As described in Part I, most Americans believe they have been stripped of most of their Constitutionally-mandated freedoms and are being controlled by a vast army of gray-suited governmental officials and bureaucrats who are no longer responsive to the will and wishes of the people.

Three principal culprits were identified in the marginalization of the American electorate in the governing process. First, the modern judiciary has crossed the line of its Constitutionally-mandated powers by creating legislation as opposed to interpreting the law. These court-created laws are wrongly assumed to be the law of the land. Second, overreach of the Executive branch has ignored or violated the Constitution through disregard of Constitutional limits on executive powers, selective enforcement and/or bureaucratic changes to laws enacted by Congress, and circumvention of the powers of the legislative branch through issuance of illegitimate executive orders. Third, there has developed an autocratic, rapacious nanny-state bureaucracy whose regulatory oversight intrudes into minutest areas of the lives of a free people capable of making rational decisions without government interference. This massive, heavy-handed, and adversarial bureaucracy has become largely unaccountable to Congress and the American people.

The Road to Serfdom

F. A. Hayek in his seminal work titled The Road to Serfdom written during World War II addresses the question of how democracies that begin with limitations on the power of their elected officials can succumb to the exercise of arbitrary power of the few.

There is no justification for the belief that, so long as power is conferred by democratic procedure, it cannot be arbitrary…it is not the source but the limitation of power which prevents it from being arbitrary…If democracy resolves on a task which necessarily involves the use of power which cannot be guided by fixed rules, it must become arbitrary power.[1] [emphasis added]

The American Founders’ Constitution fixed the rules by which the Republic was to be governed. However, in spite of the intent of the Founders when writing the Constitution, the popular liberal mantra for most of the twentieth century and the beginning of the twenty-first century is that the Constitution is a “living document” that must be modified or bent to address the modern age and problems never foreseen by the Founders. By living document, the Constitutional liberals believe that its meaning and intent should be an instrument for enlightened social change to meet the needs of the hour. The liberals’ living document has become an arbitrary document in which the few impose their will on the majority. But Thomas Jefferson cautioned against such liberalism regarding the Constitution.

On every question of construction [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.[2]

On June 23, 2016, the British people cast off forty-plus years of rule by the European Union, a super-state conglomeration of twenty eight nations that had surrendered much of their sovereignty to an unelected bureaucracy headquartered in Brussels, Belgium. Ignoring the advice, warnings, and propaganda of politicians, cultural elites, and others with a vested interest in the status quo, the British voters asked themselves one fundamental but simple question, “Do we want an undemocratic authority ruling our lives, or would we rather regain control over our destiny?” The question the Brits asked is the question Americans must also ask and answer quickly before the loss of freedom is irreversible.

Hillary Clinton has given her answer, and it is on the side of an undemocratic authority to rule American lives. In a May 2013 paid speech allegedly delivered to Banco Itau, a large Brazilian bank, Clinton said:

My dream is a hemispheric common market, with open trade and open borders, some time in the future with energy that is as green and sustainable as we can get it, powering growth and opportunity for every person in the hemisphere.[3] [emphasis added]

For Americans, the process of repairing nearly two centuries of humanistic erosion of the biblical foundations upon which the nation was built is far more difficult than the single ballot box victory achieved by the British people. The unelected and unresponsive British task masters operated from the outside—from the headquarters in Brussels, Belgium, and its various outposts throughout the EU. America’s wayward overseers are home-grown humanistic oligarchs entrenched in the nation’s governing fabric and headed by the likes of Hilary Clinton.

That America’s governing elite would eventually succumb to lure of power and position to the detriment of the people being governed would be no surprise to the Founders. Daniel Webster recognized the love of power within the hearts of men was a constant threat to liberty.

Good intentions will always be pleaded for every assumption of power. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions…There are men, in all ages…who mean to govern well; but they mean to govern. They promise to be kind masters; but they mean to be masters…They think that there need be but little restraint upon themselves. Their notion of the public interest is apt to be quite closely connected with their own exercise of authority…The love of power may sink too deep in their own hearts even for their own scrutiny…[4] [emphasis added]

How can Americans recover their freedoms when their leaders ignore or pervert the original meaning of the Constitution?

For Americans to recover their freedoms from the reigning government by the few (i.e., oligarchy), they must revisit the Constitution to once again fix the rules by which their representatives are to govern. Fortunately, the Founders held the biblical understanding of the fallen nature of man and wisely made provision in the Constitution to rein in a wayward government led by wayward men and women who have strayed from the meaning of Constitution as intended by the Founders. That provision was made in Article V.

