ARTICLE V AND THE IMPERIAL CONGRESS

Earlier this year, Rep. Thomas Massie (R-KY) was vilified for holding up the $2 trillion plus coronavirus relief bill. The sin of Rep. Massie was to seek a roll call vote on the bill.  Massie was against the bill and was quoted as saying “I came here [the US House floor] to make sure our republic doesn’t die by unanimous consent in an empty chamber.” Two trillion in spending, and no roll call vote of record. Just like that. At the time, we were approximately $23 trillion in debt. Now, the debt clock shows us moving past $26.7 trillion and running a deficit of $3.1 trillion eleven months into the fiscal year. This congress and president have the dubious distinction of being the most profligate administration and congress in human history. Obama was a fiscal conservative relative to this reckless, unbridled congress. COVID will cost trillions, and one year from now we will have NOTHING to show for it.

The fact that spending $2 trillion is not important enough for a roll call vote or serious debate illustrates how far congress has fallen. The US Congress has justified these massive debt and spending bills as constitutional under the general welfare clause. This is no less than government malfeasance.  James Madison, among the founders at the constitutional convention in 1787, presciently spoke to this time in America when he addressed a bill before the very first congress that contended for subsidies for cape cod fisherman. He said this:

“If congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, everything, from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of congress; for every object I have mentioned would admit the application of money, and might be called, if congress pleased, provisions for the general welfare. Were the power of congress to be established in the latitude contended for, it would subvert the very foundation, and transmute the very nature of the limited government established by the people of America…” (emphasis mine).

Everything Madison said has come to be so. There is no limit to the powers that lawmakers have assigned to themselves. They have come to regulate every minutiae of our lives from the dirt we till to the air we breathe, the water we drink, the money we earn, the property we own, the jobs we do or don’t have, when we work, and when we don’t. They tax everything that moves and subsidize everything that doesn’t. Here is what I mean by an out of control congress going beyond anything the founders could have imagined:

• California farmer faces $2.8 million fine for plowing his own field
• US “has thrown” more than $6 trillion at the Coronavirus
• Montanan fined $130,000 spends 18 months in prison for digging ponds on his property
• Feds send $1.4 Billion in COVID aid to dead people
• Woman-holding-we-are-free-sign-arrested-on-Miami-beach

All of this should be alarming to you. Reports about federal and state abuse of power, wasted money, abrogated freedoms, and general malfeasance and harassment by the government are not uncommon. Over the last 244 years since the founding of our nation, congress has progressively strayed from its constitutional obligations. As a state legislator, I have been grieved and stunned by all this and have felt powerless. However, there is hope and action we can all take and support to change this trend. It is called the Convention of States found in Article V of the US 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…” (emphasis mine)

The founders did not know if the constitution they had just written, unique to the world at that time, gave too much power to the federal government or too little. Ratification arguments went both ways. Antifederalist Patrick Henry suggested drafters of the constitution had gone beyond the mandates given to them by the states and therefore the new constitution should be rejected. This argument was soundly refuted by Madison in Federalist 40 as well other Federalists. Henry also thought the new constitution gave too much power to government and did not restrain it from usurping individual and state’s rights. Therefore, he opposed the ratification of the new constitution. Federalists such as James Madison thought the constitution as it came out of the 1887 Philadelphia convention was adequate with its “few and enumerated powers” and did not need amendment. In the end, the constitution was ratified with the understanding that there would be a bill of rights. The Virginia ratifying convention, which was highly influenced by Patrick Henry, proposed 40 amendments, 20 reflecting a bill or rights and 20 amending the body of the constitution.

The bill of rights is reflected in these amendment proposals and was ratified via the process for congress proposing amendments as outlined in article V. Two of the 40 amendments that were not passed in the original bill of rights were later passed in principle. These were term limits on the president (the 22^nd amendment) and limiting congress’s ability to increase its pay (27^th amendment). Among the 40 that were not enacted were an amendment to term limit congress, to further limit the enumerated powers of the federal government, and to require a 2/3 vote for laws regulating commerce.

