has impact on interstate commerce: By that measure of tyrannical reasoning, we should all be regulated because anything we choose not to do or buy impacts the marketplace in which we didn’t do the deed or didn’t buy the product.)
Or what restraint is there on a court that creates the illusion of a separation of church and state where none existed? It did this in Everson v. Board of Education of Ewing, 330 U.S. 1 (1947). In this case, Justice Hugo Black wrote, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”
This idea was a reverse engineering of President Thomas Jefferson’s private correspondence to Baptists in the community of Danbury, Connecticut. Therein he wrote: “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting free exercise thereof,’ thus building a wall of separation between Church & State.”
To simplify: Jefferson’s position was that any law regarding religion—be it a law endorsing or prohibiting the practice of religion in any arena, including the government, would result in building a wall that separated the Church from the State. In short, Jefferson was fearful of building the very metaphorical wall that was later erected by Justice Hugo Black (a former Alabama Ku Klux Klan member appointed by FDR in 1937).
As of this date, perhaps the most recent and horrendous Constitutional infringement by the, “High Court,” was in ruling that the citizen MUST enter into a private contract for healthcare (the results of the Affordable Care Act, otherwise known as Obama Care). I will not go into the details that illustrate the unconstitutional nature of Obamacare or how Justice Roberts used the court’s majority opinion to re-write it into a tax that made it constitutionally workable (my description). And while the personal mandate was, fortunately, struck down by Executive Order I would not yet consider the monster dead.
Over the course of its existence, and at its worst, the Supreme Court is wresting tyranny from the very jaws of freedom through their oligarchical legal arguments that form a foundation of secular absolutism for a Democracy (as opposed to a Republic).
The aforementioned examples are well-known and touch the lives of every American. Lesser known examples of equal scope are found across the entire spectrum of our federal government. But rather than citing a laundry list of our deteriorating freedoms, my intent is to identify a broad range of systemic problems that have brought us to the present state of affairs. Here, then, is that broad range of problems:
• The nature of Congressional service
• The nature of Congressional power
• The nature of Senatorial service
• The nature of Supreme Court service
• Supreme Court Legislative reach (via tortured Constitutional interpretation)
• The nature of federal spending
• The nature of federal taxing
• The nature of the Federal Bureaucracy
• The nature of Free Enterprise in American society
• The nature of infringement on private property
• The nature of the State power (as in the 50 united States)
• The nature of the vote
Certainly, this is an ominous list. With such erosions occurring on so many fronts, how can we, the citizens, possibly defend—let alone advance—our form of government that was bought with the precious price of so much spilled blood?
The answer—the only real American answer—has already been given to us by the very men who formed our government. That answer is found in the Constitution. You see, the Constitution provides for two methods of Constitutional amendment, the second of which has been only discussed—but never utilized. That method is through a process implemented entirely by the State Legislatures regardless of what the Federal Government itself my want.
Yes, you read that right. The Constitution empowers the States to completely set aright our ailing federal government.
If that seems impossible to believe, then you’re invited to read the three articles in this series that are antecedent to this one you are now reading, all of which are about a specific Constitutional power of the States.1, 2, 3
The short of it is this: At Article V of the United States Constitution is a clause that enables two-thirds of the State Legislatures to make application to Congress to call a Convention of the States for the purpose of proposing Amendments to the Constitution. These Amendments would then need to be ratified by the Legislatures of three fourths of the states or by Conventions in three fourths of the states.
The actual Constitutional text reads as follows…
The key points are rendered in italic.
Just think about it! The states could literally band together and reclaim government.
You say you’re tired of professional Congressmen? We can create an Amendment to limit the Congressional term of office. You want to limit the term of a Supreme Court Justice? Create an Amendment. You want to have a way of overriding Supreme Court decisions? That’s right, create an Amendment. You want a national balanced budget or maybe limit federal spending to a percentage of the GDP? Create an Amendment. Are you sick and tired of the IRS—maybe you want something a little more Just: Like everyone paying a flat percentage?
Whatever the problem, this can fix it.
“But wait,” you say. “Couldn’t this get out of hand? Couldn’t the forces we are trying to overcome, co-opt the effort?”
No. The reason is in the very language of Article V. The process is three-fold. First, a successful petitioning of Congress depends upon two-thirds of the State Legislatures. This is not just, anybody. It means the citizen-elected voting bodies of two-thirds of the States are required to call for a convention created to only propose Constitutional Amendments. Secondly, the Amendments themselves would then need to be written by the representatives of the States during the convention. And, thirdly, Constitutional Amendments would then need to be ratified (passed into Constitutional law) by the Legislatures of three fourths of the States (or conventions in those States).
This is not a process of a democracy via mob rule or majority voting. It is a process of Republic Constitutional amendment by the States via their representatives elected in each state These are large hurdles. And rightly so. No one amends the Constitution on a whim. And considering the political diversity of the country, no one—not even the detractors of our Republic—can dominate or co-opt a process such as this.
