The liberal elites’ greatest friends in Washington, D.C., are professing conservatives who attack the Founding Fathers’ solution to a tyrannical federal government. These conservative critics may think they are attacking Mark Levin or other advocates of using Article V, but they’re really attacking George Mason and the other champions of freedom who insisted that the Constitution contain a method for the states to truly stop the federal government’s inevitable power grabs.

Let’s look at their arguments and see them for what they really are.

Naysayer Argument #1

The current government does not uphold the current constitution, why would they suddenly grow a conscience with another amendment?”

This question is more rhetorical.  It’s a question that actually asks us to abandon the Constitution altogether. After all, the naysayers contend, the Constitution is being disobeyed, so there’s no way to make them obey it.

Of course, critics cannot have it both ways. They cannot claim to be constitutional conservatives, and yet say it is impossible to achieve constitutional government.

Washington D.C. uses the Constitution but has abused power it has actually been granted. It claims to be in adherence to the Constitution, but they’ve gone far beyond their enumerated powers.

The Commerce Clause and the General Welfare Clause

The Commerce Clause and the General Welfare Clause account for the vast majority of constitutional encroachments by the federal government.  Consider the wording of the current clauses and possible clarifying amendments that would seek to stop these abuses.

Commerce Clause

The current Commerce Clause says that Congress may legislate: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

They have twisted this to mean that Congress can regulate anything that has a significant impact on our national economy. While such an interpretation is clearly not what the Framers intended, it is easy to see that reasonable people could read that expansive meaning into this phrasing.

A proposed fix to this problem that I have drafted would read like this: “The power of Congress under the Interstate Commerce Clause is restricted to the regulation of shipping and transportation across state lines. Congress has no authority to regulate any matter on the basis that it affects interstate commerce.”

Congress currently regulates everything economic in our country under the Commerce Clause. When the ambiguous term “commerce” is switched to “shipping and transportation” the power of Congress is dramatically curtailed.

Neither Congress nor the Supreme Court could pretend to be in compliance with the Constitution if they tried to regulate minimum wages for babysitters under my proposed language.

There is a huge difference politically and legally between pretending to be in compliance with the Constitution and being in open defiance.

The General Welfare Clause

The same thing is true of the General Welfare Clause. It currently reads:

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

Congress and the Supreme Court contend this language gives Congress an independent power to tax and spend for anything they believe is for the general welfare of the country. It takes several pages of historical analysis to show how wrong they are by this assertion, but – again – the language itself is broad enough to allow Washington D.C. to pretend its current approach is authorized by the Constitution.

My proposed solution reads as follows:

“Congress shall have no jurisdiction to expend funds for any purpose that is not in direct furtherance of one of its enumerated powers. The General Welfare Clause is not such a grant of power but an additional limitation on all spending by Congress to prohibit favoritism in spending. The General Welfare Clause shall not be construed to grant power to tax or spend money for any purpose that is also within the jurisdictional competence of the states.”

Obamacare was justified under the General Welfare Clause. There is no way John Roberts could have ruled for Obamacare if my language was in place. In fact, even Elena Kagan could not rule for Obamacare if my version of the General Welfare Clause was in place.

Ambiguity helps continue the pretense that Washington D.C. is in compliance with the Constitution.

Still not clear enough?

Naysayers could contend, however, that even my clear language could be misconstrued by the Supreme Court. While I don’t think so, there is a way to be sure that the Supreme Court’s multiple abuses come to an end.

Here is my idea:

The Supreme Court shall consist of fifty justices. Each state shall, in a manner of its own choosing, appoint one justice to the Court. Each justice shall serve one term of five years and shall be permanently ineligible for reappointment.

There would need to be some specific language to provide for the idea that ten states would appoint their justices each year in the five-year cycle so that there would be proper continuity and to provide a date certain when the current justices are required to vacate their offices.

The biggest problem with a lack of constitutional compliance in Washington DC is found in the Supreme Court. If Washington DC loses control of the appointment of the Supreme Court, that institution will stop the relentless expansion of the federal power.

Mark Levin has an alternative method of curbing the abuse by the Supreme Court. A convention might adopt his version or mine or a third choice. What is important to know is that the Convention of States has the clear capacity to ensure that proper checks and balances are placed on the federal judiciary. The Constitution can clearly prevail more often when the power of the judiciary is properly balanced.

So let’s make a deal. Let’s stop paying attention to pessimistic bloggers with no particular track records, and instead listen people with clear records of fidelity to the Constitution and a record of successful advocacy.  Mark Levin and I stand together to endorse the solution given to us by the Founders, who believed a proper structure is essential to liberty.

