Chapter 8 — Amendments

Consider the logic of the following statements:

When politicians at the federal level violate their oath and the Constitution by (1) spending what is not authorized, or (2) making laws on subjects with no authorization, many citizens and legislators advocate amendments to the U.S. Constitution to resolve the issue.

Is the Constitution the problem or is this a personal integrity problem?

How will amendments to the Constitution cure shortcomings of personal integrity?

When the Constitution is not the problem, why change it?

The framers acknowledged in the Federalist Papers that the novelty and difficulty of what they were doing would require periodic revision. They did not see the purpose of amendments as the way to control the federal government. It was to remedy defects in the Constitution itself. Hamilton said in Federalist Paper No. 85 that useful amendments would address the organization of the government, not the “mass of its powers.” Madison said in Federalist Paper No. 43 that “useful alterations will be suggested by experience.”

The 12th Amendment, ratified in 1804, was one suggested by experience. It fixed an irregularity in the process of electing the President. At the election of 1800, the electors gave John Adams the highest number of votes while Jefferson was given the second highest number. So Adams became President and Jefferson became Vice President. But Adams and Jefferson were political opponents. The 12th Amendment was designed to fix that. As a result, the electors could ensure that they voted for compatible people when they cast their vote for President and Vice President.

The 13th Amendment, ratified in 1865, recognized the defect of slavery that the Constitution did not.

The 11th Amendment, ratified 1795, reduced the powers of the federal courts by reducing their jurisdiction. It prohibits them from hearing cases filed against a state by citizens of another state, or by citizens or subjects of any foreign country.

Generally speaking, amendments at the federal level can have unintended or unfortunate outcomes because:

• Amendments generally do not stand alone as they are subject to opinions of the federal courts.
• Most amendments do not amend the real problem.
• The amendment record so far has not followed the founders’ intention.
• Results of an amendment can be different than expected by the citizens.

Article V Convention

The federal convention of 1787 was called by the Continental Congress for the sole and express purpose of revising the Articles of Confederation. The process they used should serve as a warning about such a convention to amend the Constitution in the future.

The delegates to the 1787 convention:

• Ignored their instructions from the Continental Congress and from their states.
• Ignored Article XIII of the Articles of Confederation which required the states to obey
• Congress on matters covered by the Articles.
• Wrote an entirely new Constitution with a new method of ratification which required only nine of the thirteen states for ratification because once the convention started, the delegates made no rules which prevented the change in ratification procedures.

The deficiencies of amendments to correct government mischief have been documented in previous chapters and in this chapter above. Therefore, no logical argument can be made for that effort.

The framers never suggested that the purpose of amendments was to correct behavioral problems of elected officials. The states and the people were expected by our framers to do that through elections, education, and nullification.

Our framers did not consider these conventions a wise move. Mr. Pinckney, as recorded on page 632 of the Records of the Federal Convention on September 15, 1787 said,

Conventions are serious things, and ought not to be repeated.

Alexander Hamilton in Federalist Paper No. 85, 9th paragraph, wrote:

…the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded.

James Madison said to Turberville in his letter of November 2, 1788:

If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system; it would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partizans on both sides; it wd. probably consist of the most heterogeneous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all these circumstances it seems scarcely to be presumeable that the deliberations of the body could be conducted in harmony, or terminate in the general good.

Farther down in the same letter, Madison commented:

Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second meeting in the present temper of America and under all the disadvantages I have mentioned.

Article V advocates ignore our founders’ advice, proposing using an Article V convention to propose amendments anyway.
Here is the applicable part of Article V as written in the 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, as the one or the other Mode of Ratification may be proposed by the Congress;

Article V, as illustrated above, provides two methods of proposing amendments to the Constitution. Congress either (1) “shall propose” the amendments, or (2) Congress “shall call” a convention when the legislatures of two thirds of the states apply for it. A proper reading shows that Congress alone has the responsibility for any convention. States may only “make application.”