So, perhaps you are now convinced that the process cannot be high-jacked. Perhaps my illustriously written oration is so overwhelming that you find your opinion to the very opposite: You think that such a process is so difficult to achieve that It’s a pipe dream to even contemplate—let alone, attempt.
Au contraire, mon ami! Internet search will reveal that the topic has received a lot more attention than you might expect. There have been brought before Congress Resolutions calling for a convention of the States in accordance with the Article V State Amendment process.4 Likewise the legislatures of nearly every state has passed legislation to make application to Congress for a Convention (while some states have reportedly rescinded such legislation or applications).5 In fact, according Wikipedia “only the Legislature of Hawaii has never approved an Article V Convention application” (as of mid-2019).6
If you are interested in contributing to this effort you might wonder where to start. In whom or what should you invest your time and efforts? In fact, you may read of more than one group advocating this very thing. None of this advocacy is a bad thing.
But you should be careful. You want to avoid people advocating a Convention of the States merely to line their own pockets.
As indicated at Article V of the Constitution and illustrated above, it is the legislatures of the States that will petition Congress. So, while there are writers and groups advocating this matter, you should look for States’ official stamps of approval OR the involvement of legislative representatives from the States (nearly all of which, as also indicated above, have expressed legislative interest).
So to examine how this might happen, I recommend studying the efforts of the group that gave rise to this series of articles on The Power of the States.
They were formally known as, The Mount Vernon Assembly, taking their name from the location of their first meeting. However, the group reported that the name was, “co-opted,” for profit by others and so they altered their own identification to, The Assembly of State Legislatures, Inc. (ASLI).
Now, before you fly-off the rails at seeing a, “corporation,” at work, bear in mind that the creation of a corporation provides the structure necessary to effect change: Profit and Nonprofit organizations routinely utilize the corporate structure to interact with government in order to make change and/or pursue the interest of people who might not otherwise have an effective voice. In that regard this was no different.
Most importantly, this group—ASLI—met my criteria of official State approval OR the involvement of Legislators from various states. In fact, as of December 2014, ASLI had been comprised of 75 legislators from 28 states showing an interest in the Convention of the States process.
ASLI met in December 2013, in June 2014 and in December 2014. CSPAN covered and broadcasted a number of these events, including the December 2014 meeting (which was actually coverage of a meeting scheduled over the course of two-days).7
A word of warning: that meeting was not a flashy, headline-grabbing event. Instead, it resulted in 4 hours, 29 minutes and 15 seconds of the procedural trench-work necessary to the purpose for which they met (the online time of 4:59:27 includes the dead-air of a break and dead-air at the end).8
Here are some of the highlights from that December 2014 meeting (time indications are in hours, minutes and seconds):
00:02:28: Number and identification of attendees.
00:40:33: Definition of the group, purpose and nomenclature.
00:46:28: Membership defined (that being the 50 states and representatives thereof).
01:17:00: Beginning discussion of the group bylaws—in particularly how states will appoint representatives to the Convention body. This begins a lengthy discourse on the bylaw language the group drafted out of the June 2014 meeting.
02:21:20: Discussion of bylaw language at Article I, Section 2.
02:35:41: Discussion of bylaw language at Article I, Section 3.
02:39:58: No disagreements of bylaw language at Article II, Section 5.
02:40:15: Discussion of bylaw language at Article II section 8.
03:17:00: Proposal for a near-future conference call regarding bylaw language disputes.
03:18:50: Discussion of bylaw language at Article II, Section 3.
03:39:15: Committee report regarding prior, June 2014, meeting.
03:46:50: Sub-Committee report regarding 36 States having made previous applications to Congress for the Article V Constitutional Convention process that were unrelated to the Assembly’s effort.
03:51:10: Discussion concerning Congress’s prior lack of regard for States appealing for the Convention process and about the political will for going forward.
03:54:28: Discussion concerning Congress’s previous barriers to the Convention process and how, going forward, every state should utilize the exact same or similar language in Convention applications to Congress.
So, once again, it is your turn. Go spread the news. Educate and motivate your fellow-citizens. You are not powerless but only you can make your voice matter by using it.
And through the power of our Federalism—the power of our several States—you and I can make a difference.
1 “The Power of the States—Part I.” DLTolleson.com, 12 Jul. 2013, http://www.dltolleson.com/commentary/powerofstates01.php, (Retrieved 2014).
2 “The Power of the States—Part II.” DLTolleson.com, 6 Oct. 2013, http://www.dltolleson.com/commentary/powerofstates02.php, (Retrieved 2014).
3 “The Power of the States—Part III.” DLTolleson.com, 13 Dec. 2013, http://www.dltolleson.com/commentary/powerofstates03.php, (Retrieved 2014).
4 “List of State Applications for an Article V Convention.” Wikipedia, Wikimedia Foundation, 30 Mar. 2019, https://en.wikipedia.org/wiki/List_of_state_applications_for_an_Article_V_Convention, (Retrieved April 21, 2019).
7 “Discussion on Article V of the Constitution.” C-SPAN.org, 8 Dec. 2014, https://www.c-span.org/video/?323119-1/discussion-article-constitution, (Retrieved December 29, 2014).