We can achieve that structure.

We can stop the runaway power of Washington D.C. if we’re willing to use the Constitution’s own solution. The alternative posited by naysayers is to give up on the Constitution.

To that, I say, “Nay, nay.”

Michael Farris is a constitutional lawyer and activist who (among many other things) spearheaded the defeat of a UN treaty in the US Senate in December 2012.

 

About The Author

Mark was a co-founder of the Tea Party Patriots, and served as the national coordinator. He left the organization to work more broadly on expanding the self-governance movement beyond the partisan divide. Mark appears regularly on television in outlets as diverse as MSNBC, ABC, NBC, Fox News, CNN, Bloomberg, Fox Business and the BBC. He’s highly sought after for the tea party perspective from print and electronic media outlets, from the Wall Street Journal, New York Times, L.A. Times, Washington Examiner, Politico and the The Hill. Mark blogs at MarkMeckler.com, and his opinion editorials regularly run in many of the leading political newspapers both on and offline. Mark has a BA in English from San Diego State University and graduated with honors from University of the Pacific, McGeorge School of Law in 1988. He practiced real estate and business law for almost a decade. For the last eleven years of his legal career he specialized in Internet advertising law. When not fighting for the future of our nation, Mark is an avid horseman, and lives in rural northern California with his wife Patty and two children.

10 Responses

  1. Dr. Donald Barnes, Sr.

    Where do we start? ….members of the state legislature getting on board?

    Reply
  2. Connie Stamolis

    I support Mark Levin and colleagues. We must stop this Federal government overreach. The States convention, to add amendments to the Constitution, will appeal to most people. Otherwise, this great country is lost!

    Reply
  3. Elizabeth Clark

    I say to check all the ammendments of the constitution put in place un-beknown to the people and have a vote on each and every one, I prefer to go back to the original constitution with no ammendments and also require each and ever person elected to office to pass a test on our constitution, before they can even begin to be elected.

    Reply
  4. Chris Berrian

    Lets keep rollin and maybe we can stem off all this out of control government.

    Reply
  5. Connie McKinnon

    I agree that there needs to be some control regarding the Supreme Court. They have made several “wrong” decisions. I understand why they are appointed for life but instead of curbing them it is giving them the opportunity to put their spin on the constitution. Maybe the authority for the states to impeach them?

    Reply
  6. Amy Chattin

    I believe this may be our last chance to save America. The federal government is so big and overreaching and the corruption in D.C. is so bad that it will take a true grassroots movement to restore this great country to its original glory. This movement IS the way to do it. If we all band together and work very hard, it CAN be done. It will take a lot of hard work and dedication but we’re Americans – and Americans can do amazing things. I hope we can get enough momentum to turn this train around before it crashes and burns!

    Reply
  7. Paul

    This sounds like a great ideal. You can count on me and everybody I talk to to help. Just let me know what to do.
    7th Ge. Texan Paul Kendrick

    Reply
  8. Dennis White

    I concur with the commerce clause amendment proposed, as it does plainly spell out the limits of federal authority and would effectively make unconstitutional all laws passed that overstep this new clause, specifically Obamacare.

    As for the Supreme Court proposed amendment, I will need to study this more as it feels like a more dramatic shift away from what the Framers had in mind concerning this body. I believe that the Framers wanted the appointed members of this body to serve for life in order to be unbound from the politics associated with the party that put them in place. As we have seen this hasn’t worked out quite as planned, but establishing a five year term even in a body consisting of 50 members, I feel they could still be swayed by politics.

    Some other process needs to be explored and I believe that other proposed amendments will play a part in the overall change of the Supreme Court, namely Term Limits for Congress. This concept eliminates the “Career Politician” and opens the door for people who truly want to serve their country and not just seek the power of the office. With better people in Congress, better Supreme Court Justices would be confirmed.

    I would like to see however, if there are any ideas floating around to curb the practice of the Supreme Court to “legislate from the bench”. Is there a way to force them to apply the principles of the Constitution as the Framers meant them to be applied through this amendment process?

    A liberal interpretation of the Constitution as it applies to specific circumstances is not bad. I believe that there is a need for both liberal and conservative views on each issue that comes before the court. Where the concern lies for me, is when the liberal interpretation becomes part of a progressive agenda to change the document rather than interpret it.

    Thanks for providing the opportunity to offer our opinions.

    Reply

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