The first method is the one that has been used for all twenty-seven amendments we have now, including the Bill of Rights which were introduced into Congress by James Madison.

The second method has gone by several titles in the past. It has been called a constitutional convention, a con-con, an Article V convention, or most recently, a convention of States. The term, “convention of States,” is deceptive as only Congress, not the states, has the power to call it. Since Article I, Section 8, last clause, vests in Congress all powers “necessary and proper” to carry out its power, then calling a convention falls under that clause. Congress, not the states, may decide all organizational issues, such as, the number and selection process for delegates under the authority of the necessary and proper clause.

But once the delegates are seated, neither Congress nor the states have any control over them. The delegates can do whatever they want. They can even propose a new Constitution if they choose and no one can stop them.

The second point to consider is that the U.S. Congress has financial leverage over the states since the states are dependent on federal funding to balance their own budgets. Reid Wilson writes in his September 23, 2013 article in the Washington Post that,

Federal grants accounted for more than one-third of State budget revenues in fiscal year 2011, according to data compiled by the Pew Charitable Trusts Fiscal Federalism Initiative.

If these Article V advocates depend on the states to make demands on the federal government, will the federal government, in turn, threaten to withhold funds the states need to balance their own budgets? Will the states risk losing federal funds on which they now depend for such matters as education, transportation, housing, national parks, and so forth?

A third point to consider is the rules the states themselves set up for the delegates. In the past, to set up rules for the states delegates, state legislators introduced legislation that limited what their delegates could or could not do since Article V in the Constitution does not say. Even if one state’s delegates was to remain within the boundaries set by the state legislature, what is to bind the delegates from the other forty-nine states, and prevent them from overstepping the people’s wishes? What if one state is in favor of abolishing our present Constitution and convinces others to join it?

In summation, if a constitutional convention was requested by the required number of states for the sole purpose of amendments, the chances of a good outcome may not be favorable. We must consider:

• Amendments generally do not stand alone as they are subject to opinions of the federal courts.
• Most amendments do not amend the real problem.
• The amendment record so far has not followed the founders’ intent.
• Results of an amendment can be different than expected by the citizens.

The National Popular Vote versus the 12th and the 17th Amendments

History has shown that the Constitution has been opposed by one faction or another since the day of ratification. One of the most pernicious of attacks is by those who seek to override the constitutional provisions under which the states, as political entities, elect the president, and to replace it with a national popular vote (NPV) under which inhabitants of major metropolitan areas will have an advantage to choose the president, which disregards the votes of the rural communities.

In order for the states to maintain their independence and sovereignty, our framers wrote these provisions into our Constitution:

The states, as separate political entities, were to elect the President and Vice President, Article II, Section 1, clauses 2-3.
The state legislatures were to choose the two U.S. Senators for their State, Article I, Section 3, clause 1.

Our framers, after considering their extensive study of history, never intended for the president, vice president, or members to the senate to be elected by a national popular vote as they are today, but by the state legislatures.

The people were to elect the members of the House as their representatives. That was the part of Congress whose allegiance would be only to the people.

James Madison, Father of Our Constitution, explains in Federalist Paper No. 45, 3rd paragraph, why this ensured that the states would maintain control over the national government.

The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.

In Federalist Paper No. 62, it was explained that the appointment of senators by state legislatures was to secure the authority of the state governments in the federal government, and to preserve the sovereignty remaining in the individual states.

Federalist No. 62, 7th paragraph, shows another advantage of the state legislatures’ appointments of U.S. Senators:

Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.

Since representatives to the House were chosen by popular vote of the people, and U.S. Senators were to be chosen by the state legislatures, no law could get passed by Congress unless it was approved by the people–via their representatives and by the states via the appointed U.S. Senators.

This is what our framers gave us to protect us from a Congress bent on usurpations of their delegated authority.

