I am very encouraged by the current debates in the country. There is debate in the Supreme Court over Obamacare. There is debate about President Obama’s use of recess appointments when the Senate is not (or maybe still is) in session. There is debate about the President’s use of Executive Orders to circumvent properly constituted law, or even voiding a properly constituted law.
Ordinary citizens, all over the nation, are beginning to feel comfortable discussing the Constitution of the United States, and that strikes me as a remarkable step backward.
No, stop laughing, that was not a joke or a typo. When I say a step backward, I mean that during the debate over this new idea of a constitution back in 1788-1789, scores of essays and letters to newspapers gave vent to the opinions of ordinary citizens in all of the former colonies regarding the proposed constitution.
The effectiveness of those early debates about the Constitution led directly to the creation of the first ten amendments, the Bill of Rights.
One key thing to realize about those debates would be to understand that the debaters weren’t all Ph.D.s (even Benjamin Franklin’s doctorate was only honorary). They were not all university dons. They weren’t Nobel Laureates. They were not all captains of industry. They weren’t professional politicians.
They were farmers and craftsmen and other ordinary citizens who had just lived through the hell of the American Revolution, and wanted to guarantee that if they had paid a bloody price for our freedom, they actually got what they paid for.
About forty years after those debates, Alexis de Tocqueville, in his book Democracy in America, noted
The greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults.
He also noted something that remains true today.
There are many men of principle in both parties in America, but there is no party of principle.
And that, sadly, is exactly where we still remain. We remain a nation that is able to repair our faults, but have no party structure that has the principles and will to push those changes forward.
And we do need to make a few repairs to our Constitution. There are ambiguities in the Constitution that need clarification. Look at the Second Amendment, for example. The wording of the Amendment,
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed
inadvertently creates a problem. It has been interpreted by various judiciaries as an impediment to the private ownership of firearms because they are not necessarily part of a “militia”. The Clinton administration made just such an argument before the Supreme Court.
How difficult could it be to create an amendment that read:
Replace the 2nd Amendment to this Constitution with the following: The right of the people to keep and bear Arms, shall not be infringed
No more ambiguity, no more attempting to discover the original intent behind the original language. It would mean exactly what it says with no reason to “interpret” those words.
Or take, for example, the so-called Commerce Clause, which reads:
[The Congress shall have Power] … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes …
Since early in the last century, the Commerce Clause has been twisted and distorted and mangled to provide constitutional cover for Progressives to act in what would be considered by the founders as utterly unconstitutional. These Progressives have been aided and abetted by Supreme Court justices who were picked by Liberal and Progressive Presidents to do just that.
But Alexander Hamilton, in Federalist #11 made clear that when the founders spoke of “commerce”, they were speaking of the exchange of goods. They were never speaking about the production of goods or agriculture. In Federalist #17, Hamilton distinguished between the power to regulate such national matters as commerce and “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.” (Emphasis mine).
In Federalist #35, Hamilton again approached the Commerce Clause by asking,
“Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts to which his commerce is so nearly allied?”
He clearly distinguished the production of goods and the delivery of such goods across state lines. Commerce, to Hamilton, was the exchange of goods only, not the production of those goods which occurred within the confines of one of the sovereign states, and was thus not amenable to “regulation” by the Federal government.
Clearly the Commerce Clause has been mangled almost beyond recognition. Yet it still is necessary in some form to actually regulate (not control, not direct, not mandate) inter-state and international transfers of goods. So to return to the words of de Tocqueville, America must “repair her faults”. The Constitution itself offers a path to making those repairs which has been used, on average, about every 10 years or so since our founding. Amendments are the proper means to “repair our faults”, and they should be viewed and used as such.
Many would say that getting Congress to act in a bipartisan way to initiate the amendment process is nearly impossible. I beg to differ. Twenty-six states joined to appeal to the Supreme Court to invalidate Obamacare. A scant eight more states, a total of thirty-four, is all that is necessary to call a Constitutional Convention. The mere threat of a convention would terrify both Democrats and Republicans in Congress so much that they would, in a bipartisan panic, begin the amendment process with a speed usually reserved for leaving Washington to go on vacation.
Now that would be real infrastructure improvement.