If It Ain't Broke, Don't Fix It

liberty-bellOne of the easiest ways for a Senator or Congressman to gain attention is to propose an amendment to the Constitution; If it pertains to a subject of interest to the public, all the better.  Call a press conference, have your staff compose a press release and, for at least one news cycle, your name is before the public.  Rarely does anything come of these publicity stunts and they are soon forgotten.  There are up to 200 constitutional amendments proposed in a typical session of Congress.  The average person seldom hears of these proposals unless they are on the Lawmaker’s mailing list or visiting his or her website.

Such antics on the part of our lawmakers have not been a serious problem constitutionally.  Of the more than one thousand amendments introduced in Congress over the past two centuries only 33 have garnered enough supports in both houses of Congress to be presented to the states for ratification.  Of those only 27 have been ratified including the ten making up the Bill of Rights.

Members of Congress can score political points with their constituents by proposing amendments, especially if the amendment involves a fashionable issue.  The same opportunity for proposing constitutional amendments, however, is not extended to the state lawmakers by the Constitution.  They typically solve this problem by calling for an amendatory convention.

Amendments to the Constitution must originate in Congress, or from a convention called by Congress for the purpose of proposing amendments, when requested to do so by the Legislatures of two thirds of the states.

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several states, shall call a Convention for proposing Amendments…”
~Article V, U.S. Constitution

Article V was one of the last Articles to be debated by the Philadelphia Convention.  After more than four months of exhaustive debate in a closed room with little reprieve from the heat and humidity of a Philadelphia summer, little time was given to its consideration.  In fact, more time was devoted to the phrase “we the people” during the Virginia Ratifying Convention than was devoted to the Article for Amending the Constitution during the Constitutional Convention.

The absence of specific requirements in the states’ applications has led to some degree of controversy in recent years.  One group called, “Friends of The Article V Convention” (FOAVC) has filed two lawsuits against the government claiming that the People have been denied their constitutional right to an Article V Convention by Congress; one making its way to the Supreme Court.  Their claim is based on the fact that Article V does not specify a time frame for the states’ applications.

They claim that since the Constitution was ratified in 1788 more than 750 Article V applications have been made by all 50 states and Congress continues to ignore their constitutional duty to call for a convention to consider amendments.  FOAVC rejects court rulings that in order for applications to trigger the Article V requirement for a convention they must be contemporary, and that the question is a political one over which the courts do not have jurisdiction.

The group fails to make a case for the need for a convention and does not indicate a reason for their insistence on one except for the fact that Article V provides for it.  While they do not clearly disclose their agenda, an article by one of FOAVC’s founders, Joel S. Hirschhorn dated May 8, 2008 contains the following;

“Hillary Clinton and Barack Obama say they believe in giving Americans universal health care.  I don’t believe them.  Anyone who takes the time to understand universal health care should conclude that only a simple single payer system will reform the current outrageous system that benefits the insurance and pharmaceutical industries.

The contorted plans from Clinton and Obama are not sufficient reforms.  And what John McCain has proposed is sheer nonsense and by itself should cause any conscious American to avoid voting for him….”

“…We must expand the Bill of Rights as embodied in the US Constitution to include the right to affordable universal health care.  The time has come for the public to conclude that the right to universal health care is as important and necessary as the right to free speech and all the other beloved constitutional rights.  Common sense says that health care is a right, not a privilege…”

This language certainly does not indicate someone who is devoted to the defense of the Constitution.

At any rate, whether or not the Constitution provides for an amendatory convention—as it certainly does—the real question should be; Is such a convention needed? And is it advisable? An Article V convention has never been convened in our history and there are several good reasons why one should not be.

The danger of altering the plan of government

While delegates to an Amendatory Convention would not be authorized to rewrite the entire Constitution, there would be no limits to the number and scope of the amendments proposed.

Thus far Article I, Sections two, three, four and nine, Article II, Section one, Article III, Section two, and Article IV, section two have all been changed by Amendment.  Most of these amendments have produced unintended consequences; Abortion, a progressive income tax, and the loss of state sovereignty for example.