In Federalist Paper No. 64, John Jay explained that the electors would be “select assemblies” “composed of the most enlightened and respectable citizens” who would vote for those men who were “the most distinguished by their abilities and virtue.” Furthermore, electors would not likely “be deceived by those brilliant appearances of genius and patriotism” which “sometimes mislead as well as dazzle.”

In all of Federalist 68, Hamilton elaborated on the same idea and explains the wisdom of specially selected electors who were “most likely to possess information and discernment” elect the president.

He also warns,

These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?

Now that we see why our framers provided that electors from the member states were to choose the president of the federation, let us see how the voting is to be conducted.

The long ignored, but never repealed, 12th Amendment, ratified in 1804, sets forth binding procedures for taking and counting the electors’ votes.

The electors in each state are to meet and cast their votes for president and vice president separately. Assume a state has 13 electors and the voting goes like this:

For President:

Mr. Falconer–6 votes
Mr. Lossie–5 votes
Mr. Bell–2 votes

For Vice President:

Mr. Cross–5 votes
Mr. Duncan–5 votes
Mr. Nichols–3 votes.

The electors sign and certify this list and send it to the President of the Senate. On the appointed day, and in front of a joint session of Congress, the President of the Senate counts the electors’ votes from the member states.

The person with the greatest number of votes for president becomes the president if he has a majority. The person with the greatest number of votes for vice president becomes the vice president if he has a majority. If one or both do not have a majority, the rest is explained in the amendment.

Prior to the 17th Amendment, this is how our Constitution required the elections of president and vice president to be conducted.

The states, as political entities and as the members of the federation, are the ones who were to choose the president, vice president, and senators. This is what our framers gave us to protect us from a Congress bent on mischief against the states. It also gave the smaller states a voice in the selection of president.

The result of the state legislatures (1) choosing the U.S. Senators and (2) controlling the election of the president and vice president, is that the states would control the national government and keep it in line.

With the 17th Amendment in 1913, the election of members of the U.S. Senate was now in the hands of the citizens, rather than the state legislatures. This is how the states, the members of the federation, lost their representation in Congress and their control over that body. U.S. Senators no longer needed to answer to the wishes of their own states.

As time went on, the national political system chose to disregard the framers’ intent of the election of the president by the states when a new system was accepted whereby national political parties handle the elections of president and vice president. Instead of the small bodies of specially chosen wise and prudent men who actually made the selections, electors became obligated for the popular vote in their states.

Instead of the electors choosing the vice president, now the party bosses, then party nominees, choose the running mates. Instead of the electors’ votes transmitted to the President of the Senate with the total votes listed for each person who receives votes, states awarded all their electoral votes to the person who won the popular vote in their state.

This is how the states, the members of the federation, lost their control over the election of the president.

To further dilute the voting system, there are some that are calling for the national popular election of the president as well.

What is the answer in order to return to the founders’ intent?

• Elect to Congress only those who are committed to repealing the 17th Amendment. This is the only way the states can regain control of Congress.
• Return to the 12th Amendment. We must dismantle the present unconstitutional system and return to the method of electing the president and vice president established in our Constitution. State legislators could immediately restore to their states the power to control the election of the president. All states have to obey the 12th Amendment. Also, specially chosen electors are far more likely to choose good presidents than the many citizen voters who have not made a study of history or of our Constitution.

As a result, costly state primaries or national conventions would not be needed. Expensive advertising which excludes the candidates who are not wealthy would be eliminated. Voting machines could be eliminated. Congress could repeal unconstitutional federal laws which restrict political speech. There would be no need for candidates to promise future favors in return for campaign contributions. U.S. Senators would not be so inclined to vote for legislation that would cost the state citizens’ tax money such as Medicaid does today. In short, the temptation of corruption which permeates our present system would be reduced.

