The 28th Amendment

A number of months ago in an uncharacteristic fit of being angry about the political situation in Washington DC I generated this meme suggesting an amendment to the Constitution. Given the popularity of this meme and the fact that I was recently asked to give some background to it, and since I've wanted to write a more full explanation of it, I thought this was as good of a time to comply as any.

There are a lot of people talking about an Article V Convention of the States to modify, amend or even rewrite the Constitution in its entirety. While I think an Article V is generally a pretty good idea most of the suggested amendment schemes are far too complex to come out as anything less than a total disaster at worst or total do nothing bust at the very best. I will explain that further as this post progresses.

The birth of the United States was pretty rough. In its early days, under the Articles of Confederation it almost collapsed. I don't want to dig too much further into this at this point and there are plenty of other resources to study as to what was happening in America at that time, prior to the adoption of the Constitution. For now it is sufficient to say that it wasn't very pretty.

After a couple of years of freedom from British rule the Founding Fathers got together and wrote the basic Constitution. By basic Constitution I mean the document itself without any amendments. They did this from the viewpoint that having a large, centralized and powerful federal government would be antithetical to the freedoms enjoyed by the States and the People. As a result they made it a very minimal document consisting of only five pages which outlined the total powers of the federal government.

You got that? FIVE pages. That's the total power of the federal government.

Within a couple of years the first ten amendments, as we all know them—The Bill of Rights, was added. The entire gist of these first ten amendments is to make absolutely certain that the federal government would never extend its power beyond those specifically named in the first five pages.

Now here's something to think about. The idea of a simple and streamlined, limited federal government, leaving as much freedom to the People and States, obviously was very appealing, and for the first time that I'm aware of in human history, the States and the People voted of their own free will to join the new country, without the use of force to get them to accept the form of the federal government framed under our Constitution. Let me say this part again in different words; it is the only time that I'm aware of in the history of mankind where the majority of people elected to join the country of their own free will rather than by the threatened force of weapons.

This country was established on a voluntary basis.

It is rather stunning to see just how quickly the idea caught on and grew. This GIF showing the growth of our country demonstrates exactly what happens when the idea of freedom catches on.

(Author Attribution: CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=1750301)

As stunning as that is there is a less than obvious detail that I want to point out to you which is even more stunning. Notice the progress indicator at the bottom showing the timeline of the growth of our country. Divide it roughly in half at about the time (March 1, 1867) Nebraska joined the country. Now count the number of States joining the country to the left of the dividing line and compare that to the number of states on the right side of the dividing line.

Nebraska was the 37th State to join the country. After that only thirteen more States joined. That's thirty-seven in the first half of the history of the country, to thirteen in the entire second half. If you take the period of time from Delaware (US State #1 - 1787) to Nebraska (US State #37 - 1867) you get eighty years. Dividing that out you get a new State joining the country every 2.16 years. Extraordinary growth isn't it?

Compare that to how we've been doing ever since. From 1867 to present time—one hundred forty nine years—the United States has added only thirteen States! Only thirteen times since the post "Civil War Reconstruction" era has any group of People voluntarily decided to join the country. That's at a rate of 11.46 years per State and there is no sign of anybody in the world wanting to join this country in statehood anytime in the near future. There hasn't been a new State in this country in my entire lifetime of 54 (now 60) years!

What changed? We were flourishing, prospering and growing at a fantastic rate for a while then suddenly it slowed and finally stopped.

Anytime I'm doing statistical analysis and I see a graph moving upwards rapidly that suddenly turns downward I look just prior to the change of statistic to see what happened immediately prior to it that could have caused the change.

Remember what I established above as the sudden growth of our country due to the voluntary nature of People and States joining the country? Well, all of a sudden we have a "Civil War" which established the precedent that if any State or People seeks to leave the country they will be overrun by military might and at gun point be forced to return to the "Union" against their will.

If I were the People of a candidate State deciding whether or not to join this country I would be hesitant too! Once you get yourselves into it you can never get yourself back out of it and if you should try we will kill you. Just like, "Hotel California," you can check out any time you like but you can never leave. That is now the operating principle of the United States federal government.

You remember that voluntary principle of limited federal government outlined in the first five pages of the Constitution, plus the Bill of Rights, that caused us to so rapidly grow? Where is your limited federal government now? America? Where is it?

The first twelve amendments to the Constitution did absolutely nothing to add to the power of the federal government.

Then with the 13th Amendment the federal government took unto themselves the power to decide who should or shouldn't be free. Power is a double edged sword. If they have the power to decide who should be free then they also have the power to decide who is not free. Everybody should be free. This is an absolutely fantastic principle of existence for a country. So I wish to express that I have no objection to Section One of the 13th Amendment other than to say that the States should have individually ended slavery themselves.

