Constitutional Avoidance: Then and Now

by Rob Natelson
original article found here.

Americans have been dipping into the history of the Founding Era for clues as to how to get our country out of its current mess.

Here’s an instructive story:

In 1783, the Constitution had not yet been written, and Congress was operating under the Articles of Confederation. Congress had no ability to enforce its laws, no power to tax, and could not even meet its obligations to the newly-victorious Continental Army.

Debts kept mounting up. In one humiliating incident, Congress felt compelled to flee from Philadelphia when armed troops demanding their back pay physically surrounded the congressional meeting-place at Independence Hall.

Congress re-convened in Princeton, New Jersey. Once there, the delegates started to talk about how it would be a great idea to have a national capital in a district of its own. But Congress couldn’t agree on where the capital district would be located.

Votes were taken on locations in each of the thirteen states, and they were all voted down. More importantly, Congress was completely broke — it simply had no money to build a capital.

Faced with a crisis, some of the delegates had an idea. If the idea of having one national capital wasn’t feasible, then they would propose building TWO national capitals – one on the Delaware River, and one on the Potomac. And that’s just what Congress voted to do!

The lesson for today: The biggest domestic national crisis, almost every impartial observer agrees, consists of the massive and unfunded entitlement programs sweeping the federal government toward default and bankruptcy.

The second biggest problem is health care costs — rising crazily because the government has replaced the traditional doctor-patient relationship with huge bureaucracies of “third party payers” ( government agencies and insurance companies).

The obvious cure for both problems is to find ways to disengage government and return these services to the free market. But both of those solutions are off the congressional agenda. Instead, a majority in Congress wants expansion of entitlements and third-party payments.

Politicians haven’t changed much.

What finally cured the problems of the 1780s was a new Constitution that restructured Congress and clearly defined its powers. It’s becoming more and more clear that it is also going to take some fundamental change to deal with modern congressional irresponsibility — probably a constitutional amendment or two.

Rob Natelson is a constitutional law professor at the University of Montana, and runner-up in the 2000 “open primary” for Governor of Montana. His opinions are his own, and should not be attributed to any other person or institution.

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This post was written by:

Timothy_Baldwin - who has written 117 posts on Liberty Defense League.

Timothy Baldwin is an attorney from Pensacola, FL, who received his B.A. degree at the University of West Florida and graduated from Cumberland School of Law at Samford University in Birmingham, AL. After having received his Juris Doctorate degree from Cumberland, Baldwin became a Felony Prosecutor in the 1st District of Florida. In 2006, he started his own law practice, where he created specialized legal services entirely for property management companies. Tim is a prolific writer/columnist and writes for numerous publications, including The New American magazine. Tim is also an articulate speaker relevant to freedom’s issues. Tim is an author of legal and political articles, as well as his latest book, Freedom For A Change (published by Agrapha Publishing). Baldwin is involved in important state sovereignty movement issues, including being co-counsel in the federal litigation in Montana involving the Firearms Freedom Act.

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5 Responses to “Constitutional Avoidance: Then and Now”

  1. Carl Says:

    It is past time to petition the States to take back their Senate and put a stop to the outrageous totalitarian socialist/fascist policies that are leading this country to an inevitable police state and bloody revolution.

    Article Five of the U.S. Constitution states unequivocally: “ ~ that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

    The 17th Amendment is little more than contrived deceit. It is non binding as law or standing as an amendment and the only reason it continues to exist is because state’s legislators, out of pure ignorance, continue to consent to it.

    It is time for us to urge our respective state’s legislators to withdraw their consent to remaining silent and un-represented.

    It is time for us to urge our respective state’s legislators to repudiate the 17th and reassert their voice, their un-amendable, Constitutionally guaranteed, right to equal suffrage, in their Senate.

    They have two choices; they can remain silent and continue as the subservient front line enforcers of Federal will and front line recipients of growing civil unrest or they can stand up and defend their people, their states and this Constitutional Republic by reclaiming their Senate and putting a stop to the elitist led, totalitarian insanity that is destroying us.

    We want our Republic back.

    Carl Black

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