Using the Constitution To Save America

by Paul S. Gardiner

Author's Note: The attention of many Americans currently is focused on Special Counsel Robert Mueller's investigation of Russian collision in the 2016 national election. Much attention also is devoted to allegations of various criminal actions being committed at the highest levels of the federal government. While these situations rightly warrant close attention, we Americans must not overlook nor minimize the importance of several serious, systemic problems that only the full use of the United States Constitution hopefully can fix. Two of these ongoing problems are (1) a monstrously growing national debt of over 20 trillion dollars; and (2) a deeply entrenched system of patronage and self-serving behavior exhibited by many long term members of the US Congress.  As explained herein, there is an urgent need for leadership and unity of effort to use a heretofore unused component of the Constitution to address and hopefully solve these problems as well as problems with the federal government egregiously exceeding its Constitutional authority.

        

Many Americans most likely will be surprised to learn that a very important component of the United States Constitution has never been used since the Constitution was written in 1787. If this component is used, it could very well solve several pressing problems that exist at the federal level of government.  But as the below narrative explains, there is tremendous opposition to the use of this particular Constitutional component by several groups, including many organizations funded by multi-billionaire and leftist George Soros and others like him who desire for America to go bankrupt and otherwise evolve into somewhat of a socialist state.  Opposition also comes from a few right-wing oriented groups for various reasons.

        

The unused component is embedded in Article V of the Constitution and relates to how state government legislators have inherent power, as described herein, to propose urgently needed amendments to the Constitution, especially critical amendments that members of the US Congress absolutely refuse to propose!

            Below are two examples where Constitutional amendments need to be proposed by state legislators:

            (1) America today has a national debt of over 20 trillion dollars! The interest that has to be paid on this amount of debt could soon amount to more than America's national defense expenditures---a totally untenable situation.  Exacerbating this problem is the fact that members of the US Congress refuse to move forward with an amendment to the Constitution requiring that the federal government fiscally constrain itself and responsibly operate on a bona fide balanced budget.

 

            (2)  Serving in Congress has become a long term, often self-serving profession rather than a privilege of public service and relatively short term civic duty as envisioned by America's Founders in 1787.  Back then, the average life span was approximately 50 years which means the Founders were not terribly concerned about people serving in Congress in their 70s, 80s, and 90s.  It is a known fact that various mental abilities usually diminish in older age, but yet there are many deeply entrenched, elderly people continuing to serve in Congress.  Members of Congress refuse to move forward with an amendment to the Constitution to limit the total number of years (12 to 15 years for example) that a member can serve.  Such an amendment should allow many more citizens to serve in the Congress hopefully with new ideas, greater energy, sharper minds, and much less indebtedness to various interest groups and donors.

   

Most Americans probably will agree that presently there is an overabundance of bitterness and divisiveness between many Republican and Democrat members serving in the US House of Representatives and US Senate.  Indeed, it is very wishful thinking to hope for a two-thirds majority of the members in both House and Senate (required to propose an amendment) to ever agree on any Constitutional amendment these days or in the foreseeable future.

Thank God the Founders of our great nation had the wisdom and foresight to prescribe a second method of proposing amendments to America's Constitution that is separate from and does not involve members of the US Congress.  This second method has never been used in over 230 years but now is the time to do so!  Article V stipulates that upon application by two-thirds of the state legislatures (34 legislatures today), Congress "---shall call a Convention for proposing Amendments---", commonly called a Convention of States.  The language in Article V makes it very clear that Congress must call this convention upon receipt of the 34 state legislature applications.  Neither the Congress nor any other part of the federal government will have any meaningful role in the operations of and outcomes of this state legislators' convention to propose amendments.  An essential "safety valve" against any rogue type amendment (proposed by Convention of States delegates) ever becoming part of the Constitution is the fact that a proposed amendment must be ratified by the full legislatures (some controlled by Republicans,   some controlled by Democrats) of at least 38 states to become part of the Constitution and law of the land. With the exception of Nebraska which has only one legislative chamber, all other states have two legislative chambers (House and Senate) meaning that any proposed amendment must gain a super majority vote of either 75 or 76 independent legislative chambers in order to become part of the Constitution.  This is indeed a very high bar to reach and thus, functions as a very effective safety valve against any rogue type amendment.

So, what is the current status of effort for 34 state legislatures to apply to Congress to call a Convention of States?  During 2018, there have been efforts by at least 10 different "grass roots" groups to have legislators in their respective states pass resolutions applying to Congress to call for a Convention of States.  The three most active, principal groups are US Term Limits, Balanced Budget Amendment Task Force, and the Convention of States Project.  During the past several years, there has been much duplicity of effort resulting in various state resolutions being submitted to Congress.  Some of the resolutions pertain only to one specific amendment while others pertain to multiple amendments.  None of these efforts in and of themselves have reached the threshold of 34 state applications, and it appears highly problematic that any ever will.  Unless something changes, a Convention of States may never happen, thus preventing and depriving the American people from using a very important element of their Constitution.

