Published: Monday, 20 November 2017 09:08
So the other day I stumbled across this website, the Convention of States. It is a grassroots effort to activate Article V of the Constitution, which is a way for the States to make Amendments to the Constitution outside of the federal governments control. To this point, all twenty-seven Amendments have been by Congress proposal (by a 2/3rds super majority) and ratified by 3/4ths of the states. This website proposes the other method, where 38 states (3/4ths of the States) propose and agree on amendments all by themselves.
The list (without specifics) of proposed amendments are:
- A balanced budget amendment
- A redefinition of the General Welfare Clause (the original view was the federal government could not spend money on any topic within the jurisdiction of the states)
- A redefinition of the Commerce Clause (the original view was that Congress was granted a narrow and exclusive power to regulate shipments across state lines–not all the economic activity of the nation)
- A prohibition of using international treaties and law to govern the domestic law of the United States
- A limitation on using Executive Orders and federal regulations to enact laws (since Congress is supposed to be the exclusive agency to enact laws)
- Imposing term limits on Congress and the Supreme Court
- Placing an upper limit on federal taxation
- Requiring the sunset of all existing federal taxes and a super-majority vote to replace them with new, fairer taxes
You see, this is one of those "sounds good, but is it a good, sound idea?" kind of things. I do not have a large fear that this convention would propose a repeal of one (or more) branches of the federal government, or the repeal of certain Amendments (such as the 2nd Amendment).
My view on this is, it's not the laws that need to change, it's the people who interpret and enact the powers enumerated in the Constitution. This falls under a heated discussion frequently performed by wargamers, known as the "RAW vs. RAI" (Rules as Written/Rules as Interpreted) debate. This argument frequently put forth by rules lawyers boils down to a "The rules don't say I can't, so this must mean I can" argument. Which is how our current overlords see things, instead of the "if it's not in the Constitution we can't do it" outlook, which is the proper way. The intent of the Constitution was to define the structure of the federal government and restrict its ability to narrowly defined parameters.
Now let me Fisk the above list.
Balanced Budget: As I alluded to just above, an unscrupulous politician will find a way around any written law. If they can't find a way to parse the words to mean what they want ("It depends on what the meaning of 'is' is"), they will make shit up. If you try to make a rule that covers all the bases, you'll end up with a document that is about as long as the EU's Constitution. Instead of making a law requiring a balanced budget, how about "If, during a term of Congress (a term is two years, the 115th Congress is the current one) a spending deficit has occurred, no member of that Congress is eligible to run for re-election in any future federal election or serve in any position of the federal government after their term of office." The rule and intent here means, "if a Congress overspends, any amount at any time, the 535 members of Congress, once their individual current term expires, can never serve in the federal government in any capacity again." Elected, appointed or hired. This law then invokes leverage of what Milton Friedman called "a person's enlightened self-interest." It won't matter if you voted for the appropriation that resulted in the deficit or not. If there was one, you're out at the end of your term and you can never return.
General Welfare Clause & Commerce Clause: I fail to see the need to "redefine" these clauses, since they are quite clear and what we need is moral citizens who adhere to the original intent of these clauses. Again, we can define it all day long, however immoral people will find a loophole to subvert it or just ignore it no matter what.
International treaties and law: I am unaware of any law requiring that US judges or legislators consider international law or treaties when writing or applying judgements to our current laws. I have been known to be wrong once or twice. I do know that some Judges have used International law to justify their rulings, however again I am unaware of any requirement they do so. I believe a simple return of the Judiciary as a whole to the "four corners of the law" concept would solve this issue.
Executive Orders and Administrative Law: Executive Orders were originally designed as a tool for the president to direct the agencies under his authority. What needs to be done in this case is to repeal the Administrative Procedure Act of 1946. This allows Executive Branch agencies to draft, enact and enforce administrative regulations that have the force of laws equal to those laws passed by Congress. Now, these agencies are not supposed to make things up out of whole cloth, these regulations are meant to "fill in" broad parts of the laws passed by Congress. Case in point, the Clean Water Act of 1972, which gave the EPA power to regulate discharges into the "Navigable Waters of the United States." Recently, the EPA expanded its definition of "Navigable Waters" to include all waters of the United States.
I have to ask this: Do you think it is a good idea for your local police/sheriff to create laws (with or without "public input"), separate from the local legislature and then enforce them? Say the police start handing out $25 "warning tickets" to motorists who go over 40 MPH in a 45 MPH zone, because "they don't want you going over 45." I'm reasonably sure you would be against that. Then why should the EPA get to create then enforce laws that they, not Congress passed? All we have to do is look at Article I, Section 1 of the Constitution:
All legislative powers (i.e., the ability to make laws) herein granted shall be vested in a Congress of the United States..." [emphasis mine]
I can see how granting executive branch agencies the power to make regulations with the force of law parses these words and subverts the Constitution. Because if Congress can't do it (i.e. make laws in areas not defined by the Constitution), they can give authority to an agency close to that line, then feign shock and outrage when the unaccountable bureaucrats of said agency runs amok with its regulations, going into areas the Congress can't get to Constitutionally.
Taxation (upper limit/sunsetting): Believe it or not, people usually act in their own self-interest. If we make the laws so Congress is ineligible for re-election if they run a deficit, I can assure you any tax measure that will raise enough revenue to prevent a deficit will pass unanimously, even if the lowest tax rate is set to 100% of income. I am 104% against any type of direct democracy. I will make an exception here. Since we have tied a legislators political future to their spending habits, it would not end well for the People to give them control of raising the revenue that they mean to spend.
I would propose here that we enact a "flat tax" system, instead of the regressive "last dollar" tax system we have now. This means if you make certain levels of income, you are taxed at different rates. For example, your first $20,000 of income is taxed at 8%, then income between $20,001 and $40,000 is taxed at 12% and so on. We should pick one tax rate that applies to everybody for all earned income. The kicker is any proposal to raise the tax rate is proposed by a given Congress, then is put on the federal ballot for the next election of Congress. Two-thirds (67%) of the popular vote must vote in favor of any tax increase for it to be ratified. I would also require that the federal tax filing date to be the Friday before a federal election, just so it's fresh in everyone's mind how much they pay for the government they are getting.
My amendment: There is one change I want to see, and that is repeal of the Seventeenth Amendment, namely the direct election of Senators. If you study the Federalist Papers and other writings of our Founding Fathers, you will see they quite clearly understood human nature (and that of governments run by humans). It is part of our make up, individually and collectively to acquire and maintain wealth and power. The Constitution was designed to keep those urges in check by dividing power among the several stakeholders, as we call them today. We have a bicameral legislature because Congress is supposed to represent the interests of the People (House) and the State governments (Senate). With this Amendment, the Senate became another "People's House" (a term used to describe the House of Representatives) because the people elect them, just state-wide rather than by district. The State governments no longer have a say in federal affairs.
I titled this article in this way because the Constitution, for all its flowery words, Divinely inspired concepts and lofty intent, is still just a piece of very old parchment. It cannot do anything without people acting in a moral way to follow the rules and intent of this great document. A restraining order (a piece of paper issued by a judge that prevents contact between two or more people) has never stopped that abusive spouse from finding and killing the spouse who fled the abuse. All it can do is detail consequences for its violation after the violators capture by police, but too late to save a life.
Let me end this with these words from John Adams and I implore you to deeply Grok them: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."