The futility of Constitutional Amendments

Our government has not been a true Constitutional Republic since the reign of Franklin D. Roosevelt.  Presidents, Legislators and Courts seem to acknowledge the Constitution only when it furthers their agenda, otherwise it is ignored.  There is no indication that additional amendments would be honored by government officials to any greater degree than they honor the Constitution now.  Before we open up the Amendment process by calling for an Amendatory Convention we need to regain control of the government as a whole and bring it back under the jurisdiction of the Constitution as it is.

Lack of need for a convention

Whenever a public outcry for a new Amendment to the Constitution arises it is usually due to persistent breaches of the Oath of Office by elected officials or a departure from the fundamental principles set forth in the Declaration of Independence.  Of the seventeen Amendments ratified since the Bill of Rights only the twelfth and twenty first were necessary; the latter to correct the ill-advised eighteenth. Most of the problems intended to be corrected by the remaining fifteen could have been corrected legislatively without violating the Constitution as it was.

The sixteenth and seventeenth Amendments have proven to be damaging to our form of government, the eighteenth violated a fundamental natural right and most of the others came with unintended consequences that have proven detrimental to the general welfare.  In addition they have provided fertile ground for activist judges to substitute their social preferences for Constitutional law.

While the Constitution is not perfect, two hundred years of history indicates that it is as near to perfection as a basis of government as mankind is capable of devising.  All of us should become a little nervous when our political leaders seriously talk of changing it.  “If it ain’t broke, don’t fix it.”

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4 responses to “If It Ain't Broke, Don't Fix It

  1. Jerry McDaniel…

    If you’re so wise how do you propose this be done?

    ”…WE NEED TO REGAIN CONTROL OF THE GOVERNMENT AS A WHOLE AND BRING IT BACK UNDER THE JURISDICTION OF THE CONSTITUTION AS IT IS.”

    The futility of Constitutional Amendments

    Our government has not been a true Constitutional Republic since the reign of Franklin D. Roosevelt. Presidents, Legislators and Courts seem to acknowledge the Constitution only when it furthers their agenda, otherwise it is ignored. There is no indication that additional amendments would be honored by government officials to any greater degree than they honor the Constitution now. Before we open up the Amendment process by calling for an Amendatory Convention we need to regain control of the government as a whole and bring it back under the jurisdiction of the Constitution as it is.

    The whole point of getting Congress to call a convention is because it is their obligation to obey the very document — they do not have the right to pick and choose which parts, they must obey all parts. Article V says they WILL and that’s it — end of discussion.

    • Gordie,

      Do I detect a note of sarcasm in your first comment? Sorry, you will have to wait for my next post to learn what I propose to regain control of the government.

      As to calling a new convention under Article V. I think you may be misreading the Article.

      The text of Article V says,

      “Congress…on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,…”

      The structure of this clause compels Congress to treat the collective applications of two thirds of the states as a single application triggering the call for a Convention. For this to occur the applications would have to be contemporaneous and similar in content. This supports my view and the view of the two courts that heard the lawsuits of FOAVC.

      FOAVC reads Article V as,

      “Congress…on the applications of the Legislature of two thirds of the several States, shall call a Convention for proposing Amendments,…”

      This reading supports the contention of the FOAVC that it does not require Congress to treat the applications as one, and therefore they do not need to be contemporary or similar in content. Under this reading whenever the number of applications, regardless of time intervals between and regardless of the content, whether proposing a convention call or a variety of dissimilar Amendments, reaches a number equaling two thirds of the states, a Convention must be called.

      In the Brief FOAVC filed with the Supreme Court, the claim was made that the required number of applications was reached with Maine’s application in 1911. (They omitted one made by New York in 1789) This constitutes a time lapse of 122 years (six generations) between the first application by Virginia in 1789 and Maine in 1911.

      It is inconceivable to me that, considering their positions on amendments and conventions, the Founders would have deliberately crafted an open ended Article that would provide for the calling of another convention with the potential to change our whole system of government, based on cumulative applications by the states in perpetuity without regard to purpose or the passage of time.

  2. Great work Jerry. Toby

  3. Letting the state governments have a role in health-care legislation risks capture or veto by the industry, yet consolidation at the US level is inconsistent with a Union that stretches over a continent. There is a way out of this dilemma. See http://euandus3.wordpress.com/2009/12/29/the-health-care-industry-dominating-the-states-federalism-as-capture/