Monday, October 20, 2008

I Would Like to Propose an Amendment

Peter W. Wickham, Jr.

In a recent column I alluded to the fact that the U.S. Constitution is a weak document when it comes to restraining the central government from growing into an oppressive oligarchy. The best analogy is that of a brahma bull being led on a dog leash by a small child; you better believe that the bull is going to make all the decisions about which direction they're going.

In the first place the Constitution does not really limit the power and scope of the federal government. It gives the government a few specific duties and delegates the authority necessary to get the job done but it does not stop it from taking on more power for itself when some of the People call for the government to handle problems that are not within its original mandates.

Secondly, unlike many modern statutes and penal codes, the Constitution contains no definitions of the terms used within it. What is a "Militia?" Who are the "People?" When is a person a "citizen?" Now just about anyone can get a hold of a modern printing of an 18th century dictionary and get a good idea of what the founders meant by the words they used but the federal government took it upon itself, through the judiciary branch, to explain to the rest of us what they think the founders meant which sometimes seems to defy all particulars of applied logic. "It depends on what the meaning of 'is' is."

But probably the worst aspect is that the Constitution fails to provide for any penalties for those persons who are elected to positions established by the Constitution and after swearing an oath to "preserve, protect and defend" it, go and violate the Constitution. Time after time, a bill is passed by Congress and signed into law by the President which is applied to the people who are punished for doing in large part what comes natural for them to do. A convicted party then enters an appeal to the Supreme Court, which may take longer than the rest of his life to be heard, and may eventually be vindicated by the court finding the law to have been unconstitutional in its very construct. Nothing happens to those elected officials who came up with this disaster except to maybe watch their pet project go down in flames.

These officials once showed some respect for the restraint placed on them by the Constitution and the Bill of Rights. When Congress wanted to outlaw the private ownership of machine-guns, they knew that would be in violation of the Second Amendment so they decided to heavily tax the purchase of such weapons to the point of ludicrous inconvenience (define "infringed") rather than impose an outright ban. When Congress wanted to restrict the people's right to choose what they could put in their bodies, they knew the Constitution gave them no such authority so they changed the Constitution the only way authorized by it; they added the 18th Amendment and created the catastrophe known as "Prohibition" (the 18th was later repealed by the 21st Amendment). With the archaic "War on (some) Drugs" and all the gun-control laws passed since the "Decade of the Assassin" (1960's), we can see that all pretense of restraint has gone with the wind.

Therefore, I would like to propose another Amendment to the Constitution. When an elected official suggests, proposes, or enters a bill to bring about a law that is clearly unconstitutional on its face, anyone within earshot or who has a chance to read the document in question can call for a motion to have that official impeached immediately. With normal parliamentary procedure, there will have to be a second, and then a vote by all persons present with a show of hands as to determine the Constitutional standing of the proposal and the guilt of the person who made it. If a majority (50% plus one) determines that the proposed law is in fact unconstitutional, then the person determined to have made it is sent home - directly home, do not pass "Go," do not collect $200,000,000 in retirement and other benefits. The governor of the State that the official is from can appoint another until such time as an election can be held. This will also apply to those benevolent government officials who voted for or signed into law something that is later overturned by the Supreme Court on the same grounds.

Now I haven't worked out all the details yet and I can see some room for abuse if this proposed Amendment ever became part of the Constitution but I think there will be some reluctance to use it as much as there is a reluctance to use nuclear weapons. There is an aspect of Mutually Assured Destruction (MAD) if anyone ever tries to abuse this power to eliminate political opponents. It will certainly give those officials that take their oaths lightly a reason to pause for a second and think before they act...

Peter W. Wickham, Jr.
AKA The Ol' Grey Ghost

For further reading I would like to recommend Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush by Thomas E. Woods, Jr. and Kevin R. C. Gutzman.


John R said...

I think we would be better served by a fourth branch of the .gov, the assassins.

If any member of the other three branches of government exceeds their Constitutional authority, or encroaches upon liberty with an excess of red tape or bureaucracy, they are assassinated by the fourth branch.

Only problem is determining who keeps the fourth branch in line.

Anonymous said...


The fourth branch of the .gov is "We the People."

"But when a long train of abuses and usurpations,...,evinces a design to reduce (the people) under absolute despotism, it is their right, it is their duty, to throw off such government..."
U.S. Declaration of Independence

We don't have to assassinate (well maybe...) or overthrow someone else's government, but we must be prepared to throw one off our backs when it becomes too "heavy."

Since we all have the right to be equally armed, we keep each other in check (an imbalance is usually caused by government intervention anyway).

the pistolero said...

I tell you what, the more I read of Mr. Wickham, the more I like him...

B Smith said...

If they can ignore the Constitution they swore to 'uphold and defend', then I can ignore their silly laws that contravene it. It only matters if you care about being called a criminal, I guess. Consider the source.

Turk Turon said...

I second that!

An excellent proposal.

Anonymous said...

Jefferson and Madison had it right: state nullification needs to return.

Anonymous said...

SCOTUS interpretations of the 14th Amendment would nullify State nullification (remember what I said about the home team coaching staff officiating for the game?). I prefer secession. The American Colonies seceded from England. Mexico seceded from Spain. Texas seceded from Mexico. Texas later joined the U.S. and then seceded from the U.S. With all that history, SCOTUS, with seven Lincoln appointees sitting, decided that Texas secession from the Union (White v. Texas, 1865) was illegal. Something B. Smith said is applicable here...

Anonymous said...

While I admire the concept, I think that you are expecting the inmates to run the prison.

I like the assassin suggestion, but am afraid that it would quickly turn into a modern day Praetorian Guard.

I'm not sure what the answer is, but I think it involves people getting off their butts.

This site always makes me think, thanks.

W W Woodward said...

Altogether too many of our elected and appointed officials who take an oath of office look at that oath as merely a formality or the occasion of a photo-op for the media.

Once the oath is mumbled and the right hand comes down to sign the affidavit (suitable for framing) form, the memory of the contents of the oath usually fades before the ink is dry.

I was an alderman on the city council of my hometown for a two year term. I printed a copy of my oath of office and laid it on the table in front of me at each council meeting as a reminder of why I was sitting at the table. Needless to say, I became unpopular with my fellow alderpersons in short order when the meeting agendas included items that tended to cross the line of constitutionality.

City councils, county commissioners courts, state legislatures, and the united States Congress as well as all the bureaus and agencies appointed by any of the above are in the business of controlling the actions and limiting the freedoms of “we the People” who live within their jurisdictions and they do it with our money. We are hanged by the rope made from the hemp we grow. And, the Constitution as well as the oath to protect the Constitution is seen as nothing more, respectively, than “just a damn piece of paper” and a waste of breath.