Few, if any, would support the argument of the Federalists today who suggest the Federal constitution would be adequate to protect our rights and restrain government without those first 10 amendments (congress originally passed 17 amendments, and the senate approved 12, of which 10 were ratified).

Experience teaches that the original constitution was not perfect. Antifederalists were correct that it needed more work. Federalists were also correct that they had an outstanding document to govern the nation and save it from the exigencies that faced the country at the time it was written.

Article V of the US constitution was written with the knowledge that the constitution would need amendment in proceeding generations. Article V was also written with the knowledge that there may come a time when congress would grasp powers that were destructive to states’ rights and the people and would lack the will to restrain itself. Therefore, the drafters wrote into the constitution that congress “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.” (emphasis mine)

I believe that now is the time for state legislatures to apply to congress for an amendments convention. There is nothing that will restrain congress other than constitutional law (amendments) or the absolute fiscal destruction of the nation’s financial soundness. In other words, economic collapse. Congress is on pace to rack up over 45 trillion of debt by 2024. See here for more details on trends on historic national debt. Electing the right party or the right person will not fix this. I’m ashamed to say that Republican administrations have been worse for accumulating debt than Democrats, with the last one being the worst. Republicans have the desire to cut taxes, but no will to cut spending. Democrats want to raise taxes, increase spending and regulation, and upset thousands of years of successful family structure. The solution is not changing the members of congress, the executive, or the court. The US Congress has departed from the “few and defined powers” of the constitution and any assemblage of fiscal accountability. They will not return to fiscal responsibility unless the law forces them. There is simply no political will. We can’t make bird dogs fly, and “as a dog returns to its own vomit, so fools repeat their folly.” The only hope for the salvation of our federal government is in the states, which is diminishing rapidly. Thomas Jefferson said it best:

“And this is the tendency of all human governments. A departure from principle in one instance becomes precedent for a second; that second for a third; and so on, till the bulk of the society is reduced to be mere automations of misery, to have no sensibilities left but for sinning and suffering. Then begins, indeed, the bellum omnium in omnia [war of all against all], which some philosophers observing to be so general in this world, have mistaken it for the natural, instead of the abusive state of man. And the fore horse of this frightful team is public debt. Taxation follows that, and in its train wretchedness and oppression.” (emphasis mine)

Therefore, in the interest of the preservation of our union as we know it, and to address the exigent political and fiscal emergencies in our federal government, I propose that Montana join other states in passing a resolution calling for a convention of states (COS):

“limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government and limit the terms of office for its officials and for members of Congress”

To see the entire resolution, go here. Interestingly, this resolution reflects several of the amendments that the antifederalists proposed to limit the power of the federal government in 1787. The antifederalists saw weakness in their time that we are experiencing firsthand. Article V is THE process by which the states restrain federal power. If the federal government is out of control, the states have allowed it. If the federal government puts the nation in jeopardy via profligate spending, then state legislators are as complicit by their inaction. To neglect this process is to neglect the power the framers gave the states to correct abusive federal power.

George Mason of Virginia specifically pointed out as the constitution was being drafted that the purpose of the states proposing amendments via Article V was to restrain congress if it became abusive or exceeded its power. Similarly, Samuel Rose, a New York state legislator said during ratification debates that the two modes of proposing amendments were designed such that if congress needed more power, they could propose amendments. However, if they abused their power then it would be left to the states to restrain the power of congress. (1)

Just as our founders found it their role to alter their system of government, such is the role of state legislators in this time. Hesitation is aiding and abetting the status quo, which sees the federal government over-spending by tens of trillions, abrogating our freedoms and overstaying their usefulness in congress. It is not time to be fearful; it is time to act, and I hope you will support me in this.

For more information on the convention of states process and the great conservatives who have endorsed COS, go to https://conventionofstates.com/. Join me in working at the grassroots level to support this effort. Fifteen other states have passed the exact resolution above and we need 34. Sign the petition to support a convention of states here. You can email your Montana legislators by going here. If you don’t know their names, email me at tvmcgillvray@gmail.com and I will send them to you.

Article V was put into our constitution for “such a time as this.” Please act today and send your feedback.

Thank you,

Tom McGillvray

1. The Law of Article V, Robert Natelson, page 26-29.