Is It Time for a Constitutional Convention of the States?

“I own that I am not a friend to a very energetic government.  It is always oppressive.”  —Thomas Jefferson

“Power tends to corrupt, and absolute power corrupts absolutely.”  —Lord Acton

Enshrining the Rights God Granted

The Constitution of the United States does not, in or of itself, create any rights.  On the contrary, the job of the Constitution is to protect the Natural Rights which pre-existed the institution of government altogether.  Indeed, Natural Rights were created by God, and the Framers of our free republic sought only to make sure that they were formally recognized and preserved.  In the Declaration of Independence, Thomas Jefferson pointed out that human beings “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  Unchecked government has a tendency diminish and cancel rights, since unmitigated government power so easily corrupts so many.  It was Lord Acton who said, “Authority that does not exist for Liberty is not authority but force.”  Thus, government must be established among the people that is limited in its authority.

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Limits on Government Are Needed for the People to Be Free

The federal government was created by the sovereign states and not the other way around.  This is why state popular majorities—as represented by the states’ chosen electors—choose the president, rather than a national popular majority.  It is also why understanding the Constitution as a restrictive force—even as it outlines how the federal government should function—is so vitally important.  The Constitution was written in the language of the American people, and it was meant to be a simple expression of the people’s will that any American citizen might be able to pick up and read without having to consult an attorney in order to understand it.  It is the people’s tool for restraining government power, not the government’s tool to do just the opposite.


Far-Away Solutions for Far-Away Agendas

Many of the problems resulting from bad government in America, since our nation’s founding, have been the result of too many solutions for local problems being prescribed by far-away legislators and bureaucrats who have their own agendas—agendas that are often incompatible with the goals and purposes of the people who inhabit the diverse sovereign states.  Sometimes less is more; less federal governance often translates into more beneficial outcomes in the local people’s ability to enact their own, appropriate solutions.


Avoiding Divisions among the People

Much of the political divisiveness that exists on a national level in America today could be avoided, if only the Constitution were restored along the lines of its original purposes.  Many of the issues which set Americans against each other should not even be playing out on the national stage.  The reason is this: health care, public education, government-sponsored charity, labor relations, housing development, energy regulation, environmental issues, as well as many other government activities that are so hotly debated with regard to government’s proper role and scope, are nowhere listed in the Constitution of the United States as enumerated powers of the Congress allowing for federal control or regulation of those domains of enterprise.  As a result, these issues should properly be left to the states, under the Tenth Amendment’s exhortation, the full text of which reads as follows: “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.”


Washington’s Cabinet: Reflecting the Constitutional Prescription of Limitation

It was because of the limited scope of national governance that George Washington, when appointing his presidential advisors, restricted himself to nominating a cabinet of what would eventually become only four people: a Secretary of State, a Secretary of the Treasury, a Secretary of War (now referred to as Secretary of Defense), and an Attorney General.  These posts were the only ones, as Washington saw it, that were justified as being necessary, in order to help the president attend to his responsibilities as chief executive.  And a reading of the Enumerated Powers Clause of the Constitution, in Article One, Section Eight, would serve to validate the limited scope of governmental activity which the chief executive would be charged with overseeing.  Here is the clause:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

“To borrow money on the credit of the United States;

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

“To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

“To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

“To establish Post Offices and Post Roads;

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

“To constitute Tribunals inferior to the supreme Court;

“To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

“To provide and maintain a Navy;

“To make Rules for the Government and Regulation of the land and naval Forces;

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”


“I Walk on Untrodden Ground”

President Washington, as a student of the Constitution, utilized much caution in how he exercised authority under its aegis.  Washington is known to have said, “I walk on untrodden ground.  There is scarcely any part of my conduct which may not hereafter be drawn into precedent.”  So, Washington well knew that, while the cabinet officers he wished to hire were not defined by the Constitution, there was a portion of the Constitution which stated that the president “may require the Opinion in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices.”  The offices referred to by the Constitution needed to be established by the president, in line with the governmental powers enumerated by the people in their Constitution.  Also, upon signing the Judiciary Act of 1789, Washington established the federal judiciary system along with the office of Attorney General, in accordance with the Constitution’s Article Three, Section One, which states that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”


The Lawyerly Mischief of Judges

A mischievous reading of the Elastic Clause of the Constitution is chief among the reasons for the overgrowth of the governmental bureaucracy at the federal level.  This clause is found in the final part of the Enumerated Powers Clause and states that Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”


The Supreme Court’s reading of “necessary and proper,” in its 1819 hearing of McCulloch v. Maryland, redefined these words to remove their meaning as a restriction on the Congress.  The Court remade the legal meaning of “necessary and proper” to mean, instead, that the Congress was actually endowed with an enlargement of power that it had perhaps been too shy to exercise.  Chief Justice Marshall opined about the Necessary and Proper Clause that “it purport[s] to enlarge, not to diminish the powers vested in the government.  It purports to be an additional power, not a restriction on those already granted.”  By writing these words, Marshall reinterpreted the restrictive nature of the Necessary and Proper Clause in a lawyerly way that twisted its application into a considerably more permissive realm of government action.


The Necessary and Proper Cause, as a result of Marshall’s rewrite, has often been used in conjunction with the Commerce Clause to provide a Constitutional basis for the passage and enforcement of a plethora of coercive federal laws.  For example, during the days of FDR’s New Deal reforms, many of the measures being passed were justified as “necessary and proper” with respect to being able to regulate interstate commerce.


Restoring the Constitution: Slaying the Government Leviathan

The government Leviathan, instead of properly serving the public, is reversing its rightful role and inappropriately commanding the public instead.  This fundamentally changes our country, making the people less free and causing them to fear their own government, rather than the other way around.  To slay the government Leviathan, or at least to tame it, the people must once again arm themselves with an understanding of the Constitution and the freedom principles upon which it is framed.


The time may be ripe for a Constitutional Convention of the States, the possibility of which is provided by the Constitution in Article Five: “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.”


The purpose of such a convention would be to propose clarifications to the limitations on government power as formal amendments to the Constitution, thereby putting teeth back into the Necessary and Proper Clause as a restrictive force and limiting the use of the Commerce Clause, among other corrective actions that the people might deem appropriate.  This would restore the power of the sovereign states to solve most political problems themselves, thus keeping issues that are best remedied closer to the people from dividing the entire nation.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by

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