Somewhere in the middle of the 20th Century, an idea hatched that it was no longer the Supreme Court’s role to interpret what our Founding Fathers had meant, it was the Court’s purpose to evolve it. They evolved the ever living hell out of it. We are now a relatively lawless nation, preserved only by a general understanding to cooperate, and that understanding hangs by a thread.
Lawless? Isn’t that a bit extreme, Todd?
Let’s examine the situation. Currently, and entirely thanks to the election of Donald Trump, we have at least an even split on the Supreme Court between judges who want to preserve the Constitution and those scrambling to find new unwritten rights and guarantees. Justice Kennedy likes to be a swinger. If we had left things to Establishment republicans in the 2016 election, we would have had an open Constitution limited only by what crazy new thing could be brought before the Progressive majority on the Court, and those rulings would have lasted long enough to create the essence of permanency that already surrounds ludicrous decisions like Roe v. Wade.
Liberal justices have “discovered” rights to abortion and gay marriage in the Constitution, things obviously never contemplated by the creators of the document. They also conferred upon themselves the power to bus children from one school district to another and, in doing so, effectively destroyed some of our inner cities when white and black families of means fled that particular tyranny. If judges have the capacity to impose their worldviews through judicial interpretation, through rephrasing language into laws that were never written and certainly never intended by any law-making authority, then what is the limit on that? If the standard for constitutional interpretation is the norms of an evolving society, what is the point of a Constitution?
A government that is not bound by its founding document exists in a fundamental state of lawlessness. Consider President Trump’s travel ban. There is no question that the president, any president, has the power to put temporary limits on immigration. Progressive judges halted the travel ban citing things Trump had said about a Muslim ban as a candidate. It is not within their jurisdiction to make this determination under the Constitution – the motivations of a President are political questions to be judged by voters.
Trump’s response to this constitutional crisis could have been to order the military to enforce his ban despite the orders of the lower court judges. That would have been interesting but certainly not desirable and it likely was never seriously considered. A question though: When the roles are reversed, will Progressives show this restraint? In the probable scenario where modern Progressives regain the White House someday and there is a conservative judiciary blocking an unconstitutional order, what will be the limit on such action if the Constitution doesn’t mean exactly what it says? Do you trust self-restraint in modern Progressives?
That is the problem for Conservatives – we are bound by not only the Constitution but by a sense of decorum and the desire for proceeding on a path that benefits the country. Progressives, who find any literal interpretation of the Constitution to be anachronistic, care little if at all about the maintenance of our founding principles and desire socialism anyway. They are free to proceed how they please.
But Conservatives have gained a critical level of majorities in most states which can largely be credited to the presidency of Barrack Obama. There are 32 republican state legislatures and 33 republican governors at the time of this writing. Even where these politicians have become part of the Establishment, the bases that elected them are Conservative. The democrats consistently lost ground in every national, state, and local election during Obama’s eight years. The rise of local Conservatism happened because Obama seemed like such a great guy and was able to push through Progressive policies on his charm even when only a minority really wanted them. Then we got a chance to see where it all went.
Obamacare ruined health insurance for the working class. The national debt went through the roof in the first year of his presidency and then went through the stratosphere over the next seven. The world caught fire. We were on our way to making girls’ bathrooms open to any and all child molesters to whom a simple claim of sexual confusion was availed. We were headed toward the very chaos that the Constitution was designed to prevent and that only a dictator and military order could get back under control.
Then, worst of all for Progressives, the uncommitted part of the country got to see how their base handles defeat, and it has been an awe-inspiring spectacle. The media is all in and exposed, totally discredited as a source for information. By explicitly taking up the Progressive cause, it might retain its true disciples, sure, but it will gain few new converts. It is now identified with people marching in the streets to support a thug’s right to attack a police officer, which is the founding event of the Black Lives Matter movement, or to protest the choice of half the country in a national election as if those people’s votes should never have mattered.
There are no Progressive ideas anymore, only wild protests. There is no reason that the Conservative trend out in the states where voters are less influenced by the media in their decision making won’t continue.
President Trump is not an ideological Conservative, but the pragmatic populist movement he leads could open a narrow path to begin a restoration. But don’t be fooled. Even if Conservative-leaning republicans hold a majority in Washington for a time, it will swing the other way again someday. The electorate gets bored. Even when things are at their best, there is no proof that they couldn’t be made even better if we just took more from the rich and the working class and spread it around. That idea is never going to leave us. The genius of the Constitution is that it anticipated this. The treachery of Progressives is that, through judicial interpretation, they have found a back door, and they will regain power someday. Maybe not in the next election or two, but it will happen and there better be something in place to restrain them.
