Having sworn to “preserve, protect and defend the Constitution,” President Obama has now done what only a few weeks ago he refused to do and before that promised would never be necessary: He will at least temporarily allow Americans to keep supposedly substandard health insurance that remain illegal under the Affordable Care Act.
Whether a president can unilaterally amend or refuse to enforce a law legally ratified by Congress – this is not the first time he has tinkered with the signature “achievement” of his administration – is the kind of question fueling at least two movements designed to correct what conservatives rightly view as the federal government's increasing disregard for constitutional limits on its authority.
The success of either strategy remains to be seen, but one is clearly superior and more legitimate – at least for now.
Indiana State Senate President Pro Tem David Long, R-Fort Wayne, is one of a growing number of conservatives calling for a “convention of the states” that would propose a series of constitutional amendments intended to restore the balance between the federal government and the states. And while that proposal seems radical – it would be unique in American history – Long and others insist it's as American as the Constitution itself.
“The Framers expected us to use it, and they would be shocked to know we have never done it,” Long said, referring to Article Five of the Constitution, which authorizes either Congress or the states to propose amendments by a two-thirds vote. But as Long and others see it, the federal government and, often, its courts have usurped authority clearly reserved to the states.
The convention could rectify that, Long said, by proposing amendments that would unambiguously restore the balance of power the Founders intended to preserve through the 9th and 10th amendments.
The convention's agenda has not been determined, of course. But just this week Long spoke with the man many view as the godfather of the movement: radio talk-show host Mark Levin, who in his recent book “The Liberty Amendments” proposes 11 amendments that among other things would impose term limits on members of Congress and the Supreme Court, allow Congress or the states to overturn a Supreme Court decision within 24 hours by a three-fifths vote and impose limits on federal spending and taxation.
“There's a mountain of unsustainable debt. If we don't get hold of it, it will be unspeakable for our kids and grandkids,” Long said.
Although Long does not necessarily endorse all of Levin's proposals, he does agree on the need to repeal the 17th Amendment, which mandated the direct election of U.S. senators. Long believes the previous method of selection by state legislators gave states more influence over the federal government, as the Founders intended.
It would require the support of 34 states to hold such a convention 38 to pass any resulting amendments. And although Republican Mitt Romney carried only 24 states in the 2012 presidential election, Long said at least 26 states are expected to be represented at a Dec. 7 planning meeting at George Washington's Mount Vernon Estate.
Such a convention could of course also suggest amendments that could expand the federal government, not curb it. Which is why Long believes states should impose strict controls on what is open for discussion, and on what their delegates are authorized to do.
But the potential danger of not following those guidelines, Long said, is dwarfed by the other idea gaining support in some conservative circles: a strategy called “nullification,” which essentially calls for governors and state legislatures to disregard federal mandates they consider unconstitutional.
“That would be disastrous,” Long said.
But Dubois County resident D.K. Smith, a founding member of a statewide group called the “Freedom Makers Coalition,” disagrees.
“These are not different approaches. Even if the convention goes forward, it will take years. We may not get there if we don't do something right now,” she said. “We are supposed to be sovereign states. You can't just pass and change any laws you want to.”
No, you can't. But do we really want 50 governors and state legislatures deciding what's “constitutional”?
Ideally, American voters would know and respect the Constitution. Short of that, the convention approach is preferable – even though there is no guarantee new amendments would be respected any more than the current constitution is. If that were to happen, Smith's approach could go from being premature, to necessary, to downright inadequate.
“Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.”
The words of some tea party member? Nope. They were written by Thomas Jefferson in something called the Declaration of Independence.