Just Enforce the Constitution We Have (?)

Article V Blog ^

[Jacquerie]

A contingent among those who oppose an Article V state convention to propose Constitutional amendments declare that all that need be done is just enforce the Constitution we have.

Well, we actually have more than one Constitution to consider.

There is the written, de jure Constitution that anyone can view through a simple internet search at any time. Its Preamble sets forth, in more particular terms, the broad purpose of having a government in the first place as expressed in our Declaration of Independence. Society came together to improve upon the Articles of Confederation, establish Justice, keep domestic peace, defend the nation from foreign threats, promote the well-being of society, and secure the God-given blessings of a government whose foundation is Natural Law and the consent of the governed.

All that followed, all the particulars in the rest of the Constitution, served the purposes set forth in the preamble. Means followed ends. The structure of government remains today as it did in 1789. There is a congress, president and supreme court. Elections are held every two years.

However, an hour or so in study of this wonderful document will bring the reader to a few troubling conclusions. Within the surviving structural form of our government, little else remains. The government described in the written Constitution bears little practical resemblance to the one the reader sees and experiences. In the background of the de jure Constitution works another Constitution.

The reader will conclude that our Constitution has been amended. The changes are just not in the form of tangible, written alterations. Upon a little more reflection, he might realize that the source of these unwritten amendments emerged from the institution created by Article III rather than Article V of the Constitution.

This de facto Constitution, the one actually in effect, operates without regard to the purposes of government set forth in the preamble. The most prominent feature of this living and breathing Constitution is the widespread reassignment of Article I and Article V powers. In the place of statutes, unaccountable executive branch administrators issue regulations. Instead of working through the laborious and time consuming features of Article V, scotus opinions amend the Constitution. So, over the course of the past century, statutory and supreme lawmaking powers of Article I and Article V have been hijacked and placed within the institutions of Articles II & III.

It is why enforcement of the de jure Constitution via the democratic process is impossible; practical statutory and supreme lawmaking are isolated from the influence of elections.

Since there is no end to social justice, continuing scotus’ raids on the supreme law and society are a certainty. Ditto for executive branch agencies that can issue regulations without congressional approval.

In order to correct these outrages, it is time to appeal to higher law. Perched above statutes and constitutions are the Laws of Nature and Nature’s God. While scotus has assumed sovereign powers to amend the supreme law of the land, We The People will always have the unalienable and God-given right to frame our government as we see fit.

Our options are either a peaceful state amendments convention or slavery.

Freedom or slavery, it is our choice. My selection is the state derived amendments convention alternative within Article V.

[Robert DeLong]

That’s all true, but if they can ignore the Constitution we already have what stops them from ignoring new amendments to that Constitution just like they currently do?

[Jacquerie]

The only worthwhile sort of amendments are structural, meaning those that cannot be ignored or lawyered away.

First and foremost is repeal the 17th Amendment. From there, Mark Levin's Liberty Amendments should be considered, for they would super-federalize the government and prevent executive branch lawmaking.

Second, begin repeal, or rather overturn dozens of supreme court decisions by constitutional amendment. Fag marriage for starters.

The effect would revolutionize government. Scotus would be put on notice that a higher earthly power exists to judge them. Social justice by scotus decree would come to a screeching halt.

[Robert DeLong]

First and foremost is repeal the 17th Amendment.

We can already do that via Congress, just like they did prohibition. Trump would ask Congress to start the process to repeal the amendment.

Second, begin repeal, or rather overturn dozens of supreme court decisions by constitutional amendment.

So someone takes the amendment(s) to the court system and says we think this/these amendment(s) is/are unconstitutional. It winds itself all the way up to the Supreme Court and they rule it unconstitutional. The amendment is then tossed before it is ever enacted.

You see therein lies the problem, the Constitution gives the Supreme Court the power to interpret the Constitutionality of a law. It can't make or enforce laws, but only rule on them. That's why when we allowed abortion to become law, or gave same sex marriages constitutional protection, it now falls on the court system to reverse itself, and constitutionally that becomes hard, due to precedence. It's a kind of catch-22 legally. It can be done but the makeup of the court is everything, and it may even require judicial activism. I myself think the argument should be that the Supreme Court in affect made law, which is itself unconstitutional. They in fact only ruled on the law that banned all abortions. Which means they cannot make it law that all abortions are legal upon demand at anytime during the pregnancy.

But again these can all be done by Congress. A Constitutional Convention is not necessary. What is necessary is for there to be a overwhelming hue and cry from the populace to motivate Congress to start the process. If they then fail to do so, then a Constitutional Convention may indeed be in order as a recourse of last resort. Realize though that one has never met the requirements needed to compel Congress to call one. Which means they are very hard to get enough momentum to actually go that route.

[veracious]

I”m all in on US Constitution. When do we throw DC and every _law_ in opposition to it, out?

[Doug Loss]

First, the supreme court can't rule a properly-ratified amendment unconstitutional. If you think that, nothing else you say is worth considering. Second, yes Congress could repeal the 17th amendment. But it won't; the feral federal government will never agree to reduce its power. The only way to get something like this done is via an Article V convention, bypassing Congress entirely.

As for "one has never met the requirements needed to compel Congress to call" an Article V convention, there have been over 400 state resolutions calling for such a convention. Since these resolutions haven't been identically worded Congress has pretended that they didn't meet the constitutional requirements, but the Constitution nowhere says that such resolutions must be identical to be valid. For that reason the Convention of States movement is working to get states to pass identical resolutions. So far, six states have done so, and the resolution is being considered by a fair number more.