The time to act is now, while the front door is open.
Normal law-making won’t be enough. Any law passed in Congress or any executive order issued by the president can be undone in quick order by a subsequent ruling class. It will take three constitutional amendments – three written laws that are unambiguous, one of them clearing up all ambiguity.
Constitutional amendments are an anomaly these days, something the country did before the Justices took over. I’ll concede at the outset that none of these proposed amendments have a chance in Washington, not even if republicans control a three-quarters majority in both houses of Congress. Really, not even if they control a 90% majority in Congress – they are mostly Establishment republicans after all. But in the current political climate out here in the states, there is another way.
As an introduction to what follows, Matt Huffman is an Ohio State Senator from nearby Lima. In 2015, Huffman was out of office due to term limits after time in the Ohio House but was working behind the scenes toward generating a Constitutional Convention for the purpose of passing a Balanced Budget Amendment. He spoke at one of our local Republican events in early 2015 leading to this column.
THE RETURN OF THE STATES (February 13, 2015)
Article V of the United States Constitution: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof . ..”
The federal government is never going to solve its debt problem. It doesn’t even intend to. The hard-fought-for sequester that took effect in 2013 cut federal spending in that year by $85.3 billion. In that same year, the government still ran a $680 billion deficit. In 2014, we went another $483 billion into debt. In two years of alleged austerity, we accumulated a trillion dollars of new debt. Welcome to the new normal.
When it was signed into law in 2011, the argument against the Sequester was that we didn’t want to make spending cuts in a weak economy. Last week, President Obama suggested we should ease the Sequester in the coming year as, with the economy picking up, there is no need for such austerity. Congressional republicans talk a lot about the need for spending cuts – except those that would affect their own districts. Round and round we go.
Fortunately, our Founding Fathers were wise men. Don’t try to make their intent a point in a political conversation anymore, though. We’re far beyond that in our national dialogue. The people who don’t agree with what the Founders meant also don’t care what they meant, and the silent disinterested majority winces at a James Madison reference. In the Constitution, however, all such people were foreseen, and that was the real wisdom.
Our Constitution serves two main purposes: First to create a federal government and second to limit that federal government. At the time, the states, meaning the people and their local governments, were concerned about maintaining their own autonomy. The Tenth Amendment, leaving the states all powers not explicitly granted to the federal government, wasn’t a throw-in to make the Bill of Rights a nice round number. It was a demand without which the states, meaning the people, would not have consented to a federal government.
But the Tenth Amendment can be overridden by activist federal courts. That last sentence pretty much sums up the last sixty years of Supreme Court jurisprudence.
Article V is the final line of defense against what has happened and is happening. It allows the states, through their own legislatures, to call a national convention to amend the Constitution. If former Ohio Rep. Matt Huffman of Lima and his allies in our state’s government are successful, an Article V convention is on its way.
Huffman, who is now back in his private law practice after serving his allotted terms in the Ohio House, sponsored a successful initiative while in office for the Ohio General Assembly to call for a constitutional convention. The purpose behind the convention would be to pass a Balanced Budget Amendment to the Constitution. Despite being term-limited off the Columbus scene for now, Huffman is still a lead sponsor of the project.
That initiative now has the support of 24 states. Two-thirds of the states, or 34, must call for a convention for it to be held. Ohio’s Governor John Kasich could be found in recent weeks touring some western states trying to drum up support. Once called, a convention can propose an amendment to the constitution and present it to all the states. If three-fourths, or 38 states, approve the amendment through their legislatures, then the Constitution is amended.
Although a convention of the states has never amended the constitution, Huffman is quick to point out that several times in the past, when momentum for a convention has gathered, Congress has been forced to take some initiative itself and get legislation accomplished. The income tax, the repeal of prohibition, and the direct election of senators all were constitutional amendments that resulted in part by pressure from the possibility of an Article V convention.