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…[5]

The Convention of States Project was founded by Citizens for Self Governance for the purpose of stopping the increasing abuse of power by the federal government. They believe the governing process in Washington, D.C. is broken because of the growing massive debt incurred by the government and the seizing of power from the states.[6] The following is the stated goal of the Convention of States Project:

…to urge and empower state legislators to call a convention of states. The delegates at such a convention would have the power to propose amendments to the Constitution that would curb the abuses of the federal government. Article V of the Constitution gives them this power; the COS Project will give them an avenue through which they can use it.[7]

Rather than proposing a specific amendment, the COS Project is calling for a convention under Article V of the Constitution for a specific subject which is the limitation of the power and jurisdiction of the federal government.[8] [emphasis added] The COS Project has identified four major areas of abuse by the federal government which are the subjects to be addressed by a Convention of States.

• The Spending and Debt Crisis
• The Regulatory Crisis
• Congressional Attacks on State Sovereignty
• Federal Takeover of the Decision-Making Process[9]

To call a Convention of States under Article V of the Constitution, the legislatures of two-thirds of the states (34) must pass a resolution called an “application” calling for a Convention of States. The applications must request a Convention of the States for the same subject matter. In the COS Project, the subject matter is the limitation of the power and jurisdiction of the federal government. The applications are delivered to Congress. The business of the convention is to propose amendments to the Constitution related to the specific subjects agreed upon by the states.[10]

Commissioners from each state propose, discuss, and vote on amendments to the Constitution. All amendments at the convention must pass by a simple majority of those states at the convention. The approved amendments will be sent back to the states for ratification. Each state has one vote at the Convention regardless of the number of commissioners sent by that state. A state’s vote is on the amendment to be sent to the states will be determined by a majority of the voting commissioners in a state’s caucus. Three-fourths of the states (38) must ratify any proposed amendments. Once states ratify, the amendments become part of the Constitution.[11]

Generally, Congress designates the state legislatures as the ratifying body. However, Congress may choose to have the states call ratifying conventions whereby an election would be held in each state to allow the electorate to choose delegates to the ratifying conventions.[12]

A Constitutional purist, Supreme Court Justice Antonin Scalia was one of the most articulate and clear thinking justices of modern times. Scalia was appointed to the Supreme Court in 1986 by President Reagan and served on the Court until his death in February 2016. In 1979 Scalia was a law professor at the University of Chicago when he participated in panel discussion on Article V conducted by the American Enterprise Institute. His remarks at the panel discussion captured the heart of the importance of and need for a Convention of States.

We have come a long way. We have gotten over many problems. But the fact remains that a widespread and deep feeling of powerlessness in the country is apparent with respect to many issues, not just the budget issue. The people do not feel that their wishes are observed. They are heard but they are not heeded, particularly at the federal level. The Congress has come up with a lot of palliatives—the legislative veto, for example-which do not solve the problem at all. Part of the problem as I have noted is simply that the Congress has become professionalized; its members have a greater interest than ever before in remaining in office; and it is served by a bureaucracy and is much more subject to the power of individualized pressure groups than to the unorganized feelings of the majority of the citizens. This and other factors have created a real feeling of disenfranchisement that I think has a proper basis. The one remedy specifically provided for in the Constitution is the amendment process that bypasses the Congress.[13]

These feelings of powerlessness and disenfranchisement arise because the processes of a huge and complex government have usurped the power of the people to govern themselves. Thomas Jefferson recognized the inability of man to restrain his innate lust for power. His solution was also found in the Constitution. “The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”[14] Article V is an integral link in that chain.

Larry G. Johnson

Sources:

[1] F. A. Hayek, The Road to Serfdom, Bruce Caldwell, ed., (Chicago, Illinois: University of Chicago Press, 1944, 2007), p. 111.
[2] David Barton, Original Intent – The Courts, the Constitution, & Religion, (Aledo, Texas: Wallbuilder Press, 2008), p. 28.
[3] Frank Camp, “WikiLeaks strikes again: Clinton Allegedly Praised ‘Open Borders’ in Paid Speech to Foreign Bank,” The Daily Caller, October 8, 2016. http://www.dailywire.com/news/9802/wikileaks-strikes-again-clinton-allegedly-praised-frank-camp (accessed October 12, 2016).
[4] Daniel Webster, Speech delivered at Niblo’s Saloon in New York, March 15, 1837, (New York: Harper and Brothers, 1837), p. 17 from Archives.org. https://archive.org/details/speechdeliveredb01webs (accessed October 25, 2016).
[5] Article V, The Constitution of the United States.
[6] Media/About/News, Convention of States. http://www.conventionofstates.com/about (accessed October 12, 2016).
[7] Ibid.
[8] Ibid.
[9] Learn – The Problem, Convention of States. http://www.conventionofstates.com/faq (accessed October 12, 2016).
[10] Learn – The Solution, Convention of States. http://www.conventionofstates.com/faq (accessed October 12, 2016).
[11] Ibid.
[12] Ibid.
[13] Learn – Frequently Asked Questions, Convention of States. http://www.conventionofstates.com/faq (accessed October 12, 2016).
[14] Thomas Jefferson, “Two enemies of the people are criminals and government…” Thomas Jefferson Foundation, Inc. (US), https://www.monticello.org/site/jefferson/two-enemies-people-are-criminals-and-governmentquotation (accessed October 25, 2016).
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On June 23, 2016, the British People throughout the United Kingdom voted to end forty plus years of membership in the European Union. As one writer put it, many Britons felt forsaken by the country’s political and cultural leadership. Many believed that their lives were controlled by “gray-suited Brussels bureaucrats” at the EU’s headquarters.”[1]

