Saturday, April 21, 2012

The Case for Amending the United States Constitution: An answer to Mark Levin

Mark Levin ended Ameritopia, his insightful study of the evolution of the American ideal, with questions about fixing the current state of American political affairs. He asks this about the shift in mindset of the American public from our original liberal rationalism to the empty beliefs in unworkable conscripted utopian fantasies: "The essential question is whether, in America, the people's psychology has been so successfully warped, the individual's spirit so thoroughly trounced, and the civil society's institutions so effectively overwhelmed that revival is [im]possible? Have too many among us already surrendered or been conquered?" He asks, "Are we capable of standing up to an oppressive government?"

I answer my brother in arms in part that we have been standing up to oppressive government since the Constitution went into operation in 1787, but to little effect.

The Civil War was one such fight. The Confederate States sent their children out to die by the hundreds of thousands, not so the parents could own some slaves. They fought the Federal government because they recognized that it was overreaching and destroying their freedom. They were fighting for freedom from government excess. They were willing to sacrifice their best in hopes of gaining freedom from oppressive government. (Yes, we all recognize the irony here.)

Jefferson documented the problem of Federal overreach in his Draft Declaration of Protest of Virginia, 1825 (, and in his draft of The Kentucky Resolutions of 1798 ( He stated generally the same things the Tea Party folks are saying today. Government was and still is skewing the meanings in the Constitution so it can violate the Constitution’s limits unchecked.

We have been fighting Federal overreach since our beginnings some 230 years ago. History and our state of affairs today are proof that our tactics have been ineffective. Despite our ongoing willingness to stand up to Federal overreach and despite our willingness even to fight to the death to deny it power over us, the Federal government is still overreaching. The source of the problem does not appear to be a failure to recognize oppression, nor is it an unwillingness to stand up and defend our rights. Some other force must be at work.

Most of today’s American citizens recognize that something is wrong with government, and we would fully and actively support a correction to the problem. We see the tens of trillions of dollars of government debt, and the amount of the debt we each owe, and the amount of debt our children owe on their birth. We go to work every day fearing we could lose our job and home due to an economy messed up by endless government intervention. We dread personal violation just to get on a plane at the airport. But before we can act, we must recognize the cause and the effect. Then we must have a clear and credible course to solving the problem. We must have a course that will not be a repeat of the same ineffective efforts used over the last 230 years. Calling to "throw the bums out" yet again will not work today, just as it has not worked in the past. That has not worked over the long run because the "bums" are not the problem. The primary cause of government excess can be found elsewhere, in a certain aspect of the structure of the contract that is the US Constitution.

When the original citizens joined with each other and created a new and experimental form of government, they inadvertently included in the Constitution a form of what is known in the legal world as an unconscionable contract. Such contracts are normally voided when brought to court, because they are inevitably sources of abuse

An unconscionable contract is one in which one party in a contract has an overpowering and unfair advantage in power over another party in the contract. This generally happens because one party has undue influence over the other, such as happens in a monopoly. Let's create an unconscionable contract between you and I, so you can see by example what I am referring to.

I am a used car salesman. For whatever reason, I am the only salesman you can buy from. You buy a car from me with a contract that states that I may extract funds from your bank account to cover installment payments for the car. The contract also states that I may make terms regarding your use of the car while you are making payments on it; you must have insurance before you can drive it, etc. The contract includes a clause saying that in case of apparent violation of the contract, I have the sole power of arbitration.

You need a car. You can't buy one anywhere else. You have to take my contract and live with it, or you can't have a car.

At this point the contract is unconscionable. The arbitrator has an obvious vested interest in the outcome of any decisions. I have way too much power over you. I decide that the price you paid was too low, and start taking more money from your account than we had agreed to. I decide to take the car from you on Sundays so I can drive it around, without your say-so. It isn't yours yet. You haven't paid for it.

What can you do about it? I have the sole power of arbitration in case of disagreements. You must take up your disagreement with me for resolution. Don't like it? Too bad. If you don't let me have my way, I've got guys working for me who will take your car away.

That characterizes the flaw in the US Constitution.

The Constitutional contract sets up two parties; the citizens, and the Federal government. The Federal government is effectively a monopoly. The contract gives government the ability to take money from us at will. It gives government the ability to make rules about our behavior. If we have differences with government, we can only take up the issue with government. Protest too much? Government has cops to throw you in jail and take your freedom away.

The theory of government at the time of the Framing was that the Judicial branch would be a neutral third party who would prevent the characteristic of an unconscionable contract. The Framers intended for the Court to be a neutral arbitrator in cases of apparent breaches of the contract. The theory was correct, certainly, but time has proved a flaw in the implementation. All of the known Federal violations of the rights of the people have been done with the Federal Court in place. Either the Court supports the violations, or the Court itself created the violation, or the process of asking the Court for arbitration has been insufficient. The Court is not neutral. It is a creation of the Legislature and Executive, so it reflects the character of those bodies. The Court does not actively police for violations. It only responds to complaints, and it tends to only hear from those with enough resources to counter the substantial resources of the Federal government.

