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, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
While the method is clearly onerous, there is a way to make appropriate changes to the document to address problems arising from modernization of society.
That is not just a method to change, but there is a common law concept here that plays a larger role in deciding how we interpret the entirety of the document. The very fact that the Constitution itself sets out a method with which to make changes means that any other means of making changes is barred. So people who say some precedent was made in the 1800’s (it doesn’t matter which one as long if it goes against “original intent”) are wrong.
So what are the unconstitutional methods of changing the Constitution?
The three branches of the Federal Government each use different methods of making illegal amendments.
The Executive Branch of the Federal Government has two ways in which it breaks the law, first is the “signing statement.” In this amendment the President signs a constitutional bill duly passed by both houses of Congress, and simply makes a statement as to how he plans on interpreting it to mean something completely different. This method has a long history of precedents, let me stress that even if the President’s plans would otherwise be in full compliance with the Constitution, it flies in the face of the Supremacy Clause for the President not to enforce legal statutes in the exact vein that they are passed (so long as they are legal). Another way the President violates the Constitution is though his cabinet. When the multitudes of cabinets make laws in the form of regulations, this is in violation of the separation of powers (Congress makes all laws).
Again it does not matter if the laws are otherwise in compliance with the Constitution or not, the very fact that the Executive Branch is legislating is the violation (amendment). While I am sure there are many other ways the Executive Branch changes the Constitution, this is a good example of what I am talking about.
The legislative bodies change the Constitution whenever they pass laws which are direct contraventions of the Constitution. Alarmingly, I recently heard some federal legislators mention that you cannot make a constitutional argument in Congress anymore. That is to say when a bill is debated, there is no longer any consideration or mention of the legality or constitutionality of the bill. They also change the Constitution when they delegate their constitutionally mandated roles outside the legislative branch (think coining money and declaring war).
The Judicial branch may be the most profligate abuser of the Constitution in that the concept of “Judicial review” established with Marbury Vs Madison is unconstitutional. Remember, changing the way the Constitution is interpreted from original intent is an amendment (and requires an action under Article V of the Constitution). Let me justify that for a minute. Any contract such as the Constitution is binding on all parties involved. No reasonable legislative body (such as the ratification councils of the states prior to the ratification) would sign a contract (especially one of such import) in which the meaning of words could change significantly over time- thus, textual-ism and legal precedent are both illegal means of interpretation of the Constitution, and for actions justified under such regimes to be legal, amendments would have to be passed for each “change.”
To make original intent easier to find, there were a series of articles published during the ratification debate called the “Federalist Papers,” and another series called the “Anti-Federalist Papers.” This is the discussion that took place prior to the ratification of the Constitution. Within these letters are the exact intentions of the founders, and thus the only legal interpretations of the Constitution. All interpretations to the contrary are unbinding (unless accompanied by a legal amendment). Thus all of the times that the Supreme Court used any method other than original intent to make their decision (and they have used foreign law as well as legal precedent, as well as changes in the language to do so) their rulings are by the Constitution unbinding because they represent a change to the Constitution without an amendment.
So Who Is Supposed To Stop Them
There are a couple of ways in a federalist system to stop the three branches of the government from changing the Constitution. The most effective is nullification. With this method, the state governments simply pass a law that states the federal law in question is unconstitutional, and makes its enforcement within the state limits a crime. This method usually entails fines and prison sentences for any state or federal official attempting to enforce the offending statute (normally enforced by the county sheriffs). The state must stand firm, as the Supreme Court will undoubtedly rule against them. But as Madison said- The Federal Government was not made the final arbiter of their own power, as that would make their judgment, and not the constitution, the law of the land. There is a common-law concept which states; In a contest between two laws that are equal, the one passed most recently takes priority.
Thus, the Tenth Amendment takes priority in these cases the powers not enumerated to the federal government, nor prohibited to the states, are reserved to the states and the people. This puts the law on the side of the state government in most cases.
Another way is jury nullification. In this way, during trial, a jury will determine that a person is innocent even though he may have violated the law in question, because the law is wrong. This method has a long history dating back to pre-revolutionary days.
Probably the least effective way of addressing federal overreach is “voting the bums out.” Sadly, even if you sent Jesus Christ himself to Congress he would be corrupt and rotten within six years. It flies in the face of human nature to ask a body of people to limit their own power. Each one of them believes they will use the power to do what is right, and thus fails to see that such power does not belong in one place. Or worse- simply wants the power, as the majority do, to elicit bribes from the wealthy by selling the liberties of the masses.
Two-hundred + years ago, the states purchased a Bulldog (the Federal Government) to protect them from their neighbors and help smooth out the interactions between their neighbors and each other. Somewhere around 140 years ago, this Bulldog got off its leash. It looked for a time as though no harm was done, but now it is clear to everyone that this was not so. The Bulldog goes around the neighborhood picking fights, and it has bitten our children over and over. It is time to reattach the chain to the collar and stop the disregard that the Federal Government shows to the law.
Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.
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