Liberty Defense League Timothy Baldwin Romans 13

You Are Here: Articles Friday, May 15, 2015

by Tim Baldwin

A recent federal court (ruling that the National Security Agency’s gathering private information without judicial warrant is unconstitutional) shows why Article V opponents to limit or redefine federal power are wrong and are more concerned about agenda than evidence.

Article V opponents recite the usual reason for why amending the Constitution should be opposed. They say, “we should not amend the Constitution because they don’t follow the Constitution now!” This rationale mistakes many principles of politics and law, but—focusing on only one—it completely disregards what this federal court ruling (one of many similar rulings) shows: amendments do work and are the only way to limit the federal government’s powers under Articles I, II, and III.

Americans in 1787 expressed the same fears that Article V opponents express today, but they handled it the opposite way: they amended the Constitution. Then, the States were considering ratifying the Constitution, but many thought that the proposed Constitution would not adequately control the federal government and secure certain rights of the people. Like Article V opponents today, they claimed that the federal government would not follow the Constitution in spite of there being no expressed or implied constitutional authority that would have granted the federal government the power to, for example, search and seize private property without judicial warrant.

Put simple, they believed the federal government would ignore the Constitution. If those States would have used Article V opponents’ rationale, they would have never amended the Constitution, and the Bill of Rights would be nonexistent. If they followed Article V opponents’ advice then, they should have simply “enforced the Constitution as it was.”

The Founding generation never even heard of this flawed rationale. Rather, they saw the necessity of amending the Constitution to curb their fears and place clear limits on the federal government. They did it again with the Eleventh Amendment a few years later in 1795 to correct a federal court decision regarding State immunity.

In truth, the States in 1787 had more reason not to amend the Constitution than we do today, but they did anyway. The reason is this: since the Constitution’s nature was federal, this meant that all powers not granted to the federal government were retained by the people. In a State’s constitution, the opposite characteristic existed; that is, all power to regulate its people is granted to the State except those rights expressly retained in its constitution. This is why the States had and have a reservation of rights clause in their constitutions.

Thus, many Federalists argued in 1787 that a Bill of Rights (i.e. reservation of rights) in the federal Constitution would be superfluous; that is, it is unnecessary to limit powers that the federal government does not have in the Articles. Some Federalists argued that a Bill of Rights would even be dangerous to the Constitution because it would open the door to interpreting the federal constitution the way courts interpret state constitutions: whatever is not reserved to the people is granted to the federal government, flipping the nature of the Constitution on its head.

Still, the States felt that, despite the Constitution’s “original intent” (as presented by the Federalists), the federal government would not obey the Constitution. Sound familiar? So, the States proposed that the Constitution be amended to provide extra protection. Unlike Article V opponents today, the 1787 States believed that—even with the fear that the federal government would usurp its authority—the Amendments should and must be added.

The States knew what the Law of Nations teaches: that Amendments to a Constitution serve to perfect it, provide judicial remedies to enforce their rights, assert their political will upon the government, and provide a basis for any future actions necessary to correct government abuse. This is what they did; and as we know, Congress proposed and the States ratified what we call the Bill of Rights.

What candid observer would argue that those amendments have not substantially curtailed the government’s intrusion of our individual rights for over two centuries?—despite whatever evil machinations may have existed within the federal government. Therefore, contrary to the typical allegation that the federal government “ignores the Constitution,” the evidence shows that the Amendments have had a greater effect on limiting the federal government than the original Constitution.

This should lead the cool and candid citizen to conclude that the best way to limit the federal government’s powers enumerated in Articles I, II and III is through Amendment. The 1787 generation did it, and look how Americans have benefited for over 200 years. Yet, Article V opponents today deny this same benefit to our posterity. And instead of educating Americans on how we can provide liberty’s protection to our posterity, Article V opponents demonize Article V proponents as if they are trying to deny liberty to all of us. Article V opponents are wrong, and proponents of Republicanism and Federalism should quit placating the utter falsity of their logic and claims.

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