Tuesday, October 18, 2011

States Must Take the Lead to Restore Constitutional Governance

"Are you serious? Are you serious?" a ruffled Speaker Pelosi disdainfully responded to a reporter when she was asked if Obamacare's individual mandate was constitutional.

Then there was Rep. Clyburn who dismissively asserted that "there's nothing in the Constitution that says the federal government has anything to do with most of the stuff we do." Wow!

And, not to be outdone, the especially offensive assertion by Rep. Pete Stark that "the federal government can, yes, do most anything in this country."

Like any American who respects the Constitution and heard these odious statements, I was incensed and, frankly, sick to my stomach.

I thought I was beyond being shocked and dismayed by the Progressives' arrogance and vacuity. But, like all determined leftist ideologues, their alien agenda and blind ideology ALWAYS trump the Constitution and common sense.

That said, in the interest of fair-and-balanced, what happened to the GOP's 2010 "Pledge to America"? Specifically, is the Pledge's requirement that "every bill contain a citation of Constitutional authority" being consistently and properly honored? Does anyone know? More importantly, are GOPers empty-headedly basing their citations upon murky and corrosive case law vs original meaning and intent? In short, has this portion of the Pledge turned out to be yet another charade or otherwise cynical ruse perpetrated on an unwitting American public routinelly afflicted with a debilitating case of attention disorder?

What that painfully ignorant Pelosi outburst and the shameless litany of other repellent statements from Progressives in Congress underscores is this: we've strayed dangerously far afield from the original meaning and intent of the Constitution. And unless we take meaningful and determined action to restore first principles, the statists which dominate our current ruling elite in DC will surely "fundamentally transform the United States of America" and consign our constitutional republic to the dustbin of history.

We can argue whether Obama and his Progressive cohorts are merely misguided Socialists, hardcore Statists or neo-Marxists, but the acutely disturbing reality is that for many years now the Progressives have been incrementally transforming the US into an authoritarian welfare state--or much worse--meaning that both our liberties and our economic well-being are being slowly destroyed.

So, how do we more assertively and effectively reverse the years of unrestrained government overreach and restore the dynamism and strength of our constitutional republic? Can we rely upon our enlightened political class to reverse our tailspin into authoritarianism?

Though there are some solidly conservative Constitution-first representatives in DC these days, their minority status in the DC power structure remains a nearly insuperable obstacle to real reform. So, something much more compelling, more vigorous is needed to turn the tide--and soon.

Short of open rebellion or secession--which, increasingly, remain real possibilities--I am hopeful there is another less tumultuous way forward. Toward that end, and like many other concerned Americans, I've been mulling at least the general shape of a solution to this problem. So, while the actual process to achieving this goal requires some further reflection and discussion, here's what I've come up with so far. Nothing profound, but it is, I hope, the beginning of a serious discussion:

1. An Article V Constitutional Convention (convened by the States) to repeal the 17th Amendment and to devise a joint federal-state constitutional process to rein in a runaway and dangerously politicized Supreme Court. (And with the majority of State houses currently in GOP control, chances are better than even that reason and probity vs parochial political agendas and liberal excesses would motivate the majority of participants.) Of course, a determined, well-organized and widespread grassroots effort at the State level would be required to move the state leadership in this direction.

2. A serious national campaign by grassroots patriotic organizations to urge States to reassert their co-equality with the federal government by unilaterally nullifying any and all unconstitutional federal encroachments, whether those excesses are well-established by errant case law or more recently imposed. This would necessarily require States' nullifying manifestly arbitrary judicial rulings, overreaching federal laws and executive orders A - Z. (Justification: the key to quickly achieving genuine constitutional order is by fully re-establishing co-equality between the States and the federal government and to strictly limit the feds to Art 1 Sec 8 powers as originally conceived. Nullification can easily accomplish that goal.) Again, a focused and determined grassroots effort would be needed to see this to fruition.

3. A "National Commission to Restore Constitutional Order"--not the same as a fullblown Article V Convention. A pre-Convention, so to speak.

Comprised of 50 respected luminaries drawn from the business world, constitution advocacy organizations, jurists, political scientists, constitutional scholars and historians, all of whom must be demonstrably independent of government influence, and, to provide clout and further credibility, one representative from each State in the union, a "Commission to Restore Constitutional Order" should be immediately convened to transparently and comprehensively review all laws, edicts, rulings, executive orders and government structures to objectively determine which do and do not fully comport with the original meaning, intent and scope of the Constitution as clearly understood by both the Constitution's framers and ratifiers.