Even in its present unconstitutional form, the Electoral College serves two important purposes. It balances the influence of the heavily populated urban areas, which typically vote one way with the sparsely populated rural areas that typically vote the other way. It gives the smaller states a voice in the election of president.

Here is a bit of wisdom from Thomas Jefferson’s letter of February 2, 1816 to Joseph C. Cabell:

…the way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body.

The 14th Amendment and Same-sex Marriage

Does the 14th Amendment require a state to license a marriage of two people of the same sex?

Does the 14th Amendment require a state to recognize a marriage of two people of the same sex when their marriage was lawfully licensed and performed out of state?

These were the two questions presented for the Supreme Court to decide during April 2015 oral arguments in Obergefell v Hodges and consolidated cases.

Section 1 of the 14th Amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

Section 1 says nothing about marriage or homosexuality. How can it authorize the Supreme Court to force states to accept same sex marriage?

What the court had to do in order to be able to accept the case was to redefine liberty in Section 1 so it meant privacy. Now that privacy has been determined to be a constitutional right, as in Roe v. Wade, “privacy” now “arises” under the Constitution and, in the Court’s eyes, falls under their jurisdiction to hear and issue an opinion on the case.

Privacy is a natural right, not a constitutional right. But the Court said under Part VIII of their opinion:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon State action, as we feel it is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

In Lawrence v. Texas in 2003, the court looked at the word, “liberty” in Section 1 and said that it means consenting adults have the right to engage in private acts of homosexuality. Since the federal judges have decided that they can rule on such subjects, the opinion could have gone the other way, making homosexuality illegal. They determined in that paragraph,

“We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment.”

And in the third paragraph from the end, they declare,

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct…

The Supreme Court uses the word “liberty” in Section 1 of the 14th Amendment to justify which behavioral practices the court may decide. By claiming that these practices constitute liberty rights which arise under Section 1 of the 14th Amendment, they evade the constitutional limits on their judicial power.

Hamilton does not agree.

Alexander Hamilton writes in Federalist Paper No. 83, 8th paragraph:

In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.

In Federalist Paper No. 80, Hamilton explains the categories of cases over which federal courts have jurisdiction. If a case does not fit within one of these categories, federal courts may not hear it.

Since the right to same sex marriage is claimed by the court to arise under Section 1 of the 14th Amendment, we will focus on Hamilton’s discussion of cases “arising under this Constitution” or as Hamilton puts it, cases “…which concern the execution of the provisions expressly contained in the articles of Union…”

Hamilton then gives examples of such “expressly contained” cases. Article I, Section 10, prohibit states from imposing duties on imported articles, or from issuing paper money. In those cases, the federal courts are in the best position to overrule infractions which are contrary to the Constitution.

Where are provisions which address marriage and homosexuality “expressly contained” in our Constitution?

Power to regulate the subject of abortion, homosexuality, and marriage is not delegated to the national government for the country as a whole by our Constitution.

The Supreme Court has usurped power over these objects. Their opinions are void for lack of jurisdiction and are proper objects of nullification.

Sharia Law versus the First Amendment

Sharia Law advocates claim to have a First Amendment right to build mosques, proselytize, and implement Sharia Law here. But is that what the First Amendment says? It says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment does not grant any rights to anyone. All it does is to prohibit Congress from making laws respecting the subjects of religion, speech, the press, or assembly.

And recall, in the much larger issue, Article VI, clause 2, of our Constitution says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Our Constitution only recognizes those laws which were made by the representatives the citizens voted into office as the law of the land.

Those laws, if made pursuant to the Constitution, protect the natural rights God gave each person. One of those natural rights is to worship as we please. Sharia law is contrary to the free exercise of worship.

Let’s look at just one God-given right: the right to a fair trial.

• Bearing false witness is condemned by the Ten Commandments.
• The evidence of two or more witnesses is required to prove a case as explained in Deuteronomy 19:15 and Matthew 18:16.
• Public trials are required as shown in Exodus 18:13.
• Judges are required to be fair, impartial, without favoritism as explained in Deuteronomy 1:16-17.

