Following is an address I gave in Orlando Florida on April 26, 2013 on the need to use the Constitution’s Convention-Amendment Process to rein in Congress:
My initial background was in the private sector, but I served many years in academia. I spent much of that time teaching constitutional law and constitutional history to aspiring lawyers. Four years ago, when I was still on a law school faculty, I was looking for a new topic to write on, and turned my attention to the Constitution’s amendment process. I have to admit to you that back then I didn’t know any more about Article V than most constitutional law professors do—which is to say, not much. For some reason, Article V is not typically taught in law school curricula. I also found that there hadn’t been much scholarly writing on the subject. And as often happens in constitutional law, most of the writing that had been published really wasn’t very good. By that I mean it was incompletely researched, or it was driven by the author’s personal agenda—and usually both.
When I left academia and came to the Independence Institute full time, a person who served as a mentor was one of those elderly, gracious ladies whose wisdom extends to just about everything and everyone. She used to say that our biggest problem usually isn’t what we don’t know. Our biggest problem, she said, is all the things we know, but that just aren’t so.
When I started my research on Article V, I knew a lot about the subject that just wasn’t so. For example, I thought that a convention for proposing amendments is a “constitutional convention.” I thought that it was uncontrollable. I was wrong.
My research opened my eyes to a part of the Constitution and to a part of American history that was entirely new to me. As it turned out, it was entirely new to a lot of other people who read my work, including other constitutional scholars, some of whom are now building on my research and learning even more new things. Later, I’ll mention some what we’ve learned. But first let’s look at what really brings us together this evening.
America is in trouble. Perhaps the biggest peacetime trouble she has been in since our country was founded. And for perhaps the very first time since the Civil War, the very idea of America—the fundamental concept of America—is in trouble.
The fundamental concept behind America of course, is that all people are endowed by nature and by nature’s God with rights to life, liberty, and the pursuit of happiness, and that to secure those rights, governments are instituted among men, deriving their just powers from the consent of the governed. Adherence to that simple idea freed Americans to propel this country to a level never before seen.
America’s truly explosive rise occurred during our first 150 years—the period beginning with our Founding and continuing until the time when the federal government’s mistakes helped cause, and prolong, the Great Depression of the 1930s. We began that period as a ramshackle country on the outer edges of civilization. We ended it as the greatest nation in the world. This was the time when motorized transportation and instant communication were invented and perfected, mostly in America. It was when we learned to harness electricity. It was when we developed modern medicine, and a hundred thousand devices to make life easier. It was also when we freed the slaves and brought about the emancipation of women.
Our progress since the Great Depression has been considerable, but much of that progress represents momentum from our first 150 years. If you doubt this, think of the extent to which modern Internet and computer technology rests on a single 19th century accomplishment: the taming of electricity.
Why was America so successful? Because between the time from the Founding and the Great Depression most Americans enjoyed a degree of economic liberty that is almost unimaginable today. As historian Samuel Eliot Morison has observed, in most facets of life, government—especially the federal government—was almost invisible. Government peacetime spending averaged around 5% of the economy, compared with 40% now.
Americans enjoyed far more freedom from government taxes, regulation, and control. They enjoyed almost unrestrained freedom to innovate, earn a living, run a business, hire workers, take a job, join or not join a union, keep their own pay, form contracts on their own terms, keep and bear arms, open schools, build charities, and worship and speak as they pleased. They could do all these things without worrying about what the government might do to them—like my friend in Libby, Montana who was almost driven out of business by the EPA, which for political reasons persecuted him for years over a small drain that wasn’t even polluting anything. Or like me, when I had employees and received almost simultaneously from the unemployment insurance authorities a letter demanding that I immediately pay up a $30 deficiency, and another letter telling me I’d overpaid by $30.
America became great during a period when people simply didn’t have to deal with this sort of aggravation and expense. If you needed to start climbing the economic ladder, you could go to any local business and get a job with just a handshake. No intrusive paperwork. No social security numbers. No payroll withholding. Just a few state or local regulations to protect life and health. If the boss liked your work, he could keep you on without worrying about whether you were the 50th employee who would trigger the Obamacare health insurance mandates or just the 49th employee, who would not. You didn’t need health insurance anyway, because despite the limited technology and the fact that doctors still made house calls, medical care was far less expensive then. And if you had a catastrophic illness, there was a vast web of local relief agencies, mutual benefit societies, family networks, and private charities to help you out. If your boss couldn’t keep you on, well, you could freely move to another job that might be better.
