America's Titular Sovereign

            Old Gadfly:  Gentlemen, let me ask you a question.  Who has sovereign power in America?

            IM:  The answer is easy:  “We the People” as indicated in the first three words of our Constitution.

            Old Gadfly:  Is that true in actuality, or merely in theory?

            IM:  I think in actuality.

            Old Gadfly:  As in delegating enumerated powers to a National Government?

            IM:  Of course.

            Old Gadfly:  And members of our National Government have been disciplined to act only within the boundaries established?

            AM:  Of course not.  Just consider the growing Administrative State with over 460 agencies, 2.7 million unelected bureaucrats that impose a regulatory regime on millions of Americans.  This is one of the reasons our pocket Constitutions have been replaced with the Constitution Annotated, now nearly 3,000 pages long.  The Congressional Research Service is charged by law (a 1970 joint resolution by Congress with large Democrat majorities in both chambers) to periodically update this document with analysis and interpretations of Court rulings.  There is a growing progressive faction that believes it is far more expedient to “amend” the constitution through the court, which has been very deferential to expanding powers by the legislative branch.  In 2005, Roger Pilon gave compelling testimony to Congress  on this shift.  Even Constitutional scholars such as David Strauss argue for a “living Constitution” in his book  by the same title, whereby common law and tradition update the Constitution, which is very similar to the British system--a system with no “written” Constitution.

            IM:  But Article V of the Constitution establishes how “we the people” determined the Constitution would be amended.  How is the National Government getting away with its disregard for this sovereign power?  Have the people become titular sovereigns?

            AM:  Article V provides two methods for proposing amendments:  Congress can propose (it only takes one member  in either the House or Senate) and States can apply for a convention for proposing amendments.  Since 1789, more than 11,500 amendments have been initiated within the Halls of Congress.  Only 33 were actually proposed to the States, and only 27 of those were ratified by the States.  Congress has been very successful with its “pocket veto” in voting down any amendment that would take away any of its power, even if it is unconstitutional.  The second method has never happened, even though today, 41 of the 50 States have one or more active applications (about 275 total—see data provided by the Article V Library) for a convention.  The Constitutional language says, “on the Application of the Legislatures of two-thirds of the several States, [Congress] shall call a Convention for proposing Amendments.”  It does not qualify the type of application or assign any conditions in terms of what constitutes “an application.”  Once 34 or more States have passed a resolution or application, Congress is mandated (“shall”) to call a Convention for proposing amendments.  The language does not limit the convention to a single or specific amendment.  This decision rests with the delegates, commissioned by their respective States, assembled at the Convention.  State legislatures can further limit delegate authority in its commissioning language.

            IM:  Yet, there is a growing body of legal and scholarly literature that finds many issues with a simple and straight-forward reading of the language.  There has never been a Convention for Proposing Amendments; yet, the scholars will provide all sorts of “historical precedent” to complicate or discourage such a Convention.  Thus, academic and ruling elite have usurped the sovereignty of “we the people” in deference to a more enlightened oligarchy.  In actuality, “we the people” have become titular in effect.

            AM:  When do you think the intended sovereign will wake up?  Timothy Sandefur is the author of The Permission Society:  How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do about It (see here  for an excellent presentation on the book).    The thesis implied in the title is well supported in his set of evidence-based arguments.  Americans are losing unalienable rights.

            IM:  The Constitution was inspired by fundamental principles explicitly stated in our Declaration of Independence.  Jefferson cautioned future generations to have the courage to exercise their sovereignty in order to protect our unalienable rights:  “That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”

Old Gadfly:  The great peace and prosperity (Safety and Happiness) the vast majority of Americans enjoy today are Blessings of Liberty that many in our society take for granted.  Comfort breeds complacency, such that political factions seeking greater power are manipulating our political system via soft amendments (via court rulings) to shift sovereign power away from “we the people” to an enlightened ruling class.  History has recorded these transient failures for centuries.  These are the historical precedents that the enlightened ruling elite do not acknowledge or simply ignore.

AM:  We need a Convention of States for proposing amendments to restore sovereign power to the people.

Old Gadfly:  Yes, and I have confidence in the virtuous deliberations that would take place.  Given an event that stands to achieve a significant historical impact on the scale of the abolition of slavery, Convention commissioners would rise to the expectations, transparency, and accountably such an event demands.  We have far more faith in the decency and courage of “we the people” than our enlightened ruling elite.  The former seeks to protect our unalienable rights.  The latter merely seeks power.