Use it or lose it. Article V opponents believe America is too corrupt to be trusted with a Convention of the States. They believe We The People fulfilled Ben Franklin’s fears and are no longer fit for self-government. If true, it also means we don’t have any business voting. Nonsense.
Thanks to our collective failure to demand Article V Conventions of the States when necessary, We The People slowly, over decades, relinquished our sovereign authority to Scotus.
I challenge anyone to explain the practical limits of the Supreme Court of the United States. On paper our system provides mutual checks, but what of actual limitations? Oh, there’s the “exceptions and under such regulations” check in Article III, but that was for the Framers’ Senate, the one with intrinsic moxie, and not the flaccid post-17th Amendment collection of showboating three-term congressmen masquerading as statesmen.1
We’ve had a good run. James Madison thought the republic would slide back into monarchy around 1930.2 Talk about prescient! That we’re still here almost a hundred years later is quite an endorsement of the Framers’ system but thanks to surrendering our sovereignty to Scotus, our Framers’ gift to mankind is today a rickety contraption hostile to free government where civil and political rights exist at the pleasure of the judiciary.
In contravention of the Ninth Amendment all judges swear to uphold, Scotus regularly dismisses civil and political rights declarations by the people and often natural law itself. Scotus’ reversal of the 2008 California constitutional amendment to frame marriage as between a man and a woman was a seminal moment. Instead of passive nationwide acceptance, there should have been nationwide outrage, impeachment of the judges and calls for an Article V COS because Scotus was duty-bound by the 9th to defend the amendment, just as it is bound to defend the rest of the Bill of Rights and Constitution.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Nothing in the Constitution, certainly not the 14th Amendment, empowered Scotus to deny this biblical and traditional declaration in the CA constitution. But, we’ve developed the unfree habit of letting five lawyers upend society as their mood strikes. I suppose a people that, a few decades ago, let Scotus deny the 1st Amendment right to religious worship in public places and the right to life itself, wouldn’t be too upset when Scotus unconstitutionally fabricated rights to rear-end rodeo and homosexual marriage.
We can go along and pretend we’re still a free people, pretend that voting is all we can do and be satisfied with the existing, shaky, semi-conservative Scotus. But that reflects a cowardice, a cowardice that will certainly return to bite future generations when the next progressive president gets his or her turn.
Scotus simply doesn’t recognize a higher power. In practice it is superior to the parchment barriers of the Constitution, We the People, and God Himself. Scotus is a tyranny that only we the sovereign people can defeat through an Article V COS.
The 17th Amendment must go. Among the reasons it must go is because it so much as invited Presidents to nominate progressive judges. Progressivism has been around since the mid-19th century yet progressive judges didn’t appear in force until the New Deal when FDR encountered judicial resistance to his fundamental transformation of the US. Yes, FDR was a radical, but it was an elected, rather than a state-appointed Senate that confirmed his nominees. FDR was wildly popular and few senators would risk reelection opposing him even if it meant anti-Constitutional federal jurists.
This fundamental corruption of feeding, at first Liberal, then unaccountable Leftist judges into the pipeline depends of course on presidents and senators who expect judges to define civil and political rights in the cause of social justice. It’s why the Left mans the ramparts and threatens lives when Presidents nominate originalist jurists.
I’ve hammered the point at Article V Blog dozens of times and will only add that all good things, necessary reforms to our runaway government, are possible with repeal and impossible without. Repeal the 17th to allow slow restoration of the 10th and the people’s 9th Amendment sovereignty, their right to define civil and political rights. There is no other way.
The states have submitted hundreds of unanswered Article V applications to Congress.3 In recent years alone, twenty-eight states applied for a Balanced Budget amendment, while the Convention of States project is responsible for fourteen, five for WolfPac, and seventeen for US Term Limits.
To ensure standing, these groups should combine to convince a state attorney general to sue Congress to do its duty.4 While I am not confident the Scotus will apply Article V as written, meaning there is no requirement for identical or similar applications to count toward two-thirds (34) of the states, the lawsuit might launch a raucous national throw-down on the essence of who is in charge, because right now, it isn’t We The People, and never will be without an Article V end-run around Washington.
Should Scotus not do its duty to enforce Article V, that is another topic. In that event, we’re back to 1776.
1. The framers provided plenty of practical checks.
2. Stourzh, G. (1970). Alexander Hamilton and the Idea of Republican Government. Stanford: Stanford University Press. 39.
3. Congressional Memorials.
4. Friends of Article V.