Or you could go into business for yourself, without the government imposing insurmountable fees and barriers to your doing so. You could buy and own land without suffering the kind of official harassment now inflicted on so many landowners. You could keep almost everything you earned for the support and enjoyment of yourself and your family. Maybe become rich. Those times were empowering, exhilarating, exciting beyond belief.
And unlike today, young Americans could actually get jobs. They didn’t have to live in their parents’ basements leeching off daddy’s savings. They could earn their own way . . . start saving money in sound, uninflated, gold coin. . . raise their own families on their own resources. . . and build their own careers.
The politically-correct text books tell you that America’s success was the result of natural resources, ethnic diversity, government programs, and the oppression of minorities. This is largely balderdash. It is true that some minorities were much less free than the majority. It is also true that we have great natural resources and ethnic diversity. But those were not the fundamental reasons for America’s success. Because those things were true of many other countries as well—countries like Russia, Brazil, China, and India that, unlike America, remained backward and poor. What made the critical difference for America was freedom under law.
Freedom under law became compromised, though, when the federal government used the excuse of the Great Depression to break down constitutional limitations and greatly expand its reach. By 1960, just a few decades after the Depression ended, government was absorbing 25% of what had once been a free economy. Today, as I mentioned, it is absorbing nearly 45%.
A government founded to protect liberty has become an instrument for destroying liberty. A government founded to enable all to pursue happiness has become an instrument of envy, theft, and greed. To a great extent our economy has changed from one driven by people aspiring to greatness to one dominated by the scramble for political favors.
Most of us here this evening are among those who understand the problem. For the past few decades, we have tried to cure it. We have sponsored programs of civic education. We have worked to elect good people to office. We have attempted to reclaim the Tenth Amendment. Sometimes we have gone to court. And we have had a few real successes.
But the few successes should not obscure one glaring truth: Over the long haul, we continue to lose the fundamental concept of America. Twenty years ago when Bill Clinton was President the situation was worse than it had been 20 years before that. Today it is so much worse than when Bill Clinton was President that conservatives have begun to think of Hillary Clinton, of all people, as a more reasonable alternative to President Obama.
In my view, we are losing because we have tied ourselves to a handful of losing tactics. We have become comfortable fighting losing battles.
But if our goal is not merely to feel comfortable—if our goal is to win back for ourselves and our children that which has been slipping away—then we have to stop limiting ourselves to the things that don’t work, and start doing things that will work.
Let me give you a sobering historical example that may cast some light on what is in store for us if we do not adopt a new approach. More than 2000 years before our Constitution was written, another people located on what was then the outer edge of civilization established a free republic. They were only a small town in those days, but they were destined to become the greatest people in the world. Our own Founders looked to them for inspiration. Their system was based on principles of stoic virtue, respect for tradition, political accountability, military valor, and—to an extent unusual in the ancient world—human freedom. The Roman Republic lasted for 500 years, and its record still stands as the longest-lived major republic in the history of the planet.
Roman civilization eventually expanded throughout the Mediterranean World. Colonies of Roman citizens were established from Asia to Spain.
Roman leaders faced the challenge of making this extended state work while preserving the essence of the Roman constitution. One way they might have done so would have been to replace their system of lawmaking by the urban mob with an assembly of representatives from citizens throughout the Roman world. But they did not make those changes. And slowly, over a period of nearly a century, their constitution deteriorated. Great statesmen like Marcus Cicero were aware of what was happening. But they failed to arrest the decline.
They failed to arrest the decline because they tried to do so mostly by hitting the reset button until it wore out. In other words, they repeated over and over the same tactics that had failed before. Rome could have survived as a free government if its statesmen had shown more vision. But they did not.
When a system is wearing out, time is always limited. And so it happened that, for the Roman Republic, time to make the necessary changes did eventually run out. When elected Roman leaders failed to make the decisions necessary to preserve liberty, the decision was taken away from them. It was taken away by Julius Caesar and by his grand-nephew Augustus, who appropriated the state to their own purposes. For Romans, free government was gone forever.
But nothing was inevitable about this. Rome could have preserved its free constitution by making the changes necessary to keep it healthy while there was still time.
We Americans must not repeat their mistake. We must make the changes necessary to preserve freedom while there still is time.
Fortunately, we have the tools right at hand. They are our inheritance as Americans. Our Founders bequeathed them to us. They are lying right here, in Article V of our own Constitution. They are still fresh and new, and ready to use.