States’ Rights have hovered on the backburner of political debate for the last few decades. The doctrine took a moral shellacking when it was used to defend first slavery, and then Jim Crow. Everything good about state government and local control got thrown aside based on laws that intended to fix only these problems. Now, the federal government is involved in most decisions in our lives, including how our children are educated and where we get health care. The only reason it doesn’t make every decision for us is that it hasn’t found a way to yet, but it’s looking. States, save California, have never made such presumptions.
The federal government is crippling its population for the following century with debt. The numbers are too big to seem real, which is kind of how they are successfully ignored in Washington. If we always had a balanced budget and suddenly came up a half trillion short one year, it would be a scandal. In your personal life, if you get a bill for a thousand dollars it’s painful because you can eventually pay it. If you get a bill for a million dollars, it’s a joke because you can’t.
Critics worry that such a convention could roll out of control in amending our fundamental document. [As if the Supreme Court hasn’t!] With the requirement of the approval of three-quarters of states compared to the two-thirds of Congress, it’s hard to see how such shenanigans could develop.
As the idea gains steam, you’ll begin to hear criticism. Listen carefully. You will find the echoes of Washington politicians and lobbyists [the Establishment], both of whom only want the game to stay the same. If anyone saves us from these people, it will be the states.
The Senate proposed a Balanced Budget Amendment just last year but I’ll make a bold prediction: Congress will never pass a Balanced Budget Amendment. They also will never do anything to get control of the deficit. The House’s Freedom Caucus would, but everyone saw how they were marginalized in the original attempt at health care reform simply for acting like Conservatives.
The only way to get the Balanced Budget Amendment is through the process described above – a Constitutional Convention of the States. Back in 2015, they needed only a few more states to sing on. What this movement lacks is a voice in Washington. The Establishment fears an Article V convention in the same way it fears Donald Trump. But what if someone in Washington is calling for this and creating a caucus for its support? It is difficult for states to create a national movement because they are states, but even states that might trend liberal can be persuaded that what we are doing to future generations is a tragedy.
As pointed out toward the end of the above column, pundits will argue that once a Constitutional Convention is called, there is no end to the changes that can be made. I say, fabulous! It takes three-fourths to ratify, so it’s unlikely that we’ll declare a king or abolish the prohibition of cruel and unusual punishment. Almost certainly what will happen will be a reigning in of Washington, which is really what such pundits fear and is also why Article V is in the Constitution.
I would not submit any of the amendments I’m proposing in this chapter to Congress. That would be a total waste of time and effort. But I would submit them to the individual members of Congress and ask them to support a Constitutional Convention of the States. If they tell me they won’t support such a thing, I will ask why. Then I will tell everyone else in the country why in a column such as the ones included in this book. I can’t wait for an Establishment politician to tell me that their state can’t be trusted with such power.
Washington possesses the power that the States don’t – the power to create and lead national movements. But States have the power to do what Washington never will – amend the Constitution to get control of the budget. And once the convention is called, there just might be enough Conservative furor, and for just this limited period of time in American history, to get an amendment clarifying the limits of the Constitution and returning to the States the rights and powers they were intended to have.
I wrote the following column over eight years ago and it is as true now as it was then. Much of the Progressive damage to the country has been done by pretending words don’t mean what they say. The second of my proposed amendments is to limit of the meaning of the Constitution to its express language.
THIS IS THE END (OF TYRANNY) (October 23, 2008)
“Each State shall have the exclusive right to legislate concerning abortion, drug enforcement, education, religion, and any other area not expressly granted to the jurisdiction of Congress and no right shall ever be implied where not expressly stated in the Constitution.” – as yet to be proposed 28th Amendment to the United States Constitution.
And why not? States have this power to vote themselves more power. As Conservatives coalesce into the nebulous Tea Party Movement, shouldn’t this amendment be the ultimate goal?
Despite the exponential growth of the federal government’s role in our lives ever since, 1933 saw the last substantive change to the Constitution – the 21st Amendment’s repeal of Prohibition. Judicial activism has made constitutional amendments unnecessary, but think of this: Federal judges can’t interpret laws that Congress is constitutionally barred from making.
Two-thirds of the states are needed to propose a constitutional amendment and three-fourths are needed to ratify. This means that the banding together of 38 states could immediately end the growth of the federal government and the tyranny of judicial lawmaking.
Far-fetched? Not if Conservatives learn to utilize a latent power source. Consider the 2008 election: California held more electoral votes than Alaska, Arizona, Utah, Montana, Idaho, Wyoming, North Dakota, South Dakota, Iowa, Nebraska, Kansas, and Oklahoma (all going for McCain) combined, 55 to 52. However, in the one state/one vote scenario of constitutional amendment, the liberal edge in these states switches to a 12 to 1 conservative landslide.
