Enforcement, Not Amendment, is the Answer

In his recent column, “I Want a Real Liberty Movement”, Timothy Baldwin has presented a very challenging argument in favor of a new constitutional convention. I believe, however, that his basic contentions do not stand up well to critical analysis.

I. Mr. Baldwin tells his readers that he

agree[s] with [Mark] Levin that the only way to change the jurisprudence of our constitutional law (specifically put, to redefine what the Courts have defined regarding Congress’ power under the commerce and tax power) is for the people to change it through amendment. To be clear, there is no other way to do this and fix the constitutional structure that encourages abuse of federal power.

Until certain federal and state powers are redefined in the Constitution by the States through Article V, Congress will continue to act accordingly (meaning, to regulate in all cases whatsoever), regardless of what pet remedies you think are the answer, like recalling public officials, voting, state nullification, the militia, informed juries, coordination, impeachment, civil disobedience, etc. None of these remedies correct the jurisprudence created by the Judiciary. None fix the inherent diffusive congressional power structure developed over time, which makes Congress essentially accountable to no one.

Unfortunately, this argument accepts as valid a very bad principle as the reason for the action Mr. Baldwin proposes.

The notion that “the jurisprudence created by the Judiciary”—which Mr. Baldwin doubtlessly recognizes as a false jurisprudence, or he would not be advocating amendments of the Constitution in order to set it aside—can be corrected only by various constitutional amendments is even more obviously false and pernicious than the false jurisprudence it intends to nullify through amendments. At base, the argument is self-contradictory. If the Constitution has to be amended, then the supposedly “false” jurisprudence is actually a “true” jurisprudence, because if it were false it would be unconstitutional, by definition, and could not require for its correction an amendment of the Constitution to which it has no legitimate relationship. On the other hand, if this jurisprudence is actually a false jurisprudence, then it has nothing to do with the Constitution ab initio, except to violate it; and therefore some remedy other than amendment of the Constitution would be called for. (As I have already examined what other remedies are available, in my book How To Dethrone the Imperial Judiciary, I shall direct the reader there for the details.)

The problem stems from the truly anti-constitutional—I should add “absurd” or even “idiotic”—notion that “the Constitution is what the judges say it is”. The Constitution is neither “correct” nor “incorrect”; it is simply what it is, to be deduced by right reason from what it says. A judicial opinion about the Constitution, however, can be correct or incorrect. Even the Supreme Court has admitted as much in the most palpable manner possible, by reversing itself on constitutional questions numerous times. See, e.g., Payne v. Tennessee, 501 U.S. 808, 827-830 (1991) (collecting cases). In these situations, we are entitled to ask, was the Court incorrect in the first instance, and correct in the second; or correct in the first instance, and incorrect in the second; or incorrect in both instances? How can one know, except by adherence to the rule: “the Supreme Court does not determine what the Constitution means; rather, the Constitution determines whether an opinion of the Supreme Court is correct or incorrect”? Must the Constitution be amended every time some majority of Justices—or, put more bluntly, “the fifth fool” on the Court—renders some dopey or dishonest opinion? If so, then judicial usurpation and tyranny have actually succeeded, and the Constitution has been overthrown. The record of the Supreme Court’s decisions—the so-called United States Reports, if not the greatest then surely the longest work of fiction in the history of the world—is actually “the constitution”; and the document known as the Constitution is nothing more than a blank slate on which the Justices write whatever comes into their heads. That, apparently, is what the advocates of a new constitutional convention accept as the predicament in which this country now finds itself. If that is the best these people can do, one must despair of any good coming out of a process of constitutional amendment which they mediate or in any way significantly influence.

II. But leave aside the problem of what American constitutionalism really means in terms of the relationship of principal and agent between We the People and their ostensible “representatives”, and focus solely on the practicalities of the process of amendment. If a new constitutional convention were convened under Article V, what amendments might it propose? The proponents of a convention say that its agenda can be controlled by law, so that it will not become a “runaway” convention. Perhaps yes, perhaps no.

But if it did turn out to be a “runaway” convention, proposed all sorts of amendments wholly inconsistent with any rational conception of “liberty” (that is, acted like the legislatures of Massachusetts, Connecticut, New York, New Jersey, Maryland, and California, to name a few contemporary “peoples republics” in what passes for “the land of the free”), and some or all of these amendments were eventually ratified, would the courts as they are now constituted declare those amendments invalid, because of the “runaway” nature of the convention? Very unlikely. How long have people tried to bring to the Supreme Court the question of the invalidity of the supposed ratification of the Sixteenth Amendment, without any result, notwithstanding the significant body of evidence in support of that conclusion?

If, on the other hand, the convention were not a “runaway” convention, the amendments it proposed might nonetheless be badly drafted, and therefore could not be supported, even by “the liberty movement” itself. (And some of the proposed amendments I have seen I for one would never support.) So the entire effort could turn out to be largely a waste of time and effort.

If the convention were not a “runaway” convention, and the proposed amendments were good, they would still have to be ratified by three fourths of the States. How long that would take is anyone’s guess.

If one or more of those amendments were ratified, they would then have to be implemented. At that point in time, the compositions of Congress and of the courts would be similar to what they are now—in personality types, if not actually the very same persons—because (according to Mr. Baldwin) “recalling public officials, voting, * * * [and] impeachment” are nothing more than “pet remedies”, and therefore whatever reforms those actions could effect would not have been achieved by the members of “the liberty movement” who spent their time working on behalf of constitutional amendments instead.

