When we contemplate the full array of ways the U.S. and state constitutions are being violated today, the way to correcting the violations and bringing government officials and agents into strict compliance is daunting. However, our forefathers foresaw this situation and provided us with the tools we need.
Many imagine the solution to be to replace officials with strict constructionists. While that might work in the long run, let's look at the numbers. We could replace all the members of the House of Representatives in two years, the President and Vice-president in four, and all the members of the Senate in six. But members of the federal bench serve for life. It would take at least twenty years to replace all of them, and as long to replace most of the members of the bureaucracy. Even if we could repeal all unconstitutional legislation, it would be opposed by "reliance interests" with a stake in the ways things are, and until more than 200 adverse court precedents could be overturned, all the government activities that are based on those precedents would persist, with the agents saying, "But the courts have held ...".
We also also a problem of where are we going to get all the qualified replacements that are strict constructionists? The schools aren't turning out enough. It would take at least another generation to change the culture of the educational process to accomplish that.This list of Supreme Court Milestones contains over 100 key precedents that need to be overcome. Any amendment strategy needs to address each of them.
The reality is that it is those court precedents as much as any legislation that enable the usurpations. Legislation comes and goes, but precedents persist until they are overturned by later court decisions or by amendments. And it is not just the initial precedents in a chain, but all the ones that are built on it.
Assuming we could replace all the members of the U.S. Supreme Court and the Circuit Courts of Appeals, how long would it take to overturn all those adverse precedents by litigation? There are more than 200 not counting the many that are piled on the first in each chain. With our present judicial legacy, not more than about half of them would ever be challenged at the trial level, to preserve a basis for appeal. The Supreme Court only takes about 80 cases a year (out of 8000 applications). Optimistically, we could only expect about one such case to reach the Supreme Court every two years, so it would take a Court of nine at least 200 years to overturn the adverse precedents accumulated over the past 200 years. If, as has been proposed, the size of the Court were increased to 28, the number of cases they could hear could be tripled, but that would still be at least 67 years. What are the odds of maintaining a Court of strict constructionists throughout that period?
Realistically, about the only way short of revolution to correct usurpations that are anchored by entrenched judicial precedents is amendments to the Constitution. They don't have to bring changes to original meaning and understanding. They can just be clarifying amendments. The Bill of Rights (except for the $20 rule of the 7th Amendment) and the Reconstruction Amendments (except for the enforcement clauses) were clarifying amendments, in that they were intended to return understanding to what it was originally supposed to be before the courts went astray.
The way it can be done is discussed in State Calls for An Article Five Convention: Mobilization and Interpretation, by Gerard Magliocca. The strategy here set forth is based on his analysis.
The following are the steps to be taken:
For groups not yet willing to advance the statements as amendments, they can advance them as position statements, demanding compliance with them as correct understandings of the Constitution. See template.
It is important to realize that it may not be necessary to actually get the amendments ratified for them to drive the reforms sought. The Equal Rights Amendment provides a good example of how this can occur. The pressure to get them ratified may bring about reforms in legislation and the courts before ratification occurs, making it unnecessary, although actual ratification would help entrench the reforms. It is important, however, to sincerely seek ratification. Supporters in Congress and the legislatures aren't going to support either the amendments or the reforms if we don't commit to following through. They want to stay in office, and to go with us we have to be willing and able to support them for doing so.
The specter of a "runaway" constitutional convention is often raised, both by opponents of reform and proponents using it to scare Congress into proposing amendments themselves. This is discussed in the Magliocca paper linked above. He mainly discusses petitions for an Article V convention, pointing out that any proposals they might make would still have to be ratified by 3/4 of the states.
Perhaps the greatest hazard is that such a convention could propose an entirely new constitution with a new method of ratifying it. After all, that was done by the Philadelphia Convention of 1787, which changed the method of ratifying amendments to the Articles of Confederation from a unanimous vote of all states to ratification by nine of them, for the proposed new constitution. Suppose the new constitution from the new convention provided that it would be ratified if a majority of U.S. residents (not just citizens) voted for it in a popular referendum. Now suppose the new constitution contained clauses that would, for example, guarantee every adult resident of the U.S. an income of $60,000 a year (as has been proposed by Yale law professor Bruce Ackerman), a free house, and a free luxury car. Does anyone imagine there would not be a majority vote for that? Now suppose the referendum were actually held, and the new constitution adopted by that process. How far would anyone get trying to resist it because it was not adopted according to the procedure specified in Article V of the present constitution?