Now think locally: Consider your public school. That school likely had a Bible class for elementary students for decades – basically since it became a school. Then one day, a disgruntled soul decides to end that tradition, not by seeking popular redress to the school board or the community, but through threats to resort to the ACLU.
Such tyranny is not possible with the above amendment – the community actually is able to decide what it wants. In a free society, if you don’t like a school, you can move or open-enroll to one of your choosing, petition the board to change its curriculum, or have your kid get used to standing against the tide – trust me, that skill is going to be essential in a life where such stances are taken.
The Constitution, by the way, literally says nothing about religion in schools. The First Amendment says simply that Congress, the federal government, shall not establish a religion. At your local school, it hadn’t. In fact, the First Amendment was meant to protect state institutions (i.e. schools) from the feds and proposed to help convince North Carolina and Rhode Island to join the Union. (George Washington took office presiding over eleven states, not thirteen.)
This all flipped from state protection into state coercion through the 14th Amendment. Intended to protect newly freed slaves, that amendment imposed the guarantees found in the Bill of Rights on the conquered Confederacy and all other states in the process. After years of judicial wisdom in applying this amendment and redrafting the Constitution, tradition is virtually illegal. The goal is diversity, so long as it is someone else’s.
School Bible classes are just an example, it’s really every issue. Think abortion: You want it illegal in Ohio, have a say locally instead of competing with liberal media behemoths. Even California could have its way with the above amendment, allowing abortions up to age three, perhaps, and creating a commission and associated bureaucracy to make such determinations – a veritable liberal utopia.
As things swings back Conservative (see the 2009 gubernatorial elections in Virginia and New Jersey) and before the next inevitable republican failure, shouldn’t this amendment be the goal?
I wrote a column in 2017 echoing a theme here that prohibiting Bible classes in schools is not in the Constitution. That piece is included later in this book. Funny thing – when that one was in the paper, the gentleman who got Bible classes banned in my local school took out a full page ad in the newspaper blasting my ignorance. Although I never mentioned his name in either column, he claimed I was attacking his family by simply stating what had happened and proceeded to lecture the community about the wisdom of judicial activism. Progressives store rage for a long, long time – eight years in this case.
Otherwise, there is nothing funny about this proposal. The great Antonin Scalia always argued that the Constitution should be interpreted not only by its plain language, but further, by the plain language as that language was understood at the time it was drafted. The meaning of words may change slightly over time, so what the words meant to the people who made the law is what matters. If there is any ambiguity at all, a new law should be passed or the default should be the plain writing of the law as it was understood at the time it was passed. Essentially, this is what law should be. Really, it is the only thing law can be.
This would be the toughest of the three amendments because there would be no hiding what it means. The overturning of Roe v. Wade wouldn’t have support of three-quarters of the electorate. But making it a local decision along with the possibility of returning control of school curriculum to local school boards, among other issues, just might get past that threshold of states at an Article V convention. It would certainly take a national movement outside of Washington, although such a movement would likely have to originate there.
To promote both of these, I would further promote the amendment that I believe would be a sure thing in a Constitutional Convention – term limits. Term limits are a tricky item. A Gallup survey in 2013 reported in the National Review found that 75% of Americans support term limits. Yet, incumbents are difficult to unseat. It’s not our jerk, it’s yours, goes the theory. If Congress is infinitely unlikely to pass a Balanced Budget Amendment, its passing of term limits is whatever a step beyond infinite is.
TERM LIMITS (unpublished)
The political campaign that ended with the election of President Trump exposed the absolute necessity for term limits in Congress. Counter to popular opinion, I had always been someone who saw some merit in not having term limits because: 1. I believed with term limits, only the very wealthy or the very old could run for office because the rest of us are too busy with our careers and supporting our families to go down that path – there needs to be some possibility of a career in politics to draw good candidates; and, 2. I believed that an electorate has a right to send whoever it wants to represent it no matter how many times he or she has been there before.
I have since changed my mind.
The arguments above have proved small in the scope of things. For Conservatives, when the Establishment republicans deserted their candidate in the general election, the depth of self-serving instincts in career politicians became evident and then some. Not because of the non-support of Trump necessarily, but because of what the alternative to Trump meant. He might have been an imperfect candidate, but he was the only Conservative choice, the Libertarian and Constitutional Party candidates having never achieved viability.