To achieve this level of objectivity, the Commission would be enjoined to consult ONLY the original founding documents, the Federalist and Anti-federalist papers, founders' correspondence, as well as applicable dictionaries and relevant political discourses of the day in order to accurately shape their conclusions respecting the constitutionality of the various subjects before them! Those unwilling to faithfully submit to this restrictive interpretation requirement would be excepted from participation. Of course, for the commissioners already tainted by decades of errant case law and political bias, this constraint will, no doubt, pose the greatest challenge to the efficacy of the Commission; thus, luminary appointments must be carefully vetted by the Commission's State representatives to better ensure their single-minded commitment to this narrowly defined mandate. Most importantly, the People must be solidly behind such an effort.

Moreover, since the Supreme Court, its appointment process, rules of tenure and its very rulings, will also be under intense scrutiny, the Supreme Court will have absolutely NO authority, oversight or participation in this exercise. (Notably absent from the commission's composition will be practicing attorneys-at-law whose training and predispositions are generally more directed at simply winning legal arguments than to upholding the clear meaning of the Constitution.)

Fullest public access to these proceedings must be required, and feedback from the public should be continuously elicited, reviewed, and carefully considered for incorporation into the Commission's recommendations. A complete, unexpurgated record of Commission discussions and public feedback must be fully accessible to all Americans 24/7. Public education and engagement on steroids!

The Commission, headed by a chairperson chosen by and from the Commissioners themselves, would number 100 (2 per State) and its period of public service would be limited to one year unless otherwise extended with the approval of a majority of the Commission's State representatives. Learned witnesses from all walks of life representing a full range of political and economic viewpoints would be invited to testify before the Commission.

The Commission would be tasked with prioritizing and submitting their recommendations and supporting arguments to the State legislatures within 3 months following conclusion of their proceedings. (For example, when there exists general agreement among the Commissioners that the state appointment of senators should be restored, that the income tax amendment must to revised or repealed, that the Dept of Education must be phased out or summarily shut down, that the process of vetting/removing federal judges must be amended, or that a system should be established to enable the States to overrule federal judicial rulings and to weigh in on appointments, then the States must initiate an expedited Art. V amendment process within 30 days of receipt of the Commission's recommendations.

*Should any violations of the Constitution be regarded as especially offensive, then States, either individually or in concert, would simply nullify those offending items, thus effectively and more quickly eliminating them from further consideration.

Obviously, the overriding objective of this time-limited exercise would be 1) to ensure that all existing laws, rules and regulations fully comport with the Constitution and to quickly eliminate those which are clearly unconstitutional, 2) to restore "constitutional supremacy" over "judicial supremacy, 3) to reduce the size, scope, cost and inefficiency of the federal government, 4) to restore a clearly defined separation of powers within the federal government in keeping with original design, and 5) to restore co-equality of the States with the federal government.

Since not all can be remedied through nullification alone, some recommendations may require constitutional amendments. Thus, an Article V Constitutional Convention might well be unavoidable. Obviously, if improperly monitored and poorly led, an Art. V Convention runs the risk of corrupting ideological excesses. But, so long as the majority of States are NOT in Progressive hands, a healthy outcome may be reasonably expected. And though many progressive-dominated states may threaten to obstruct the Art V process by withholding their participation, the specter of the Commission's acting without their input might well incentivize their participation. But with or without those delegates, the Commission's work must proceed unencumbered and with all deliberate speed.

Too aggressive? Too far-reaching? Do-able? Overwhelming? Too onerous? Too bureaucratic? Fraught with peril? Or, in the minds of We the People and its representatives in DC and the various State capitals, is the Constitution already an irrelevant relic unworthy of our attention?

Obviously, this is but a rough outline, I know, and much massaging and clarifying are needed. But, I think we can all agree that we really do need to get deadly serious about drastically changing course and taking credible steps to restore first principles.

In any event, I am absolutely convinced that something serious must be done soon to get us back on track. To continue wringing our hands and fearfully sitting on our hands hoping for the best is not an answer. It's a recipe for failure and self-destruction.

Finally, this: if a peaceful return to constitutional order proves to be but an unachievable pipe dream, then all bets are off and less attractive and more...assertive and unsettling...alternative remedies may well be unpreventable. If the current union proves to be unwilling to commit itself to first principles, then it is a certainty that the union's dissolution is inescapable. And, in the final analysis, perhaps the union's break-up might well be in the interest of those Americans and States who are genuinely committed to restoring and defending first principles, leaving the remaining Progressive "living constitution" adherents to stew in their self-made political oblivion.

To my way of thinking, there is absolutely nothing redeeming about "unity at any price". Absent the lofty and congealing foundations of liberty and republicanism, a union by itself is but a habitat for fools and slaves. Time is running out.

"Where [the Constitution] thrives, everything thrives." Dr. Larry Arnn, President, Hillsdale College, 2011.

"The Constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other enlarged, that should be adopted which is most consonant with the apparent objects and intent of the Constitution." Joseph Story, Commentaries on the Constitution, 1833.