When did a republic extricate itself from imminent tyranny through the election of better or more virtuous people?
Perhaps Article V COS opponents will point to the election of President Trump. There’s no doubt that he is a reprieve, but a reprieve is just that, a temporary interruption, a finger in the dike to the tide of tyranny.1 Can we somehow do likewise with Congress and Scotus? Just elect better congressmen and senators who in turn will only consent to conservative judges? Is it reasonable to believe we can do with Congress in the future what we haven’t done since the 17th Amendment of 1913? Or are we to forget about an incorrigible Congress and wager our liberty on a Trump-like successor in 2024?
The corollary to electing better people is the Article V COS opponents’ sugary bumper-sticker slogan to “Just Enforce the Constitution we Have.” Here, they disregard the structure of government, as if the 17th Amendment doesn’t matter, and any ol’ construction will suffice to secure liberty. On what historical or philosophical basis do they build these beliefs?
They are built on the belief that the 1787 Constitution is proof of a virtuous people. If they weren’t virtuous, it follows they wouldn’t have bothered with our wonderful Constitution. Yet, if governmental structure is irrelevant, and the people back then were virtuous, why didn’t the government of the Articles of Confederation achieve its stated purposes? Should the states have sent better delegates to the Confederation Congress? Had the people sent better men to their state legislatures perhaps the states would have obeyed the Articles of Confederation and complied with tax requisitions and obeyed the peace treaty with Great Britain. We read the admonition to send better people not only at conservative forums, but also from the otherwise patriotic John Birch Society, Publius Huldah, and the late Phyllis Schlafly.
Now, not to put too fine a point on the matter, but Article V COS opponents’ call to elect better people is identical to what I’ve heard my entire life from Liberals. Soviet Communism, the various socialist “democratic republics” and Venezuela simply needed better boys and girls running the show to make socialism “work.”2
What Article V opponents profess flies in the face of what the men who drafted the Constitution had to say about government.
From their examination of history our Framers weren’t all that confident they could build an enduring republic. History just wasn’t on their side. All republics had eventually failed and fell into, at best, a limited monarchy. Like the person who exercises, eats well, and generally looks after his health despite the full knowledge of eventual death, our Constitution has many elements that put off what is, perhaps, inevitable. I will touch on only three of its noteworthy aspects that, at a minimum, delay what our Framers feared. The Constitution:
1. Guarantees to the States a republican form of government.
2. Is the Supreme Law of the Land.
3. Through Article V provides peaceful means for the sovereign people to amend their supreme earthly law.
I won’t dwell on the first two other than to say the most formidable enemy to the republican form of state level government and the supremacy of the Constitution is the Scotus.3 The major breaches of our Constitutional protections did not well up from the people or from elected politicians; they rained downward, as oppressions do in despotic countries, from the unelected and unaccountable. As a practical matter, the Scotus, and not the Constitution, is supreme. Thank the 17th Amendment for an unmoored Scotus.
As for the third, the 1780s and Article V marked the end of the era in which political philosophy regarded decay and revolution as the iron rule of historical change. Maybe frequent return to first principles could indefinitely delay death. This wasn’t a flash-in-the-pan notion. Around 1520 Niccolo’ Machiavelli wrote, “To insure a long existence to religious sects or republics, it is necessary frequently to bring them back to original principles.” The first draft of what evolved into Article V in Madison’s Virginia Plan of government reflected the long line of thought in peaceful renewal from Machiavelli to Algernon Sidney and John Trenchard/ Thomas Gordon.
I’m regularly amazed when reading the airhead calls at conservative websites to armed revolution, of watering the tree of liberty, as if things will go the American way of 1776 instead of the French way of 1789. The surest path to original principles is not in violence; it’s through a peaceful, institutionalized convention.
Now, at the risk of stating the obvious, there’s been a lot of Constitutional amending going on these past hundred years, but precious little of it went through Article V. Article V COS opponents emotionally put aside the elephant in the room, the deadly, unrelenting damage done by Scotus enabled by the 17th Amendment.
Thought experiment. What if Congress had done its duty and called a COS every time two-thirds of the States applied? Would the nation have early on recognized the mistaken 17th Amendment? We’ll never know, but imagine half a dozen conventions spread across the 20th century. Would the sovereign people have ratified homosexual marriage, rewritten the commerce clause to include intrastate commerce, booted the Bible from the public square, determined that counties could not be the representational basis of state senators, and committed many additional outrages?
Not a chance.
While it’s irrational to assume gross distortions and societal assaults from a COS, let’s accept for the sake of argument here that Article V Conventions, instead of Scotus decisions, actually did these horrid things to the Constitution from the mid-20th to early 21st centuries. If conventions proposed these disgraces as formal amendments to the Constitution, at least we’d know they were Constitutional. As the product of Article V Conventions, they are all subject to possible correction by future Conventions. Not so today. Scotus’ amendments are beyond the electoral reach of the people. We are at best the subjects of Scotus and at worst, its slaves.
I’d much rather live in a screwed-up republic screwed up by the sovereign people than be a slave to five lawyers in a phony republic in which the people are too timid and beaten down to take peaceful measures to save themselves and their posterity.
I wrote of nothing that Article V opponents don’t already know. It is past time for the nation to come to terms with an unchecked, despotic Scotus that recognizes no limits. Nothing other than a return to first principles via an Article V COS can reverse our course. Nothing.
1. His election smoked out the major Deep State players in the executive branch and Congress. We only thought the Administrative State was bad; its dark sibling, the Deep parasitic State is a government within a government and will fight for its life, even if it means the death of its parent organism, the American republic.
2. James Madison: “If men were angels, no government would be necessary. . . . In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.”