Article V is the Constitution’s provision for amendment. Today we think of constitutional amendment mostly as a way of responding to new conditions. The Founders recognized that purpose, but they also saw amendment as a way to prevent and correct government abuses.
Because the Framers recognized that the federal government might abuse its power, in their early drafts of the Constitution all amendments would come solely from a convention of the states. It was only when Alexander Hamilton pointed out that Congress might have good amendment ideas as well, that the Framers decided to give Congress, as well as the states, power to propose amendments. But to prevent an abusive Congress from obstructing needed changes, the states also retained their authority to propose. Their vehicle for doing so was what the Constitution calls a “convention for proposing amendments.”
So what is this “convention for proposing amendments?” That was one of those things I thought I knew four years ago, but what I knew wasn’t so.
The answer to the question comes from a great tradition of American interstate conventions, and from the experiences during the 224 years since the Founding.
When the delegates to the Constitutional Convention met in Philadelphia in 1787, it was only the latest in a very long series of diplomatic meetings among the different colonies and states. These meetings were called conventions. In the century before the Constitution was written, colonies and states met in convention on average of once every 40 months. They addressed subjects like Indian relations, foreign relations, common defense, currency inflation, and interstate trade. They met in Albany, New York in 1754. . . in New York City in 1765 . . . in Philadelphia in 1774, 1780, and 1787 . . . in York Town, Pennsylvania in 1777 . . . in Hartford, Connecticut in 1779 and 1780 . . .in Providence, Rhode Island in 1777 and 1781 . . . in Boston, Massachusetts in 1780. . .and in Annapolis, Maryland in 1786. And that list represents less than half of the conventions held.
After the Constitution was adopted, there were fewer interstate conventions, since the U.S. Senate served as a place where states could meet. Yet the American convention tradition continued. For example, there was an interstate gathering in Nashville, Tennessee in 1850 and a convention of 26 states in Washington, D.C., in 1861.
Each of these conventions was given a specific task or tasks to perform. Each had to remain within its prescribed limits, and not stray into other areas. This was true also of the 1787 Constitutional Convention. I mention this because there is an old myth that the Constitutional Convention was called only to amend the Articles of Confederation, but that it ignored its prescribed limits. But this old myth is just that—a myth—another thing I once thought I knew, but didn’t. . . .
Besides this great convention tradition, our understanding of Article V is informed by 224 years of experience and by important decisions from the United States Supreme Court and other arms of the judiciary. Here is one example: You may have heard the claim that a convention is sovereign and, despite limits on its authority it can do anything it likes. But we already have court cases showing us that that is not true. In fact, actions outside a convention’s legal instructions are void.
In the same way, some people persist in claiming that the convention for proposing amendments is a “constitutional convention.” By using that phrase, they display a lack of knowledge about the American tradition of gatherings among the states. In our history, we have had at least 31 conventions among the colonies and states, and only one has been a constitutional convention. Thirty have not been, and a convention for proposing amendments is not one, either.
In his recent decision for the U.S. Supreme Court rejecting the Medicaid mandates in Obamacare, Chief Justice Roberts famously said, “The states are separate and independent sovereigns. Sometimes they have to act like it.” Article V gives them a chance to act like it.
When a state legislature thinks an amendment might be a good idea, it sends a resolution to Congress, and if two thirds of the legislatures send resolutions for the same kind of amendment, then under the Constitution, Congress must call an interstate convention on that topic.
This interstate convention is essentially a diplomatic task force among representatives of the state legislatures acting as sovereign entities. At the designated time, each legislature sends a delegation (it’s called a “committee”) of delegates (they’re called “commissioners”) to the designated place. These committees of commissioners decide whether to propose amendments, and, if so, they draft the language. The convention adopts its own rules, and elects its own officers. Because sovereignties are inherently equal, each state committee has one vote. And as its name suggests, a “convention for proposing amendments” has power only to propose, not to ratify. Any proposal becomes part of the Constitution only if 38 states ratify it.
Now I’d like to remind you of a point I made earlier: The Founders added the convention for proposing amendments to the Constitution precisely to correct the federal government if it ever became dysfunctional. They predicted that if Congress got out of line, Congress probably would not propose amendments to correct itself. And their prediction was on target. Because in the 224 years since Congress proposed the Bill of Rights, it has never—with the minor exception of repealing Prohibition—has never proposed an amendment that reduces its own power. It has passed several amendments increasing its own power, but not reducing it.
