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RESPONSE TO AN ARGUMENT: "THEY DON'T FOLLOW THE CONSTITUTION ..."

 

By Timothy N. Baldwin, JD.
October 21, 2013
NewsWithViews.com

(IMPORTANT ANNOUNCEMENT: Liberty Defense League is hosting an Article V educational seminar with constitutional scholar, Rob Natelson, on October 21, 2013 (Monday) at 7pm in Kalispell, MT. Get your tickets now for only $5! Go to www.stateconventionsolution.com for more. This is a MUST-ATTEND event!)

The argument that “they don’t follow the Constitution now, so what makes us think they will follow an amendment” is unfounded and misstates how our constitutional system actually works. It fails to acknowledge what constitutionalism is all about and fails to consider how amendments would provide moral and political justification in the future for remedies needed in response to further government abuse. Words do have meaning, and meaning ultimately must come from the people. It is our duty to define and redefine as necessary.

As I have written in The Fallacies of Anti-Article V Advocates and What Can the People Do To Restore Liberty, Constitutional Amendment (Part 6), the words of the Constitution invite and even require interpretation. This is why the Judiciary was a third co-equal branch of the federal government. James Madison described the nature of the judiciary’s role in the Federalist Papers and explained that the “lines of sovereignty” (between State and federal power) would be the most difficult issues to determine from an interpretational standpoint. Madison and others admitted that it is impossible to draw that “line” definitely.

Added to this constitutional reality is the fact that the judiciary has a host of interpretational methods they can use to apply laws and the constitution given whatever facts are presented in the cases at hand. United States Supreme Court Justice, Benjamin Cardozo, wrote about this well in his book, The Nature of the Judicial Process (1921). Interpretation is a science (the Enlightenment Philosophers explained this as well)—one that is without mathematical certainty and permits flexibility depending on many factors. Hamilton said the same in FP 85, saying, “[there are] rare instances in which a political truth can be brought to the test of a mathematical demonstration.” No, politics and constitutional law is not as simple as 1 plus 1 equals 2, especially regarding “lines of sovereignty.”

So, here is what we must accept if conservatives are going to make any difference in the future of our constitutional system: the Constitution allowed for and perhaps even required flexibility over time regarding the “lines of sovereignty.” There is no “going back” but only going forward when it comes to jurisprudence. The Founders certainly foresaw this reality, and that is exactly what happened. We must see that the Judiciary has used, not ignored, the Constitution to explain its meaning.You may not like it, but this is the authority it has under the Constitution.

To argue “they don’t follow the Constitution, so I don’t want to amend it” is illogical and actually refutes what constitutionalism is all about. Would one of these constitutionalists argue that the Founders should not have created a Constitution at all? Would one of these constitutionalists argue that the Bill of Rights should have been abandoned after ratification of the Constitution? Do they not admit that having words in the Constitution hold meaning?—not just to limit the government as some sort of potted plant, but moreover to provide the people justification for political actions they may take in the future in response to continued government abuse. No political action is made in isolation. They have context and historical significance, and these things come by way of constitutional words.

In reality, amending the Constitution has proven to be a good political response. In practice, amendments have resolved many previous disputes and have good staying power. The following amendments prove this point of ending prior political disputes: the 11th amendment overturned one single United States Supreme Court decision, Chisholm v. Georgia, (1793) and the Citizenship Clause of the 14th amendment overturned part of the United States Supreme Court decision, Dred Scott v. Sandford, (1857).

This words-have-meaning approach is what the colonies held prior to creating and signing the Declaration of Independence. Had they held the attitude presented by many anti-Article V advocates, they would never have attempted to correct their political plights through the use of words in form of petitions, laws and constitutions. But knowing the purpose of these, the colonies enacted them regardless of what they thought or knew Great Britain’s response would be (i.e. ignore). Had they not done this, they would not have had the point-by-point justifiable grounds to declare their independence and gain support from foreign nations to support their cause.

Keep in mind as well, the Anti-Federalists argued what some anti-Article V advocates are arguing, that we should not amend the constitution because the federal government will ignore the Constitution and assume power unto itself. Their situation was not so unlike ours. Madison observed Congress’ “ignoring the Article of Confederation this way: “[t]he public interest, the necessity of the case, imposed upon [Congress] the task of overleaping their constitutional limits.” (FP 38.) Thus, the struggle between State and Federal power was no better in that day as it is today.

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Yet, the only way their political demise could be corrected was by amending their constitution, and it is the history of those words that we use today to justify our efforts in an Article V amendment convention—or any other political remedy. Had the 1787 generation not put their intent and purposes in words in constitutional form, their posterity would have no constitutional or philosophical grounds to reclaim or restore those liberties.At least, posterity would have a much more difficult time in laying the groundwork for their actions without the prior actions of their ancestors. Therefore, we owe to our posterity the same effort to use the constitution and the power of the people to correct our political plights just as the founding generation did for their posterity.

What good can come from the philosophy that “since government doesn’t follow the constitution that the people should not try to fix their problems through the constitution”? None! It is a misguided, incorrect and lazy attitude towards our political existence. In short, it is our duty as self-governing citizens in the United States to use the constitutional process to limit government and to redefine the perceived errors of the federal government.

If you appreciate Tim’s work, please visit him at www.libertydefenseleague.com. There you can “like” him on Facebook, sign up for his articles, donate to his work, and more.

2013 Timothy N. Baldwin, JD - All Rights Reserved

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Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.

Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.

Web site: libertydefenseleague.com

E-Mail: tim@libertydefenseleague.com


 

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Added to this constitutional reality is the fact that the judiciary has a host of interpretational methods they can use to apply laws and the constitution given whatever facts are presented in the cases at hand.