This squib goes hand-in-hand with my two earlier posts that made the case for an annual Article V state convention, here and here, to defeat both an out control administrative state and runaway scotus. My vision is a regular convention that will examine in detail the past year’s congressional statutes, regulations issued under the auspices of the president, as well as supreme court decisions. Those that infringe upon our liberty can, if recommended by the convention, be repealed or overturned by thirty-eight subsequent state ratifying conventions or state legislatures. What prompted me was the outrageous Obergefell v. Hodges scotus decision that unconstitutionally imposed homosexual marriage on society and was immediately used to justify various DOJ diktats on the states regarding bathroom and locker-room usage.
THIS is why society came together to form a compact of government? No way.
A second method to perhaps achieve the same ends are Mark Levin’s Liberty Amendments. They would super-federalize the government and provide the states with means to roll back congressional statutes, administrative diktats, and scotus decisions on three-fifths votes of state legislatures. Here is a summary of Mark’s ideas.
Another approach, one that would fundamentally trim the sails of scotus comes from a thinker I thoroughly respect, Professor Randy E. Barnett of Georgetown Law School. Among his published works, Restoring the Lost Constitution: The Presumption of Liberty, makes a superb case for bridling the social justice warriors of scotus through resurrection of the much maligned and little understood Necessary and Proper clause of Article I § 8.
Compared to the British constitution in which the extent of parliament’s power isn’t well-defined and is limited only by precedent and natural law, the drafters of the US Constitution narrowed the reach of congress. Congress may borrow money, regulate commerce, coin money, establish post offices and roads, establish courts inferior to the supreme court, raise and support armies, maintain a Navy, etc. as per Article I. Being careful wordsmiths, and knowing they could not draft a code of law for the ages, the Framers ensured that subsequent congresses could enact laws that put the enumerated powers into actual use through the necessary and proper provision. The necessary and proper clause is not a fount of unlimited power; the federal convention of 1787 specifically rejected a near open-ended grant of legislative power in favor of enumerated powers followed by the necessary and proper clause. Time and time again, the Federalists of 1787-1788 emphasized the limits imposed by Article I § 8 and the necessity of empowering congress to implement enumerated powers.
James Madison noted that the meaning of the clause must, “according to the natural and obvious force of the terms and context, be limited to means necessary to an end, and incident to the nature of the specified powers.” Necessary does not mean convenient.
A proper statute is one derived from an enumerated power and does not violate a right retained by the people.
This isn’t to say that congress or the people will always agree on either necessity or propriety, but the clause should be central to any discussion on the constitutionality of most laws. For instance, congress has the power to raise and support armies. A law necessary to this end would provide for acquiring soldiers. If the acquisition depended on volunteers, the statute would certainly be regarded as proper, for no individual right was violated. What if the number of volunteers was inadequate? What is the propriety of a draft? In debate and disagreement that extends to this day, reasonable people will disagree on the propriety or impropriety of forced labor and possible death in the interest of protecting the larger society and the republic itself.
The meaning and application of the necessary and proper clause has been abused by congress and the courts since the US v. Fisher (1803) decision. John Marshall interpreted the clause to give almost complete discretion to congress to determine the means conducive to the exercise of a power granted by the Constitution. During the New Deal, scotus went further and established a “presumption of constitutionality” approach to all congressional statutes. For this, thank its 1938 Carolene decision which I touched upon in this blog two days ago.
Since Carolene, congressional statutes are initially presumed to be constitutional, both necessary and proper. This assumption placed the burden of showing a violation of rights enumerated in the Bill of Rights, or those unenumerated in the Ninth Amendment, on the plaintiff. Continued and steady erosion of even this loose and self-serving standard has resulted in laws, regulations and court decisions that have eviscerated rights itemized in the Bill of Rights and those unenumerated yet retained by virtue of the Ninth Amendment.
The Ninth Amendment (9A):
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
In addition to its convenient presumption of constitutionality of congressional statutes which maneuvers around the necessary and proper clause, scotus works around the 9A as well. Despite the clear wording of the 9A which renders unenumerated rights equal to those of the BOR, scotus differentiates between the rights itemized in the BOR and 9A. To scotus, those in the BOR are fundamental and supposedly worth protecting; the unenumerated rights of the 9A are viewed as liberty interests and are not worthy of protection.
There is no need here to elaborate on the recent, ongoing and accelerating outrageous laws, regulations and scotus rulings that ignore, trample and upend our enumerated and unenumerated God-given and societal rights.
Professor Barnett offers a possible solution. Instead of presuming constitutionality, what if federal courts were required to begin with the assumption that challenged laws were unconstitutional? Instead of forcing plaintiffs to prove unconstitutionality, a presumption of liberty would force the DOJ to prove the constitutionality, the necessity and propriety of congressional laws and executive branch regulations. By this standard, government lawyers would have to cite an enumerated power, then elaborate why the law or regulation was necessary to implement the power, and why the law or regulation did not violate an itemized right in the BOR or those unenumerated in the 9A.
Still, Professor Barnett realizes that ever-creative judges employed by the government would be prone to devise other ways to implement their social justice agenda.
To this end, to require federal courts to judge law by the Framers’ necessary and proper standard will involve a constitutional amendment. Furthermore, to keep scotus on the straight and narrow path, I still believe an annual state amendments convention that meets a few weeks after scotus issues its June decisions is the best and most appropriate device for the sovereign people to restore and keep free government.
We are the many; our oppressors are the few. Be proactive. Be a Re-Founder of the American Republic. Join Convention of States. Sign our COS Petition.
Barnett, Randy E. Restoring the Lost Constitution: The Presumption of Liberty. Princeton, NJ: Princeton University Press, 2004. Book.