After years of study of our situation, I have concluded that there are just two things we can do, and that have to be done in tandem. The first is nullification commissions, discussed at http://constitution.org/reform/us/tx/nullification/nullcomm.htm , and the second are amendments, discussed at http://constitution.org/reform/us/con_amend.htm .
Nullification commissions would mobilize public opposition to current unconstitutional federal practices, but there are limits to what those could do to end most such practices. That would lead to amendments, which would have to be pursued carefully, to avoid opposition at critical stages. The way the 27th Amendment was adopted is instructive. That was mainly the result of the efforts of one person, going from state legislature to state legislature. The key to his success that that he did not arouse any opposition. He proceeded quietly, building support without a lot of public attention.
The key to getting the right amendments is to get state legislators to propose an amendment to Congress, the same language from multiple states, with the demand that Congress adopt and send back that exact wording. There is not likely to be much opposition at the first stage, because all the state legislators are being asked to do is send a letter to Congress. However, if the same amendment was demanded by the legislatures of 2/3 of the states, Congress, fearing a constitutional convention, is likely to adopt the proposed amendment and send it back to the states for approval by the necessary 3/4.
Some confusion seems to persist about my list of proposed amendments. I am only pushing the first two groups, the clarifying and the remedial amendments, because they would be to restore compliance with the Constitution as originally understood. The third group, the substantive amendments, are mainly directed to those who might want the federal government to do things it is doing now that are unconstitutional, and who would oppose the clarifying amendments if they didn’t have amendments of their own to push. I wouldn’t push them, but if they are going to want to do so, then it is better to give them some that are well-written rather than what they would probably write on their own. If we are going there in public discourse then it is better to frame the issues competently.
Finally, to dispose of one fear, about the danger of an Article V convention, or "con-con". There is no way 3/4 of the states are going to approve of a completely new constitution, much less of one that might allow further amendments with less than 3/4 of the states. The larger and more complex the amendments, the more opposition there would develop. The most that can happen is the adoption of one fairly short amendment at a time, on one subject. That is why I drafted my proposed amendments to be adopted one at a time. Each one can stand alone, because it may have to. Of course, to deal with all the usurpations we would eventually need to adopt all of them, and probably some more, but the problem needs to be broken into manageable steps to have a chance at working.
There is only one way a con-con plays into my proposal: as something that would scare enough members of Congress into adopting a proposed amendment demanded by 2/3 of the states. There is no chance whatsoever of Congress ever allowing a con-con to happen.
An Article V convention can’t ratify its own proposal. All it can do is submit a proposal to the states for ratification by 3/4, and there is no way they would approve a constitution that would reduce that. Maybe to increase it, but they are not going to vote to reduce their power.
Now one might more reasonably argue that if the 16th Amendment could be deemed ratified by fraudulent reports of ratification by states that didn’t ratify it, and by a mere report of ratification by a clerk in the office of the Secretary of State, then what could prevent a con-con from having its proposal “ratified” by fraud? The answer is nothing but a public uprising, but hopefully that would happen if they tried that.
After all, if they are going to resort to that kind of fraud, there is also nothing to prevent them from holding a fraudulent con-con and announcing a fraudulent proposal of it. If the American people stand by, the opposition doesn’t need a con-con or anything else. They can just put out a totally rewritten constitution every day without any formalities of proposal or ratification. That is what dictators do.
And it is essentially what they are already doing now. They are just being more subtle about it.
The opposition are not completely ignoring the Constitution. For the most part they are exploiting what to modern readers are ambiguities in the language. The language is not that ambiguous to one who is fluent in the legal English of 1787, but people today aren’t.
I highlight the ambiguities at http://constitution.org/cons/constitu+.htm The prime examples are the meanings of “regulate”, “commerce”, and “necessary and proper”. Most of the usurpations of the federal government are based on misinterpretations of those terms. To understand them as the Framers did, I researched writings from before 1787, many of which are only to be found in old archives. Most people are not going to do that. Therefore, I propose amendments which define the terms to make clear what they meant in 1787, and are supposed to mean today.
This process is much like that you may have experienced in making rules for your children. They will typically be very good at finding loopholes in your rules, so that you keep having to elaborate on them to cover all the cases the kids might come up with. You do that by making simple general rules more and more specific. That is what we have to do with the Constitution. It may become a much longer document, but there may be no good way to avoid that. Brevity is great, but sometimes one just has to use more words to cover all the cases.
Unfortunately, when one is up against people trying to wiggle around simple language, sometimes the only way is to get more specific. If you were to argue that some action of the feds is barred by the Tenth Amendment, he would just come back by arguing that he is not violating it, because it is authorized by the Commerce and Necessary and Proper clauses. Then the argument gets into what those clauses mean, and to find out what they mean, it takes more historical research than most people are going to be willing to do.
If you were to argue that some right is in the Ninth Amendment, the opposition is likely to respond, “Where is it in the Ninth Amendment?” Then you are back to historical research on what the unenumerated rights were. I’ve done that research. It is not easy. Took me many years. We need to lift many of those unenumerated rights out of the Ninth and enumerate them. I have proposed how to do that at http://constitution.org/9ll/schol/pnur.htm
The meaning of the Constitution is not so clear to lazy lawyers or the undereducated general public today. Most of those are easily confused. Making it clear to them is a daily challenge for me, and I can only reach a few of them. As for our rights, it is easy to assert we have them, but if you try to argue that in court the opposition will ask you to prove you have that particular right, and argue that the Commerce or other clause provides the authority to infringe it.
I am currently embroiled in an argument in another forum consisting mostly of lawyers over whether we have a right to a presumption of nonauthority. I argue that authority has to be proved, and if not proved, the official doesn’t have it. That seems rather basic, and I am old enough to remember when no one would dare to argue to the contrary, but now I am having to do so, because even educated people today (at least in having academic credentials) don’t start from the same basic foundations of understanding of the principles of law.
It has been said that barbarism is never more than one generation away from overcoming civilization. The truth of that is something I confront every day. Things that were taken for granted fifty years ago are not being recognized as valid today. Far from having a common language of discourse, it seems more like we have the “confusion of tongues” from Genesis.
We are not going to be able to regain control over officials by a straightforward electoral process as long as tax-getters outnumber tax-payers and the tax-getters are better organized. We are not going to get majorities to make the reforms needed. The best we can hope to do is to leverage structural and procedural reforms that undermine the opposition until we can overcome them. That is not a simple, straightforward process. I have outlined how to do it. The rest is up to people like you.
Forget the con-con bogeyman. It is just being used to subvert real reform efforts. Again, I set forth all that in my proposals. Read them very, very carefully.
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