In Iran, judges using Sharia Law in “morals” cases, such as adultery, are allowed to make their own subjective determinations that a person is guilty even in the absence of any evidence.

Sharia Law makes no distinction between religious and political spheres of government. The Constitution, on the other hand, restricts the federal government’s intrusion into citizen’s personal lives.

Our Constitution and laws which are authorized by the Constitution are the supreme law of the land. Anything to the contrary must fall. It violates the Constitution to practice Sharia in the United States. Those who seek to replace our Constitution and the laws under its authority with Sharia are guilty of criminal sedition. All members of the federal government took the oath to support the Constitution and have the duty to prosecute them for sedition, or deport them.

Parental Rights Amendment

The Parental Rights Amendment (PRA) strips parents of their God-delegated authority over their children, transferring that authority to the federal government, despite the name of the amendment.

The subject of children is one which is reserved in the Constitution to be addressed by the states or the people. It is not a lawful subject which the federal government may address, either by legislation or treaty, unless there is an amendment that changes that.

Enter the Parental Rights Amendment (PRA) which was introduced into Congress in June of 2013 as H. J. Res. 50.

Amendments are part of the Constitution. Therefore federal courts have power to decide issues addressed by amendments. The PRA would transform families and children from matters over which the federal government now has no lawful authority to matters under the total control of the federal government should such an amendment be ratified.

Here are some relevant parts of the amendment as introduced.

Section 1: The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right.

Just as the Supreme Court sees the First Amendment as the source of our right to free speech, and they decide what speech is protected by that amendment and what speech is not, so it will see the PRA as the source of parental rights, and the judges will decide what rights parents have and what rights they do not have.

Do the words “upbringing” or “care” in Section 1 above include religious training, discipline, diet, medical treatment, and whether the child may wield a hoe in the family garden? What does it mean that these subjects are not listed? Does it mean that parents do not have rights regarding these issues? The Supreme Court will decide what it means.

Section 2: The parental right to direct education includes the right to choose public, private, religious, or home schools, and the right to make reasonable choices within public schools for one’s child.

What is not included in the parental right to direct education? What is a “reasonable” choice? Who decides what is not included and what choices are “reasonable”? Federal judges decide.

Section 3: Neither the United States nor any State shall infringe these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.

Whatever parental rights you think you have may be infringed upon by the federal government or the state governments if they have a good reason for it. Federal judges will decide whether the federal or state governments have a good reason to infringe upon your “parental rights”.

Section 4: This article shall not be construed to apply to a parental action or decision that would end life.

Does this mean that parents retained the right to make these decisions? Or does it mean that the PRA does not protect that right, hence parents no longer have it?

What if federal courts construe this section to mean that parents will no longer be permitted to make decisions about terminating or continuing medical care for their ill, injured, or defective (Downs’ syndrome, birth defects, etc.) children?

Section 5: No treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article.

No rights are guaranteed by the PRA. Not one parental right can be named that cannot be voided if the federal or state government shows federal judges that the government has an interest in voiding the right.

Furthermore, since the PRA makes federal control of children an enumerated power, it is the PRA itself which would give the U.S. Senate constitutional authority to ratify the U.N. Declaration on the Rights of the Child.

The Proposed 28th Amendment

The proposed 28th Amendment reads:

Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.

Should we support this? How could any amendment make them obey the Constitution when they do not obey it now?

The proposed 28th Amendment would have the effect of creating a general legislative power in Congress. A general legislative power is the opposite of enumerated powers. With the general legislative power created by the proposed 28th Amendment, Congress could make any law on any subject as long as it applied to them as well as to us. They would no longer be constrained by the enumerated powers.

While some might think that the 28th Amendment will prevent Congress from exempting themselves, the actual result of such an amendment would destroy the concept of enumerated powers altogether.