It is in Section Two that has the problem that violated the fundamental principle of limited power for the federal government. "Congress shall have power to enforce this article by appropriate legislation." This is the first time a phrase like this happened in our Constitution but it most certainly is not the last. And this is the precise point in our country's history just before our growth began its decline.

The fundamental principle behind the majority of the Constitution, that of a federal government which is not allowed to expand its own power was clearly and completely tossed aside. A power, whether that power was right or wrong, that belonged to the States, was taken from them by the federal government.

Not only is this change a violation of the basic Constitution it is a violation of the 10th Amendment of the Bill of rights.

Following that the federal government continued its rampage against the States by passing the 14th, and 15th Amendments, both of which contain additional powers for the federal government which used to belong exclusively to the States and the People. Something that has to be mentioned here is that the passage of the 14th Amendment was mindbogglingly unconstitutional. Its text contains ex post facto laws which violate Article One, Section Nine of the basic Constitution and in order to get the numbers to pass it through Congress they had to eject the Senators from several States and stack them with shill representatives. This was also a gross violation of Article Five because, "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

More than that though, if you look at the structure and function of the Privileges and Immunities Clause and how it has been used since the passage of the 14th Amendment you can begin to realize that there is nothing based on this that the federal government can't force on the individual People. The general effect is that the federal government, in the 14th Amendment, took the power of the States to protect and care for their own People and transferred it to the federal government. There is no limiting factor on the federal government regarding the People and no power of the States to protect the People from the federal government.

Again following that came the 16th Amendment wherein the federal government took upon itself the power to tax the People as individuals. The 17th Amendment takes the power of how Senators, the representatives of the governments of the States, are chosen, from the States. The 18th Amendment gives the power to the federal government to dictate the People's morality. The 19th Amendment strengthens the power of the federal government to decide who can and can't vote. The 21st Amendment reverses the 18th Amendment however the dictates of the federal government on our morality still lies in federal hands. The 24th and 26th Amendments are just more federal power over who can and can't be allowed to vote.

With more and more power being transferred from the States to the federal government is it any wonder why more people decide that they want nothing to do with us? Our federal government is going to take almost all of their freedoms to decide their own futures away from them! And once they are in it will literally kill them to try and get out!

I have to ask you America; can we please stop amending our Constitution to the effect of transferring our power as independent States and People to the federal government with the expectation that they will fix everything and make it all alright? Please? Can't we just get back to the original principle of freedom to decide for ourselves on which we were founded?

After exploring some of the major points of our history we can now get back to the top of this article regarding my own proposed constitutional amendment.

"Section One: Any and all previous amendments to this Constitution which were ratified in violation of the 10th Amendment, Article V or any other Article, Section or Clause of this Constitution are hereby null and void and are not to be enforced by any branch or department of the federal government of the United States."

This would remove the 13th, 14th, 15th, 16th, 17th, 18th, 19th, 21st, 24th and 26th Amendments from federal power and restore those powers back to the States. Subsequent to this, and quite obviously, the States themselves should incorporate some of these powers, particularly those regarding the banning of slavery and protecting voting rights into their own constitutions.

I have been thinking for quite some time now that one of the major problems our county has is that there is no enforcing mechanism within the Supreme Law of the Land regarding its violation. A congressman, president, senator, federal judge or justice can seemingly violate the Constitution with impunity. The Constitution has no teeth!

"Section 2: Any member of Congress, the Supreme Court or President who passed, rules on, or signs into law, or tries to enforce any provision, regulation, ruling or executive order in violation of any Article, Section or Clause of this Constitution, or any amendment ruled non-compliant under Section 1 of this Amendment, shall be charged with perjury or treason."

Originally I wrote Section 2 saying that the penalty for violation should be that they get hung for treason. That may be just a tiny bit over the top but I was really quite angry at the time and sometimes, particularly when I'm in a fit of temper, my sense of humor gets the best of me in an attempt to compensate. Anyway, I think most people would get the point.

I think it would be counterproductive to add a bunch of amendments to the Constitution. They seemingly tend to add more power to the federal government than they take away from them. Without any method of enforcement the federal government would just ignore the additional amendments in exactly the same way they are ignoring the 10th Amendment to the Bill of Rights; as well as they are ignoring the 1st, 2nd, 4th, 5th, etc.

With that said one of the big problems the country is having now is in overspending and it's to the degree that a lot of people are calling for a balanced budget amendment. Most of the current spending is on federal programs which are not specifically enumerated in the Constitution and are thus violations of the 10th Amendment. I think if there were a mechanism within the Constitution for its enforcement the States and the People would then have something to use against the federal government to stop their excessive overspending, thus making things such as a balanced budget amendment unnecessary.

We had something that worked pretty well for about eighty years. It would be an extreme mistake to toss those principles aside.

Isn't it about time that we stop the march toward more and more complicated and omnipotent federal powers and get back to the basics that were responsible for our largest period of growth?