A major reason for the overall lack of progress in having state legislators apply for a Convention of States is the tremendously well funded opposition by groups such as the John Birch Society, Eagle Forum, Common Cause, National Association for Gun Rights, and some labor unions.

 

While many members of these groups are, no doubt, well intended, patriotic Americans who deeply care about America, there is strong evidence that multi-billionaire and leftist George Soros is funding many of these groups in one way or another.  This man and others like him desire for America to continue in its downward spiral to bankruptcy and ruin.  The above organizations falsely claim, for example, that state legislators are not capable of managing a Convention of States.  They falsely use the slur “con con” phrase to portray a Convention of States as a "Constitutional Convention" where a brand new constitution will be written.  While conveniently overlooking the ratification "safety valve" previously mentioned, they falsely state that a convention will result in a “runaway convention" thereby destroying the Constitution and causing the collapse of the country.  Regrettably, these "scare" type statements have turned many a state legislator against efforts to call for a Convention of States.

  

The above opposition coupled with the unsuccessful duplicity of effort among different groups desiring a Convention of States begs the question: is there a better strategy for seeking a Convention of States? This observer believes that indeed there is a better strategy, but it requires much cooperation, pooling of resources, and unity of effort among a majority of the groups pressing for a Convention of States.  It may be that a new entity is required (with no vested interest in any particular amendment) to provide the leadership and means to focus all resources and efforts to have at least 34 state legislatures apply for a convention.  As the saying goes, there is strength in numbers, and it is hoped that a pathway to such cooperation and focus in effort will soon emerge.

    

This observer believes that America most definitely needs a Convention of States as soon as possible.  There is so much at stake for the nation.  There is little risk and much to gain from having state legislators fulfill their duty to use their inherent authority in Article V of the Constitution to propose absolutely essential amendments. We John Q. Citizens need to demand nothing less from our state representatives; that they use the power granted to them by our forefathers in Article V!

We citizens also need to strongly encourage and support the close cooperation and focus of effort by a majority of the different groups desiring a Convention of States.  Such cooperation should allow them to pool their resources so that collectively, they can be an effective "fighting force" to overcome the very strong and well funded opposition mentioned above.

Paul S. Gardiner is a retired Army officer living in Hoschton, Georgia, and can be contacted at:  gardpgkg@comcast.net  

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.

Pragmatism versus Politics

Abstract:  President Trump has been in office for a year already.  Despite a growing economy and better labor numbers, the political elite have doubled down on their mission to oppose President Trump’s agenda for Making America Great Again.  Today’s segment on NBC’s Meet the Press provided more evidence.  Disturbed by some of the themes—the political capital of DACA and insinuations of a post-heroic period—it was not until I read a well-timed email from my uncle that I more deeply understood the political elite’s mind set.  They do not understand the difference between pragmatism and politics.  Politics requires glibness and visceral emotions; pragmatism requires reason unconstrained by “looking good” and “feel good” language.

Old Gadfly:  Gentleman, did you watch NBC’s Meet the Press this morning?

IM:  Yes. Amazingly, there was no mention of the Top Secret memo circulating within the halls of Congress about Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) abuse of the Foreign Intelligence Surveillance System Act (FISA) system (see here, here, here, here, here, here, here, here, and other non-mainstream media sources).  Rather, Chuck Todd and four panel members pontificated on the government shutdown, mostly blaming President Trump for injecting chaos into this week’s deliberations focused mostly on the unconstitutional executive order by the previous President called the Deferred for Childhood Arrivals (DACA).  Todd later showed some polling to show why DACA is so critical to elections in districts along the southern border, Florida, and some districts elsewhere in the United States.  It was clear from a Democrat perspective that DACA is critical to their political fortunes by showing “empathy” for those brought illegally to the US by their parents.

 

Old Gadfly:  So, if I understand the implications of Todd’s analysis related to DACA and political fortunes, we can infer that the political elite see DACA as really a political opportunity tied to their political fortunes.  So much for the “Dreamers”—they are mere instruments in the action for political power.