Despite the many positive and good characteristics of our experiment in self-government-by-contract, the Constitution meets all of the technical criteria of an unconscionable contract both in its structure and in its effects. I suggest that much, perhaps most, of our governmental overreach stems from this fact.

Recall the summary of Publius' discussions on the inability of the balance of powers to keep government within its legal limits in Federalist No. 48: "The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands." The balance of powers will not save you from your government's oppression, he said. Something else is required.

In No. 49 Publius enlightens us: "But it is the reason, alone, of the public, that ought to control and regulate the government." Liberty depends on the ability of the citizens to keep their government within rational and moral limits; within "the Laws of Nature and of Nature's God" in other words. Without a proper check on government, we eventually become serfs to government.

Isabel Paterson described in her brilliant political book The God of the Machine (available as a free download on, how a machine without a braking system must eventually destroy itself, like a car with no brakes would be a rolling disaster. In successful government, she writes, the citizens have effective power of veto over government actions. The US Constitution lacks an effective mechanism to allow the citizens to apply the brake to government.

To fix the problems we have been having over the last 230 years, we must address the problem, not in ways that have been tried repeatedly, and proven ineffective over time. Effective reform will address the deeper cause of the overreach. To reform government means literally that we must change the structure of government. To change the structure of our government, the contract must be changed.

The Framers understood that their design was not perfect, so they provided not just one, but two tools to change the contract when flaws became apparent. Congress can begin the amendment process, and so can the State legislatures. An attempt at amendment organized and executed by Federal politicians would be a disaster. That would be putting the robbers in charge of designing a bank's security system. This amendment is an action is to protect the citizens from the Federal lawmakers, not to give abusive lawmakers more power over us. An Article V States’ Convention is called for.

Some people have concerns about the implications of an Article V States' Convention. The Goldwater Institute has an excellent and well researched three part series addressing the topic. Anyone with concerns about the realities of a States' Convention would be advised to start here ( before digging through Google or the Wikepedia.

An Article V Convention would address the unconscionable characteristic of the otherwise good contract. We need an amendment, or amendments, to create a neutral third party to act as arbitrator of the Constitutional contract. The amendment would probably split the Federal Court in two, with one court acting as arbitrator between the Federal government, and the States and their citizens; and a second court acting as arbitrator between the States and their citizens. A police power would probably have to be added to the neutral party to actively look for infractions, instead of waiting passively for someone with enough resources to file suit. The judicial and policing power would be almost all negative powers, like the powers of a referee in a football game. The referee does not advance the game. He only judges and enforces the limits. An arbitrator with positive powers, such as the powers of law making or extraction of money from the citizens, would be an expansion of government, not a limiter of government. Given positive powers, the arbitrator would become a liability, not an asset.

The chief arbitrator would be an employee of the citizens, unlike the members of the Federal Court today who are employees of the government. The citizens would define how the arbitrator performs their job. The citizens would have the power to remove the office holder from office at any time. The citizens would finance the office directly and set pay rates directly. Through this office we would finally have an effective brake on government. We would finally have our power of veto over the overreaching actions of the Federal government.

An Article V Convention would need a champion with the skills to bring it together and make it happen. Such a person would be someone who understands and believes in good process, who has skills to reach out to others, and who recognizes the importance of correcting the obvious structural weakness in the Constitution.

The case for the Convention would have to be well prepared and then presented to the various State legislatures. The general intents and requirements of the amendment would have to be clearly written out and documented so the States would have a standard to apply when voting yes or no . Credible timelines and processes for putting the amendment in place would have to be detailed before the amendment was finalized. You cannot suddenly change the structure of a large body overnight, because doing so would tear the body apart. The Application of the Convention must provide enough clear language so that Congress would find it difficult to stray from the general design of the amendment, perhaps it would include a rough draft of the amendment. Before this process could begin, all of these things and more would have to be hammered out for presentation to the State legislatures.

So, to answer Levin's question more directly: The American people do still care enough about themselves and their children to want to address the problem of excessive government, and we will do so if given a credible and clear direction. But I am concerned in part because many people fight necessary change out of fear. And I am concerned in part because so few of us recognize the primary cause of the problem is not the people in government, but the structure of government. Blaming, finger pointing and factionalizing are easy, but never solve the problem. Considering drastic changes in the structure of government is hard, but necessary, and for some people, upsetting. This is what the Founding Fathers went through 230-plus years ago when ending the oppression of Great Britain and when drafting the Constitution. Our struggle is the continuation of their struggle. Just as they had to consider serious and drastic changes in the structure of government to end their oppression, so must we.

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