Don’t Listen to the Pessimistic Naysayers thomas.barclay September 26, 2013 Michael Farris The liberal elites’ greatest friends in Washington, D.C., are professing conservatives who attack the Founding Fathers’ solution to a tyrannical federal government. These conservative critics may think they are attacking Mark Levin or other Article V advocates, but they’re really attacking George Mason and the other champions of freedom who insisted that the Constitution contain a method for the states to stop the federal government’s inevitable power grabs. Let’s look at their arguments and see them for what they really are. Naysayer Argument #1 “The current government does not uphold the current constitution, why would they suddenly grow a conscience with another amendment?” This question is more rhetorical. It’s a question that actually asks us to abandon the Constitution altogether. After all, the naysayers contend, the Constitution is being disobeyed, so there’s no way to make them obey it. Of course, critics cannot have it both ways. They cannot claim to be constitutional conservatives, and yet say it is impossible to achieve constitutional government. Washington, D.C., uses the Constitution but has abused the power it has been granted. It claims to adhere to the Constitution but has gone far beyond its enumerated powers. The Commerce Clause and the General Welfare Clause account for the vast majority of constitutional encroachments by the federal government. Consider the wording of the current clauses and possible clarifying amendments that would seek to stop these abuses. The current Commerce Clause says that Congress may legislate “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” They have twisted this to mean that Congress can regulate anything that has a significant impact on our national economy. While such an interpretation is clearly not what the Framers intended, it is easy to see that reasonable people could read that expansive meaning into this phrasing. A proposed fix to this problem that I have drafted would read like this: “The power of Congress under the Interstate Commerce Clause is restricted to the regulation of shipping and transportation across state lines. Congress has no authority to regulate any matter on the basis that it affects interstate commerce.” Congress currently regulates everything economic in our country under the Commerce Clause. When the ambiguous term “commerce” is switched to “shipping and transportation” the power of Congress is dramatically curtailed. Neither Congress nor the Supreme Court could pretend to be in compliance with the Constitution if they tried to regulate minimum wages for babysitters under my proposed language. There is a huge difference, politically and legally, between pretending to be in compliance with the Constitution and being in open defiance. The same thing is true of the General Welfare Clause. It currently reads: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.” Congress and the Supreme Court contend that this language gives Congress an independent power to tax and spend for anything they believe is for the general welfare of the country. It takes several pages of historical analysis to show how wrong they are by this assertion, but – again – the language itself is broad enough to allow Washington, D.C., to pretend its current approach is authorized by the Constitution. My proposed solution reads as follows: “Congress shall have no jurisdiction to expend funds for any purpose that is not in direct furtherance of one of its enumerated powers. The General Welfare Clause is not such a grant of power but an additional limitation on all spending by Congress to prohibit favoritism in spending. The General Welfare Clause shall not be construed to grant power to tax or spend money for any purpose that is also within the jurisdictional competence of the states.” Obamacare was justified under the General Welfare Clause. There is no way John Roberts could have ruled for Obamacare if my language was in place. In fact, even Elena Kagan could not rule for Obamacare if my version of the General Welfare Clause was in place. Ambiguity helps continue the pretense that Washington, D.C., is in compliance with the Constitution. Naysayers could contend, however, that even my clear language will be misconstrued by the Supreme Court. While I don’t think so, there is a way to be sure that the Supreme Court’s multiple abuses come to an end. Here is my idea: The Supreme Court shall consist of fifty justices. Each state shall, in a manner of its own choosing, appoint one justice to the Court. Each justice shall serve one term of five years and shall be permanently ineligible for reappointment. There would need to be some specific language to provide for the idea that ten states would appoint their justices each year in the five year cycle so that there would be proper continuity and to provide a date certain when the current justices are required to vacate their offices. The biggest problem with a lack of constitutional compliance in Washington, D.C., is found in the Supreme Court. If Washington, D.C., loses control of the appointment of the Supreme Court, that institution will stop the relentless expansion of the federal power. Mark Levin has an alternative method of curbing the abuse by the Supreme Court. A convention might adopt his version or mine or a third choice. What is important to know is that the Convention of States has the clear capacity to ensure that proper checks and balances are placed on the federal judiciary. The Constitution can clearly prevail more often when the power of the judiciary is properly balanced. So let’s make a deal. Let’s stop paying attention to pessimistic bloggers with no particular track records, and instead listen to people with clear records of fidelity to the Constitution and of successful advocacy. Mark Levin and I stand together to endorse the solution given to us by the Founders, who believed a proper structure is essential to liberty. We can achieve that structure. We can stop the runaway power of Washington, D.C., if we’re willing to use the Constitution’s own solution. The alternative posited by naysayers is to give up on the Constitution. To that, I say, “Nay, nay.” Michael Farris is a constitutional lawyer and activist who (among many other things) spearheaded the defeat of a UN treaty in the US Senate in December 2012.