There are some well-funded groups that would try to hijack such a convention, and might succeed. They might also hijack enough of the state legislatures if the amendment were submitted to them for ratification. Spread enough money around and most state legislators can be bought.
How would Congress propose an Article V constitutional convention be held? There are many ways, but we can be sure they would not just throw it open for anyone to attend. They might use the model of national party conventions, in which precinct conventions elect delegates to a county convention, which then elects delegates to a district convention, which then elects delegates to a state convention, which then elects delegates to a national convention. Imagine a merged convention of Republicans and Democrats. The closest function of such conventions to a constitutional convention would be their platform committees. Anyone who has worked on the platform committee of a major party will recognize the product is unlikely to be of high quality, that might be ratified by the states.
More likely Congress would just have either the governor or legislature of each state send 3-5 delegates from each state.
Realistically, there is no way Congress would ever call a constitutional convention. They hate the idea. Even if enough states demanded it, the most Congress would do is propose an amendment to the states on the subject for which the call was made. That process, however, is every bit as dangerous as a constitutional convention. More so, because it is more likely the product of Congress would be well-received by the state legislatures contemplating ratification. The way to avoid either a bad proposal from a constitutional convention or from Congress is for people to propose through the state legislatures amendments that are all identical and carry our reforms rather than changes our adversaries might compose.
Our adversaries are loath to propose amendments. Their advantage lies is quiet usurpation. If they proposed amendments to allow them to do what they are now doing without authority, they risk having those amendments rejected and with them the sweet little racket that the rejection would expose as such. That gives us a natural advantage if we unite behind specific language for how we want the Constitution interpreted. Nothing else we can do will work to bring government back into compliance with the Constitution as originally meant and understood. Everything else, even complete replacement of every official with strict constructionists, would not work. We have to reverse the more than 200 court precedents on which the usurpations are based, and it would take more than 200 years to do that, even if we could keep nothing but strict constructionists on the Supreme Court for that entire period.
Congress won't call a constitutional convention if we don't have
the state legislatures petition for them to do so, but instead
petition for Congress to propose back to all the states what a few
states are proposing to Congress. Magliocca discusses petitions to
call a constitutional convention used as a threat. I have a quite
different strategy. Of course, Congress might be concerned that if
they don't adopt the proposals and send them to all the states,
the states that are calling for Congress to propose them will next
call for a constitutional convention. But that is not what the
first states would be doing. They would only be letting Congress
worry about what their next step might be.
It has been pointed out that once a convention is called, a
majority may vote to suspend the rules and take up anything it
wants, including very different amendments.
My proposal essentially calls a convention of the 50 state legislatures meeting separately. No reason a convention cannot convene in that way, essentially as 50 subconventions, each with a rule for what it may consider, but with amendments already drafted, so that all they can do is vote them up or down. The result would be identical proposals which would represent the resolution of the combined constitutional convention, which would then be sent back to the states for ratification. It's a little tricky, but it could be made to work.
No one should imagine this process will be easy. Still, we have seen an effort led by a single individual, Gregory Watson of Austin, Texas, to revive and get ratified as the 27th Amendment, which was originally proposed in 1789 along with the Bill of Rights. It is worth studying how he did that.
It is not difficult to get legislation adopted if there is no opposition to it. Especially by a state legislature. In many cases a single constituent can get a friendly legislator to introduce something, and if there is no opposition, get it passed. A state resolution asking Congress to do something is not likely to have opposition. It costs nothing, and changes nothing, especially if it is not a call for a constitutional convention. So the second step of the strategy is not difficult.
The second step is more difficult, and could encounter some opposition. The key is to have identical proposals from more than 2/3 of the state legislatures, enough to call a dreaded constitutional convention. The argument could then be used that if Congress doesn't propose the identical amendment to be states for ratification, then calls for an Article V convention would be the next step.
The third step is where large numbers of determined voters would need to be mobilized. It doesn't have to be a majority. Most amendments have been ratified with the support of determined minorities in each of 3/4 of the states. The key is to avoid provoking strong opposition, and the best way to do that is with amendments that potential opponents don't easily recognize as threats to their interests. The amendments proposed here are worded to minimize that risk.
Other proposals to rein in government officials would require not just majorities of the voters, but fervent supermajorities, sustained over generations. We do need to change the political culture in the direction of strict constitutional compliance, but the process of pushing for these amendments can do that, even if they are not ratified. All it takes is a determined minority that is focused on the goal.