[DNME]

Would we be flirting with disaster if we reverted back to the de jure Constitution? As in, erase all federal laws, agencies, departments, treaties and SCOTUS "precedent" rulings and start over again with the black-ink document itself? (Existing Amendments would stay, at least for now.)

I think such a "Reset" could save the nation.

Many of our current problems arose when Congress discovered it could take the lazy way out. Instead of making laws, Congress started making agencies. Those agencies began cranking out regulations subject to (rare) Congressional overrides and here we now sit, buried in red tape as our freedoms evaporate and our anger grows.

Just because Congress can muster a majority vote does NOT mean that all laws proposed are Constitutional. Far from it.

Article I Section 8 sets forth the VERY FEW powers actually delegated to the central government. Only those laws that comply exactly with the Constitution are legitimately allowed under the "Necessary and Proper" Clause but the feds claim they are ALL fully Constitutional and therefore the Supreme Law of the Land, so the States must shut up and obey. (We will leave the "State nullification" argument for another time.)

I believe that if we reverted to the de jure Constitution, we would indeed survive. Each State has its own environmental regulations, welfare assistance laws, criminal statutes, etc., so we would hardly become a "lawless" society while our State delegations sort out the federal mess. The military would be kept intact, of course.

Throwing out the federal law book and muzzling SCOTUS would create an enormous screaming noise out of Washington, DC, but I think we need to hear that sound. The system is too clogged and congested to fix anymore, so maybe we need to hit the Constitutional Reset button instead.

[i_robot73]

IMO, the ‘reset’ is exactly what’s needed. Then lay down the few ‘extras’ needed.

>Instead of making laws, Congress started making agencies.

Again, govt decided NOT to follow the Constitution (ONLY the legislative can make law, there is no option to delegate), and the rest just ‘went along’.

>Throwing out the federal law book and muzzling SCOTUS would create an enormous screaming noise out of Washington, DC, but I think we need to hear that sound.

IMO, the sound we need to be hearing more often is, ‘Urghk’, as the trapdoor falls and the rope pulls tight.

We the People haven’t replenished the Tree of Liberty for FAR too long now for govt to see whom the power resides.

[Robert DeLong]

They could challenge the procedural validity of the Amendment, especially one created via a Constitutional Convention. Which is what I was referring to. It may be a stretch but it is possible and if the Supreme Court took it up and ruled it unconstitutional then what recourse is there. Given the state of the Supreme Court, I would not put it past them either.

[Doug Loss]

The recourse is to have the states say, “the Supreme Court has no jurisdiction in this matter, so its opinion isn’t binding.” And then to convene the convention whether or not Congress agrees.

[Jacquerie]

Gosh, but I wish you had read my post before responding to the title.

[Jacquerie]

<>When do we throw DC and every _law_ in opposition to it, out?<>

When enough people are convinced that elections have become something akin to courtesies rather than the selection of fellow citizens entrusted to make our laws.

If the existing trend continues, it won't be long before the sole purpose of congress is to fund and consent to whatever the executive and judiciary wish to do.

[DNME]

Jacquerie, I did indeed read your thoughtful and interesting post, more than once in fact, but I respectfully disagree that we cannot reset to the de jure option.

I enjoyed your observation about the written and unwritten Constitution(s). We really are living with just a thin framework of our founding document. My proposal is to scrape away ALL the rot and corruption that makes up the unwritten Constitution, leaving only the rock solid framework. We can replace what laws and regulations that are "Necessary and Proper" after the dust settles.

I fully support an Article V Amendment Convention but I'm now having doubts that this will be enough, unless a new Convention is held every month. I can think of dozens of Amendment proposals off the top of my head, from repeal of the 17th to imposing term limits to a balanced-budget provision to clarifying the "anchor baby" clause of the 14th.

Drastic times are coming and everybody knows it. I swore an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic" and that oath had no expiration date. But I will support the written Constitution much more happily if the unwritten one is burned away.

No disrespect meant to you, FRiend, just an honest disagreement.

[Jacquerie]

Okay. My mistake. I apologize.

Still, the practical law that we live under is what one man, the prez says it is. Five lawyers will continue to amend the constitution as well as attempt to amend Natural Law as their social justice whims dictate.

Anyway, as for a regular convention, I posted some thoughts here.

[Robert DeLong]

Ok

[Jacquerie]

Oops. I meant recurring convention.

[Nuc 1.1]

Very well said.

[litehaus]

Any way to retroactively prosecute a generation or two of “535 Princes of the Universe” (All past and present congresscritters) for knowingly putting our grandchildren in bankruptcy ???

And stripping them all of their pension benefits?

[Nuc 1.1]

I must disagree as Article III does not authorize judical review. Judical review is not in Section 1, Section 2, and of course not in Section 3. Your point that the government doesn’t follow the constitution now so what good would would amending the constitution do, has some merit. I argue that an Article V convention could be used to empower the states to overturn federal dictates without resorting to violence. This begs the question, will the federal government resort to violence to keep their slaves, slaves. I think we have to try and find out.

[jpsb]

You don’t get it. We are no longer a constitutional republic. We are now living in a post constitutional America ruled by an oligarchy. The best thing you can do is to vote Trump, since only Trump might restore the republic, might. Cruz or Hillary certainly will not.