Now—imagine that James Madison and John Dickinson were here in this room today. Suppose we told them that the federal government had far exceeded its constitutional authority. That Congress had become an auction-house for special interests. That Congress had run up a huge debt because 45 times in the last 50 years it had refused to even balance its own budget. That federal politicians had created a dependent class of citizens whom the politicians could manipulate for their own purposes. In other words, suppose we admitted to James Madison and John Dickinson that the federal government had re-created the very situation the British government tried to foist on the colonies in the 1770s, and that their generation had fought the American Revolution to prevent.
When we told them all this, no doubt James and John would ask us a very natural question. They’d ask if we had tried to correct the problem through the state-driven process in Article V. And when we sheepishly admitted that, no, we had not—that we had been deterred by ignorance and by the hysteria of alarmists and cranks—then what would these Founders say?
They would tell us that the whole mess was our own darn fault.
And they would be right.
It has been our own fault. But because we have been at fault, it does not mean we must stay at fault. The time to correct the situation is now!
If we want to save America. . . if we want to save the fundamental concept of America—then I suggest we act on five principles. Those principles are Vision, Unity, Determination, Legality, and Organization. Together, they add up to Victory!
First: Vision. We must have a clear idea of the kind of America we want to have. One where individual rights are respected. An America where people understand the difference between rights, to which you are entitled, and government largess, to which you are not. An America of limited government, personal responsibility, and self-reliance—an America prosperous and free.
Unity. Many of us have different ideas about how to use the Article V tools our Founders bequeathed to us. That discussion is normal and very healthy. We also must remember, however, that we are all on the same side.
Determination. Like the Founders, we must be willing to commit our lives, fortunes, and sacred honor. Many in this room have already done so.
You see, it requires determination to accomplish any real political change. The world recently lost a very great woman who showed what determination can do. It will take determination to overcome those well-intentioned but misguided souls who fear the cure our Founders gave us more than they fear our descent into national destruction. But once we get past them, we’ll need even more determination to overcome the power-brokers in national politics, the media, and academia.
Those people control much of the high ground in American power politics. But just as the late Margaret Hilda Thatcher overcame similar forces in Britain, largely by the force of sheer determination, so also will we overcome them in America.
Legality. If we keep our activities strictly legal, this will not prevent us from being vilified in the media by the most unfair sort of slander. The history of the Tea Party proves that. But if we keep our activities strictly legal, it will help us prevent failure and achieve victory.
Those with vested interests in the status quo have plenty of money for lawsuits. If we do not follow legal procedures, those lawsuits will undo all our hard work. The experience of the Term Limits movement is instructive in this regard. In the 1980s and 1990s, advocates for term limits tried to use Article V, but they violated the Article V rules as the courts had applied them. Their opponents sued, and the term-limits supporters lost in the courtroom many of the battles they had won in the political process.
Make no mistake: Once this campaign starts to succeed, we will be sued. So don’t give the opposition any reasonable way they can win their lawsuits.
Vision, Unity, Determination, Legality—and finally, Organization. To win, we need grass roots support and financial help in every state. In other words, we need your help—your help, the help of your state lawmakers, and of financial contributors, and of your friends and neighbors. The campaign to save America will succeed only if it is a mass movement, in which all understand that our future and the hopes of our children and grandchildren are at stake.
Like the Romans who tried to save their republic, but did too many ineffectual things for too long, until they lost their freedom entirely, we do not have unlimited time. Eventually, of course, our country will go bankrupt. But there is another deadline, too. If we do not apply Article V correctly and for good ends, then we will see it used by others incorrectly, and for bad ends. Many people of influence in academia and politics, are beginning to speak of their own version of Article V—one where they really do have a new “constitutional convention”—which they use to grow government further, and further curtail our liberties. To prevent being pre-empted by those people, we must move, and do so now.
Fortunately, the moment is promising. The American people understand the debt problem and they properly blame Congress. Most state legislatures are controlled by majorities who also understand the problem. Encourage those lawmakers to apply for a convention to address our national fiscal crisis. Contribute to groups working to restrain federal deficits through Article V. Set up websites. Talk to your friends—both your Facebook friends and your real friends—and support state legislators who understand the problem.
This is more than a fiscal issue, more than an issue of current politics. It is a long-term issue with moral and historical overtones. It is the question of whether the fundamental concept of America can endure. It is also a question of how those who come after us will live, and how those of us alive today will fare in the history books they write.
May they say of our generation that we labored rightly in a just cause, and in so doing we rose to greatness.