Many Americans and possibly a large majority feel they, too, are being controlled by a vast army of gray-suited governmental officials and bureaucrats who are no longer responsive to the will and wishes of a majority of the people. There are three principal culprits in the marginalization of the American electorate in the governing process.

Judiciary

The problem with the modern judiciary is that it has crossed the line of its Constitutionally-mandated powers by creating legislation as opposed to interpreting the law. In the first eight decades following the writing of the Constitution in 1787, the Supreme Court ruled only twice that a law created by Congress was unconstitutional, and both times the ruling was ignored by Congress and the President.

In Marbury v. Madison, President Jefferson rejected the belief that the Judiciary was the final voice and described the damage to the Constitution of a contrary opinion.

[O]ur Constitution…has given – according to this opinion – to one of them alone the right to prescribe rules for the government of the others; and to that one, too, which is unelected by and independent of the nation…The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.[2] [emphasis added]

Sixty-two years later, Abraham Lincoln and the Congress ignored the ruling of the Supreme Court in the Dred Scott case. Not only was the ruling ignored but directly disobeyed. On June 9, 1862, Congress prohibited the extension of slavery into free territories and in 1863 Lincoln issued the Emancipation Proclamation ending slavery throughout the nation.[3] Several of Abraham Lincoln’s remarks in his first Inaugural Address were prompted by the Dred Scott decision.

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court…At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased to be their own rulers, having…resigned their government into the hands of that eminent tribunal.[4] [emphasis added]

Contrary to popular belief, the Supreme Court does not make its ruling the “law of the land.” In defending his veto of legislation passed by Congress and deemed Constitutional by the Supreme Court, President Andrew Jackson made a noteworthy description of the duties of the three branches of government with regard to interpreting the Constitution.

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others…The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.[5]

Irrespective of words of Jefferson, Jackson, and Lincoln, the modern judiciary in the age of the “living” Constitution has made it increasingly pliable in order to accommodate the humanistic worldview and philosophies of society’s elites and overseers in order to impose their socially-engineered laws and regulations which stand in opposition to the popular will and wishes of the people and their mores, norms, traditions, and voices of the past.

Executive Branch

The rule of law implies that governmental authority (power) is limited and may only be exercised in accordance with written laws adopted through an established procedure. When elected or appointed officials and bureaucrats exercise power beyond the limits established by the law, it is called abuse.

The brazen overreach of the Executive Branch under the Obama administration has occurred through the disregard of Constitutional limits on executive powers and may be unparalleled in American history. In addition to scorning the rebukes by the Supreme Court for his un-Constitutional executive actions, the President has violated his Constitutional duty to faithfully execute the laws through his selective enforcement and/or changes to laws enacted by Congress. Additionally, the administration has regularly circumvented the powers of the legislative branch through the issuance of illegitimate executive orders to accomplish what Congress would not approve and to frustrate implementation of legislation that Congress has approved.[6]

The two pillars of Barack Obama’s crumbling legacy are Obamacare and the American foreign policy of disengagement marked by diplomacy and multilateralism.[7] But perhaps Barack Obama’s presidency will be most remembered for his above-the-law actions in the Executive Branch and the attendant widespread lawlessness at all levels of the federal government under his administration.

Unelected bureaucracy

Regardless of President Obama’s involvement in or prior knowledge of the various scandals that have been endemic throughout his administration, his arrogant example sent the message that his decrees and agenda were superior to the laws of the land. Although an abusive bureaucracy was not the invention of President Obama, he has dramatically accelerated the level of abuse.

