Are federal 'evils' still 'sufferable'?

Last week I tried to make the case for the American public 'reclaiming the Constitution" as it was originally written.

One person wrote back to me and said, "OK. How?"

That, of course, is the tricky part.

I personally have in the past encouraged a constitutional convention to add safeguards en masse to the original document. This would allow us to revoke a number of dangerous court-imposed interpretations on the Constitution which over the years have amassed on the hull of the ship of state like so many barnacles on a sailing vessel. Of course, each individual barnacle is just a nuisance, and even taken together, they remain conveniently submerged and thus out of view so they are easy to ignore. But if you have a ship, you also have to scrape off barnacles. They are a fouling organism that can destroy your vessel from below.

We have the same problem with all the interpretations and doctrines which have encrusted our beautiful Constitution. Whether it is the absurdity of corporate personhood or the obscenity of the Commerce Clause, the penumbra of privacy or the elastic definition of citizenship - year after year of "precedent-setting" court rulings have made the original document almost irrelevant in huge swatches of public policy.

A constitutional convention would allow us to address these grievances wholesale. Nonetheless, most advocates of the original Constitution are afraid to see the country enter into a new convention for fear of what mischief might occur. The thinking is that we would end up with even less liberty after a constitutional convention rather than more.

Perhaps so, but that was also an argument to dissuade people from taking up arms against the crown in 1776. Many thought that George III was a tyrant, but few had the courage to stand up to him, thinking that they would surely end up in prison, or worse, dead.

Nonetheless, the colonists took a chance, and history has thanked them for it.

Consider the words of the Declaration of Independence: "We hold these truths to be self-evident, that all men … are endowed by their Creator with certain unalienable rights… That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government…"

Thomas Jefferson, the author of most of the Declaration, thus challenges us from the grave "to alter or abolish" the government if we find it to be oppressive. God forbid we need another revolution to effect such change, especially when the hope is to restore our governing document to its original intentions. We should be able to bring about such change through reason, should we not?

Jefferson has a warning for those who would tamper with history in the following lines, but he concludes with a new challenge:

"Prudence… will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."

If you think the evils of the federal government are still 'sufferable," then by all means continue to suffer. But if you are tired of the "evils' of government excess, if you think that "we the people" have suffered from "a long train of abuses and usurpations," then perhaps you will agree with Jefferson and the other signatories of the Declaration of Independence that it is our "duty" to "provide new guards for [our] future security."

Perhaps the citizens of this country would muck it up and leave us with even less liberty than before as a result of a constitutional convention. That is certainly a valid fear. But, on the other hand, if we believe in constitutional government, can we really be afraid to let the people write their own constitution? Seems a bit hypocritical to me.

Nonetheless, because I am a realist, I don't really expect to see Americans 'reclaiming the Constitution" via the route of a constitutional convention. Yet, perhaps there are some small measures that can be taken that will help to educate the government that it is "we the people" who are in charge, not those we elect to serve us.

Of particular symbolic value would be the "Enumerated Powers Act" sponsored by Rep. John Shadegg of Arizona. This bill would force Congress to cite the specific constitutional provision that authorizes each law passed.

Sounds easy, right, but it could be the perfect way to ensure that the public sees just how far the Constitution has been stretched to accommodate the amassed powers of both Congress and the presidency.

After all, the Constitution only authorizes 20 federal functions for congressional oversight, and the 10th Amendment specifically limits the federal government to no more than those 20 "enumerated" powers. As a simple example of what wouldn't fly under the "Enumerated Powers Act" is the Department of Education. There is, plainly, no constitutional authority for Congress or the federal government to regulate education. This used to be understood to be a local function, although states may well have their own right to regulate education processes through their particular state constitutions.

What would ultimately happen if the "Enumerated Powers Act" were to become law is that Congress would either have to admit that it has grossly over-reached and has no legal authority for most of what it does, or it would have to pile 90 percent of federal law under the umbrellas of the generic "Commerce Clause" and "General Welfare Clause."

They might be able to get away with it for a while, but sooner or later it would be so embarrassing that even Congress might be shamed into following the law of the land. Or maybe not.

n Frank Miele is managing editor of the Daily Inter Lake and writes a weekly column. E-mail responses may be sent to edit@dailyinterlake.com