Subtitle: Correct the Defects.
When it comes to its talking points, The John Birch Society (JBS) is thick with assertions and thin with evidence and history. For instance, the JBS regards the US Constitution as perfection on earth. This isn’t an exaggeration.1 The JBS simply disregards the Framers’ perception of their work.
Right out of the chute in 1788, Alexander Hamilton in Federalist 85 encouraged the remaining states outside the Union to ratify the Constitution and join their fellows in Article V to provide amendments that better secured some basic rights. The Constitution, he wrote, was not “absolute perfection,” but upon the whole, it was good plan, “the best that the present views and circumstances of the country will permit.” He went on:
The convention delegates from diverse societies did their best, yet didn’t expect their work to remain frozen in time. While the JBS finds perfection in our governing form today, it curiously doesn’t address the Constitution’s previous versions. Was it perfect in 1787? Was it imperfect after each successive amendment until it finally reached fulfillment with passage of the last amendment in 1992? The JBS doesn’t say.
Since the Constitution is without defects, the JBS certainly doesn’t think the unwashed people have any business fooling around with it. Forget that Declaration of Independence thing about the right of the people to alter their government. But some people are fooling around with the Constitution. Somehow the JBS neglects the unconstitutional and established habit of the Supreme Court to rewrite congressional laws and the US and State Constitutions. All law is the plaything of Scotus airheads who amend at-will. It is fair to say that thanks to our collective reluctance to exercise the gift of Article V, We the People do not only not exercise sovereignty, we’ve assigned it to Scotus.2
So, the question isn’t whether the Constitution will be amended; the question is, “by whom?” Through its silence, the JBS is quite comfortable with Scotus usurpations.
Unlike Scotus decisions, should the people ratify an amendment they later come to regret, they can repeal it. The 18th Amendment prohibition of alcohol was perhaps noble, but was ultimately unworkable and lasted only fourteen years until the 21st Amendment. We the People are powerless to rescind outrageous court decisions, court decisions so repulsive and egregious that even democrat congresses with concurrent democrat presidents didn’t dare attempt to ensconce into statutory law.
Despite the horrific consequences of an unaccountable judiciary, the JBS denies the applicability of Article V, asserting that, “Article V has specific purposes. It was never designed to rein in federal power but rather to correct errors in the Constitution.” This is a silly hair-splitting distinction.
In Federalist 43, we see through Madison that the Framers didn’t regard themselves as gods capable of crafting a perfect Constitution. Instead, “That useful alterations will be suggested by experience could not but be foreseen.” He noted that the Article V process was balanced; neither was it too easy nor too difficult which “might perpetuate its discovered faults . . . as they may be pointed out by the experience on one side (Congress), or on the other (States).
On June 11th 1787, Virginia’s George Mason said the plan “to be formed will certainly be defective,” and urged an amending provision that didn’t rely solely on Congress. On September 15th, an alarmed Mason repeated his earlier warning and said, “no amendments of the proper kind would ever be obtained by the people if the Government should become oppressive, as he verily believed would be the case.” So, if Madison’s and Mason’s comments are a guide, the use of Article V wasn’t limited to correcting defects, but also to deal with oppression, such as the exercise of sovereignty by Scotus.
JBS disregards the importance of governmental structure. To paraphrase James Madison, if men were angels, . . . a single legislative house of government, without a president or judiciary, would suffice. If all that mattered were the people comprising government, then the Articles of Confederation should have been a resounding success. After all, the greatest republican statesmen in history attended the Confederation Congress. What happened? Why was the confederation a disappointment? After all, the confederation had powers similar to those in the Constitution especially in the matter of obedience to Congressional resolutions. From Article XIII, “Every State shall abide by the determination of the united States in congress assembled . . . ,“ yet the states often ignored congressional determinations.
In Federalist 38, Madison put a fine point on the matter of the composition, the particular form of government, “All the dangers from a defective construction of the supreme government of the Union seem to be realized.” The appointment or election of virtuous men to the confederation government was inadequate to secure liberty.
The JBS doesn’t consider man’s inherent shortcomings and that only the Framers’ structure of government, including a Senate of the States, provides the necessary inherent checks through self-interest. Popularly elected senators, like their House colleagues, must cozy up to the democratic element, the passions of the people. The 17th Amendment was purposely designed to render the senate simpatico and congruent with the House of Representatives. It worked.
On the other hand, pre-17th presidents didn’t nominate radical progressive lawyers to the federal bench. Why bother? Senators in the employ of state legislators covetous of federalism could hardly be expected to consent. This problem, of answering to popular passions, just wasn’t a problem when senators answered to state legislators. Just as ratification conventions reversed the 18th Amendment, We the People can do the same to the 17th.
As for the JBS’ perceived unfitness of We the People to correct our governing form and to participate in self-government at all, who is the JBS to look down their noses and judge when the sovereign people may exercise their God-given right, as they see fit, to frame their government? I say the months leading to a Convention of States after a (probably court-ordered) congressional call may be the necessary spark that further awakens the public, the same public that dumped the Establishment in 2016, and reinvigorates appreciation for first principles.
1. “Nothing is wrong with the Constitution as it currently exists.” The New American.
2. It’s easy to amend the Constitution. It’s been done dozens of times since WWII. Send the right case with the right litigants at the right time to an adequately Leftist-leaning Scotus and voila’, amend the Constitution. Pretty slick, eh? Through their silence, this is the end-run around the Constitution that Article V Opponents defend. Fear Scotus, not an Article V COS.