The alternative was Hillary Clinton. I’ll say that again because Establishment republicans pretended that this wasn’t true: The only other choice was Hillary Clinton! By gosh, I still don’t feel like I’ve emphasized that enough: THE ONLY OTHER CHOICE WAS HILLARY CLINTON!!!!!!!!!!!!!!
The time to beat Trump, if that was the desired outcome, was in the primary. Once he became the republican candidate and Clinton became the democratic candidate, there was no choice to be made if you cared about the future of the country. He may have been unpredictable, but Clinton was not. Had she been elected, the loss of the Constitution through the Supreme Court would have been guaranteed and would there have been any greater tragedy in the history of our country? In the damage this would have done to the American story, it would have been on a par with losing World War II, only it would have been more permanent.
Establishment republicans didn’t care despite the things they had been telling their constituents for the previous eight years. They had told us that the Constitution is what mattered, that Conservatism and traditional America was what they were fighting for and this is how they got elected. It would be different if they had promised their bases to be moderate while in office. When it came time to act, their careers took precedence.
Establishment Bob Latta is Exhibit A for term limits. I don’t know if he didn’t understand what was at stake or if he just couldn’t stomach the idea of jeopardizing his seat at the table by taking a stand. There were many like him, but he was ours – Northwest Ohio’s representative. He and his ilk fled the field when the fight came and were willing to lose the country to better ensure their careers.
But it wasn’t just the desertion of Trump – that’s just the event that fully exposed it. Establishment republicans likely all start their careers with the best of intentions. Then they become invisible to their electorate while in Washington. They become unaccountable. It is easy to slip into the murkiness of that swamp – apparently too easy. If there were a rotation, then politicians sent to Congress would have to be what they promise their constituents they will be. The longer any republican is in Washington, the less they seem fight for any Conservative cause. A person smarter than me would likely be able to write an algorithm to predict this phenomenon.
This is the analysis from the Conservative side of the argument for term limits, but the existence of career politicians is even more detrimental to democrats, the party of confiscating and spending other people’s money. Democrats rarely break ranks anymore based on ideology because they have none, at least none they are willing to admit. They wait on the media to decide that for them. When your only real goal is to give away more money, imagine the control special interest groups can exercise over you.
Establishment democrats are mere pawns of the press, claiming moral outrage as a routine to increase campaign donations. New democrats would be less in the pocket of lobbyists and more transparent if there were a rotation and isn’t that what their Progressive base would prefer? Don’t they claim to demand righteousness in their elected officials?
The elected officials of both parties, over time, compile a longer and longer list of favors owed. Not just to special interests, but to each other. Chairmanships of committees are handed out as favors. Everything happens behind the scenes. There is rarely a threat to make them behave differently because they have so extremely gerrymandered their districts that serious challenges can only be made in primaries. The party Establishments, the ultimate pawns of special interests, control these primary elections.
But really, I don’t even need to make these arguments. At a Constitutional Convention of the States, term limits would be a slum dunk. Everyone sees this problem.
I used to believe it was too difficult for a qualified candidate in the middle of their own career to drop it and spend a year campaigning to challenge for a seat in Congress. And it hasn’t been easy for me to arrange a run. I’m not independently wealthy and I work to support my family. But I’ve realized that doing this is just as important for their future and the rest of the country’s because the Establishment, without term limits and without somebody to take the time to oppose it, is unstoppable. It is a world all its own, and that world is closed to us.
It has been proposed in the Senate that term limits should be set at two terms (twelve years) for senators and four terms (eight years) for representatives. That sounds fine to me, but, like the Balanced Budget Amendment, the Senate will never act on it. Do we really expect career politicians to vote themselves out of a job? This issue needs to go to the states were it will be promptly approved. And while we are there, we can talk about the Balanced Budget and Plain Language Amendments.
These are the three amendments I am proposing: The Balanced Budget Amendment, the Plain Language Amendment (or it could be called the State ReEmpowerment Amendment) and the Term Limits Amendment. I am proposing to do this outside of Washington in an Article V Constitutional Convention of the States. I am campaigning to be the voice in Washington calling for a caucus to support this convention. Most importantly, I want to expose from the inside every reason this is being prevented, who is preventing