Regulatory oversight is a necessary and proper function of government. However, under the expansive interpretation of the Constitution’s general welfare clause beginning in 1936, much of regulatory oversight has become an autocratic function of a nanny-state bureaucracy intruding into the lives of a free people capable of making rational decisions without government interference.[8] The burden and cost of regulations on average Americans and businesses is staggering. To give insight into the massive size of the federal bureaucracy we look to Title 27 of the U.S. Code of Federal Regulations. This is the U.S. Tax Code which contains 16,845 pages including the part written by Congress. It is available for purchase from the U.S. Government Printing office for $1,153. However, the U.S. Tax Code is just one of 50 titles found in the U.S. Code of Federal Regulations, each of which contains one or more individual volumes, which are updated once each calendar year, on a staggered basis.[9] To these we add a multitude of state, county, city, and other regulatory entities’ rules and regulations.

In recent years there has been a frightening new adversarial mutation to the once overbearing but benign American governmental bureaucracy. The most recent scandals at the IRS and Departments of State, Justice, and Health and Human Services have exposed the dark underbelly of the rapacious bureaucratic monster. The goal of these agencies and bureaucracies is self-perpetuation which is accomplished by aiding those in power that are most friendly to their continued existence, financial health, and growth. A recent op-ed piece written by John Brock reveals how this symbiotic system works.

Government agencies are extorting billions of dollars from companies they regulate to the extent they are becoming independent of congressional appropriations and congressional oversight. For example, a Tulsa manufacturing firm was recently notified by the Environmental protection agency that a report was late. The company’s government consultant informed the company that previously such an error would have resulted in a $10,000 fine. The fine this time was $300,000. However, if the company would agree not to appeal through courts, the EPA would reduce the fine to $200,000. That is about the legal cost of an appeal. The delinquent report was that “there is nothing to report.” Early on regulators required a report only if there was a rule violation.

Most think that fines and penalties assessed by regulators go into the Treasury. Not so. The agency gets to keep the money, which it uses for bonuses to employees, employee parties, hiring more employees and buying equipment. For example, in the last eight years most agencies, using funds acquired from fines, have created their own police departments in lieu of using federal marshals. There are now more agency police than there are Marines in the U.S. Marine Corp. This extortion happens every day and all over the country and is increasing.[10]

In a 2008 speech, presidential candidate Barack Obama said that, “We cannot continue to rely only on our military. “We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.” Where is this civilian national security force? It is housed in over seventy agencies according to a 2012 report and includes such agencies as the National Oceanic and Atmospheric Administration which has an enforcement division manned by 191 employees and a budget of $65 million. Also, these agencies are often called on to conduct joint enforcement operations. And to whom do these seventy agencies ultimately report? That’s right, the president.[11]
______

It is time for the states, Congress, and the American people to reign in the excesses of the Judiciary and Executive branch of government that has undermined Constitutional balanced of powers as designed by Madison and the Founders during the Constitutional Convention. Can there be a Brexit for America to shut down these gray-suited bureaucrats who are threatening the freedom of ordinary Americans? No, but there is a Constitutional solution. More on that in Part II.

Larry G. Johnson

Sources:

[1] Amanda Taub, “Brexit, explained: 7 Questions About What It Means and Why It Matters,” The New York Times, June 23, 2016. http://www.nytimes.com/2016/06/21/world/europe/brexit-britain-eu-explained.html?_r=0 (accessed October 5, 2016).
[2] David Barton, Original Intent, (Alledo, Texas: Wallbuider Press, 2008), p. 271. Quoting: Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, ed., (Washington, DC: Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 213, to Spencer Roane, September 6, 1819.
[3] Ibid. p. 272.
[4] Ibid.
[5] Ibid.
[6] Larry G. Johnson, “The end of sustainable government,” CultureWarrior.net, August 15, 2014. https://www.culturewarrior.net/2014/08/15/the-end-of-sustainable-government/
[7] Charles Krauthammer, “The Stillborn Legacy of Barak Obama,” The Patriot Post, October 7, 2016. https://patriotpost.us/opinion/45242 (accessed October 10, 2016).
[8] Larry G. Johnson, “The fragility of free speech in America,” CultureWarrior.net, March 21,2014. https://www.culturewarrior.net/2014/03/21/the-fragility-of-free-speech-in-america/
[9] “What is the Real Size of the U.S. Federal Tax Code,” Isaac Brock Society, February 12, 2012. http://isaacbrocksociety.ca/2012/02/12/what-is-the-real-size-of-the-u-s-federal-tax-code/ (accessed April 9, 2014).
[10] John Brock, “Citizens deliver a vote of no confidence,” Tulsa World, July 15, 2016, A-9.
[11] “Beware the increasing militarization of government,” Investor’s Business Daily, April 16, 2014. http://www.investors.com/politics/editorials/many-federal-agencies-have-armed-divisions/ (accessed October 10, 2016).