Tag Archives: states rights

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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Healthcare Bill Derailed?

liberty-bellThere is a good chance the healthcare bill being debated in Washington will be blocked, thanks to opposition by the electorate.  However, in the end Obama will win because the debate has been shaped in a fashion the American people cannot win.  The odds are that eventual healthcare reform will not contain most of the features in the current bill, but the momentum is there for some type of reform detrimental to the welfare of the nation.

Everyone seems to have accepted the underlying premise of the debate that fixing healthcare is the duty of the federal government.  No one is pointing out that the problems with healthcare, like most of the problems with the economy in general, can be laid at the feet of Congress.  More than anything else, the unaffordable cost of healthcare today is caused by the distortions in the market created by the fact that government is the single largest purchaser of healthcare.
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If we are to make any headway in getting the cost of healthcare under control, we have to begin with a debate as to whether or not healthcare is a proper function of the federal government.  The Founders, taking into account the expanse and diversity of America, deliberately limited the functions of the federal government.  They understood that attempting to govern citizens in a variety of states covering a large geographical area with differing customs, problems and needs could not be accomplished by a central government without major sacrifice of liberty.

Nowhere in the Constitution do we find any authorization for the Federal Government to be involved in healthcare.  Neither do we find any indication in the writings of the Founding Fathers that they would be in favor of government involvement in healthcare if they were alive today.

That is not to say that government has no role in the health of its citizens, just not at the federal level.  A good first step in solving America’s healthcare problems would be accepting the intentions of the Founders when they proposed and ratified the tenth amendment.  The proper place for public health issues, including medical care for the indigent and the regulation of insurance, if necessary, is at the state and local level.

If we continue to accept the premise of the statists that healthcare is the proper role of the Federal Government it is only a matter of time until we have socialized medicine.  Obama and the Democratic Party may not be successful in getting a nationalized health plan this time, but they will be back again.  Each time they propose it they get another step closer to succeeding.

Control of the nation’s healthcare has been the goal of left leaning politicians since the administration of the Progressive-Republican President, Theodore Roosevelt.  Franklin Roosevelt, Truman, Johnson and Clinton, each in turn, made an attempt to institute universal coverage.  Johnson signed into law the Medicare and Medicaid programs which eventually led to government control of some forty percent of the nation’s healthcare.

The increased demand for healthcare services brought about by these programs led to an inevitable increase in price.  That, added to the customary employer provided healthcare plans instituted a couple of decades earlier as a way of getting around wage controls and exorbitant taxation, helped to create an expectation on the part of the public that they should never have to pay for any health care “out of pocket”; someone else should always pick up the bill.

We may accept a bill for hundreds of dollars from our local mechanic for minor repairs on our car without complaint, but panic at the thought of paying for a routine trip to the doctor for treatment of a common cold.  Until the expectations of the public changes in this regard and until we get the overall government involvement in the healthcare system out of the hands of Washington and back into the hands of the state and local governments where it belongs, we are going to continue to deal with repeated efforts to socialize medicine.

If we do not change the way we think about the question of healthcare, Obama wins.

Alaska Fights Back on State Sovereignty

liberty-bellFollowing is the text of a resolution passed by both Houses of the Alaska Legislature and signed by Governor Sarah Palin on July 10, 2009.  Similar resolutions have been passed by the legislatures of six other states so far.

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF ALASKA:

WHEREAS the Tenth Amendment to the Constitution of the United States reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; and

WHEREAS the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS some federal actions weaken states’ rights protected by the Tenth Amendment to the Constitution of the United States; and

WHEREAS the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp; and

WHEREAS art. IV, sec. 4, Constitution of the United States, reads, “The United States shall guarantee to every State in this Union a Republican Form of Government,” and the Ninth Amendment to the Constitution of the United States reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and

WHEREAS the United States Supreme Court has ruled in New York v. United States, 112 S.Ct. 2408 (1992), that the United States Congress may not simply commandeer the legislative and regulatory processes of the states; and

WHEREAS all states, including Alaska, find themselves regularly facing proposals from the United States Congress that weaken states’ rights protected by the Tenth Amendment;

BE IT RESOLVED that the Alaska State Legislature hereby claims sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States; and be it

FURTHER RESOLVED that this resolution serves as Notice and Demand to the federal government to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

COPIES of this resolution shall be sent to the Honorable Barack Obama, President of the United States; the Honorable Joseph R. Biden, Jr., Vice-President of the United States and President of the U.S. Senate; the Honorable Nancy Pelosi, Speaker of the U.S. House of Representatives; the Honorable Lisa Murkowski and the Honorable Mark Begich, U.S. Senators, and the Honorable Don Young, U.S. Representative, members of the Alaska delegation in Congress; all other members of the 111th United States Congress; the presiding officers of the legislatures of each of the other 49 states; and the governors of each of the other 49 states.

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For a synopsis of the powers delegated by the Constitution to Congress and the Federal government see “The Limited Powers of Congress”.