 

AM:  Even Peggy Noonan ventured to claim that President Trump represents the “post heroic” period in American history.  Here is an excerpt from today’s transcript:

Look, as for the presidency, we just past one year anniversary two days into the second year. I think what we are seeing up close every day relentlessly is a post-heroic presidency. A presidency for a post-heroic era. People don't have illusions about how high and upstanding and rigorously upholding of values that the president is. And at the same time everybody in politics around him sees it, sees that it plays fairly well for him, that he is sometimes gross or abrupt or rude in his terminology. So they do it too. It does lower everything. We are living through a cultural lowering.

Old Gadfly:  As a credentialed psychologist, from a psychological perspective I do not believe Noonan truly understands what she is revealing when she says, “what we are seeing up close relentlessly.”  What we are “seeing” is social constructivism by a progressive elite who control the public narrative and the desire to create a culture based on their values.  For example, race is a socially constructed concept that has been very useful for political purposes.  Racism is therefore an inevitable socially constructed concept as well.  Islamophobia, homophobia, xenophobia, misogynist, and the entire litany of similar terms are other examples. More importantly, regarding Noonan’s claim about a post-heroic period, what do you infer from this?

AM:  Obviously, the implication is that Trump represents the antonym of heroic. Think about this.  By implication, Noonan places the previous president (not mentioning him by name to honor his current practice of not mentioning President Trump by name when being critical of him during evening talk shows) in the heroic category.  According to Thesaurus, here are synonyms for heroic: bold, courageous, daring, epic, fearless, gallant, grand, gutsy, noble, valiant, classic, elevated, bigger than life, dauntless, doughty, exaggerated, fire-eating, grandiose, gritty, gutty, high flown, impavid, inflated, intrepid, lion-hearted, mythological, stand tall, stouthearted, unafraid, undaunted, valorous.  Certainly, the previous President can be described with some of these terms.  Yet, pigeon chess master is not one of them—but that would fit more under a psychiatric manifestation of delusions of grandeur, not heroism.  On the other hand, Thesaurus lists the following as antonyms of heroic:  afraid, cowardly, fearful, meek, shy, timid, and weak.  Strangely, none of these terms fit for either the previous President or President Trump.

Old Gadfly:  Ironically, after watching Meet the Press, I opened an email from my uncle.  He forwarded a reflection by Mychal S. Massie, who “is an ordained minister who spent 13 years in full-time Christian Ministry.  Today he serves as founder and Chairman of the Racial Policy Center (RPC), a think tank he officially founded in September 2015. RPC advocates for a colorblind society. He was founder and president of the non-profit ‘In His Name Ministries.’  He is the former National Chairman of a conservative Capitol Hill think tank; and a former member of the think tank National Center for Public Policy Research.  In his official capacity with this free-market, public-policy think tank, he has spoken at the U.S. Capitol, CPAC, participated in numerous press conferences on Capitol Hill, the National Press Club and testified in private session concerning property rights pursuant to the “Endangered Species Act” before the Chairman of the House Committee on Resources.”  Massie explained why President Trump is such a mystery to the establishment in Washington DC and other political elite in political parties, the media, academia, and Hollywood.  President Trump is neither liberal nor conservative—he’s a pragmatist.  He further contends President Trump has risked a hard earned fortune to solve problems both political parties have created, let alone solve.  Sounds heroic to me.  Here is Massie’s article.  I now more deeply understand the political elite’s mind set.  They do not understand the difference between pragmatism and politics.  Politics requires glibness and visceral emotions; pragmatism requires reason unconstrained by “looking good” and “feel good” language.  Meanwhile, those who earn good livings based on ideological politics, glibness, and visceral arguments, will continue droning on and demonizing President Trump while he keeps moving forward pragmatically Making America Great Again.

IM:  Doesn’t President Trump need some help in this process?

Old Gadfly:  Yes, he does.  Help may be on the way in the form of the Article V (of the US Constitution) movement.  Here is an excellent observation from Bob Berry (author and economist), one of the pioneers in the movement:

 [Thomas] Paine’s words ring especially true regarding our present situation.  As he observed, “there is something very absurd, in supposing a continent to be perpetually governed by an island.”  How much more absurd is it today, the whole of our country’s land-mass and its 310 million inhabitants is ruled with an iron fist from a 68-square mile swamp along the Potomac.  Excerpt from Amendments without Congress:  A Timely Gift from the Founders (2012) by Bob Berry

The nearly miraculous part of this movement is that it is nonpartisan.  It avoids political agendas in favor of restoring the sound governing principles of a Constitutional Republic gifted to us by heroic and pragmatic Americans.  Unfortunately, opponents tend to base their arguments on political agendas.  See for example the excellent analysis provided by Dennis Haugh in Political Vertigo and other postings at his website.

 

While the political elite play their political games, let me know if you want to learn more about this self-governing citizen effort (Old Gadfly at oldgadfly@gmail.com)