It goes without saying that people have a right to be frustrated with the state of affairs in Washington D.C. and how the federal government currently (dis)functions. However, it’s important to understand what’s causing this phenomenon, or else solutions however well-intended will only add to the problem.
An example of this are proposals to amend the Constitution in one way or another by either adding new amendments or clarifying existing ones. Some of these amendments are intended to either ensure individual freedom or restrict the federal government in some way. These kinds of proposals are rooted in the idea that the problem is with the Constitution lacking clear and unambiguous language on certain issues.
But is that really what’s going on?
One only needs to look at the Tenth Amendment itself to realize just how clear the language is.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Anyone with basic literacy understands what this means: if a power isn’t expressively given to the federal government through the Constitution, then that power is left to the states.
It there was any doubt, James Madison offered the same interpretation in Federalist #45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.
Yet, is that what we see today reflected in the relationship between the feds and the states? Obviously not, and in spite of the clear constitutional language.
If this can be ignored, bypassed, defied, or misconstrued, then it can be done to any potential amendment – no matter how explicit the language is.
The meaning of the Second Amendment is also fairly evident: “the right of the people to keep and bear arms shall not be infringed.” Yet some argue that the term “well-regulated” refers to government regulation of individual gun rights, rather than military training and preparation – which would contradict the latter part of the amendment.
National Constitution Center CEO Jeffrey Rosen recently asked three teams of scholars to draft new Constitutions from scratch. The “libertarian” team joked that “all we needed to do was to add ‘and we mean it’ at the end of every clause.”
The problem is people who are supposed to follow the Constitution don’t. And those who have the ability to enforce it don’t.
If the limits already included in the Constitution aren’t being enforced, then why should we expect a proposed new amendment to see any greater success?
Further, new language opens new opportunities for judges to interpret new government powers. As Madison’s quote above indicates, it doesn’t matter what the author’s intent is; today, the courts decide what the words mean. An example is the Bill of Rights. It was intended to ensure the federal government doesn’t infringe on specific rights, yet the incorporation doctrine has allowed the feds to use the Bill of Rights to extend its powers into matters beyond their constitutional authority.
The answer is not more constitutional amendments but proper enforcement of the Constitution as written. That means states, counties, and cities nullifying unconstitutional federal actions. It also means local governments resisting any efforts at the state level to enforce illegal federal laws. It means that when all these efforts fail people still have their right to defy these laws in a manner that seems most appropriate.
The power-hungry don’t listen to words spoken or on paper; they change only when they are compelled to do so.
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