A Congress composed of individuals who score near the top of “the prostitution to special interests index” will not accept the diminution of the unconstitutional power which (as Mr. Baldwin points out) “makes Congress essentially accountable to no one”. Such a Congress will never change its ways on its own initiative. Instead, it will merely pass “stealth legislation”, artfully drafted to attempt to sneak around the limits the new constitutional amendments interpose. Whether it succeeds in this deception, and whether old statutes which the new amendments arguably negate will be overturned, will depend entirely upon the courts—because that, of course, is the way of “the jurisprudence of our constitutional law” which Mr. Baldwin accepts as so controlling that it can be changed, or even challenged, only by amendment of the Constitution. Being the appointees of a rogue Presidents and Senators , the judges will oppose these amendments in principle, and in practice will do everything possible to avoid deciding cases that apply them, or to construe them in some grossly deformed manner. The judicial dishonesty that created the problem supposedly necessitating the new amendments will pale into insignificance in comparison with the judicial dishonesty that will be employed to render those amendments as innocuous, if not as meaningless, as possible. So the all-important question remains to be answered by the people in “the liberty movement” who are proposing a constitutional convention: “Exactly how are the new amendments to be enforced—in a timely and effective manner, if at all—if the first level of totally corrupt enforcers in Congress and the courts simply refuses to enforce them as they should be enforced?

In any event, even with a completely honest Judiciary at every level of the federal system, it will take Heaven alone knows how long to have each of the amendments “construed” and “applied” by the courts. Years will be consumed as various “cases” and “controversies” wend their ways from United States District Courts to United States Courts of Appeals, or from State trial courts to State intermediate courts to State supreme courts—then many months more while petitions for writs of certiorari go to the Supreme Court. The Supreme Court accepts vanishingly few such petitions, however. And doubtlessly it will be reluctant to accept one on the interpretation and application of a brand-new amendment until the crucial controlling issues have been identified, fought over, and clarified in several lower-court decisions. Even then, the “cases” and “controversies” finally heard will be limited to their specific facts. So only bits and pieces of the total effect of each amendment will be dealt with in each “case” or “controversy”. To determine the full meaning of an amendment could thus take decades, or even longer. (How many provisions of the Constitution as it now stands are still not completely “construed” in the Supreme Court’s opinions?) And for all anyone knows, some or perhaps many of these “cases” and “controversies” will be argued by incompetent counsel, or the opinions in them written by incompetent Justices or their incompetent law clerks, making a first-class rat’s nest out the results.

So I fail to comprehend how a new constitutional convention can be viewed by anyone as a plausibly workable remedy for the problems it is supposedly designed to address. To me, it looks much more like a “crap shoot”—with the dice heavily loaded against the shooter, at that.

III. Now compare, in a few particulars, a new constitutional convention to revitalization of the Militia. I suppose I should do this in any event—but I am especially encouraged to take on the task by Mr. Baldwin’s disparaging inclusion of “the militia” in his catalogue of “pet remedies” that he apparently believes are so inferior to a convention that all efforts in their direction people in “the liberty movement” should turn instead to a convention. (Actually, I cannot become too exercised about this, because—even though Mr. Baldwin does not seem to recognize the logical necessity of it— amendment of the Constitution is just as much someone’s “pet remed[y]” as any of the other “remedies” on his list. But, on the other hand, Mr. Baldwin has provided me with “a teaching moment” which I should hate to waste.)

A. If “the militia”—by which I presume Mr. Baldwin means “the Militia of the several States” which the Constitution incorporates into the federal system— are anyone’s “pet remedies”, they are the Founding Fathers’ “pet remedies”; for the Founders included the Militia in the Constitution as “being necessary to the security of a free State”, a characterization which they did not append to the process of amendment in Article V (or anything else). Importantly, the verb “being” is in the present tense, because the Militia are always “necessary”. An amendment of the Constitution, while surely useful, is by its very nature an extraordinary event which the Constitution presumes may occur in the future, but does not expect to occur every day (although, if Mr. Baldwin is right to imply that amending the Constitution is the only way to correct “the [faulty] jurisprudence created by the Judiciary”, then America could conceivably need a continuous process of amendments for every constitutional blunder of the Supreme Court in each of its Terms, as well as for all of the unconstitutional decisions the lower courts hand down every year that are never reviewed by the Supreme Court). Unlike a constitutional convention, as permanent constitutional institutions the Militia are fully capable of exercising their authority every day of every year. And their authority is as extensive as the laws of both the Union and the States—where the term “laws” includes the Constitution itself. True enough, the Militia cannot amend the Constitution. But they can execute (that is, enforce) the Constitution according to its true (or, as some people like to say, its “original”) intent, and in doing so largely obviate what Mr. Baldwin rightly deprecates as “the [false] jurisprudence of our constitutional law”. For “[t]he [false] jurisprudence of our constitutional law” is of little moment if it cannot be enforced, because the Militia refuse to enforce it, as the Constitution would require them to refuse.

B. Application to Congress for a constitutional convention requires two thirds of the States. Adoption of a proposed amendment cannot be effected by less than three fourths of the States, let alone by a single State. Ratification of a proposed amendment in one State does nothing to help that State or any other State right away. Ratification in one State does not allow that State to operate under the proposed amendment. Ratification in one State does not show what the effect of adoption of the amendment would be even in that State, let alone in other States or throughout the country. And, although ratification in one State may encourage other States to ratify in their turn, it also may not, as the history of the proposed but never ratified Equal Rights Amendment proves.

Conversely, revitalization of the Militia can be accomplished in one State at a time, simply by the passage of a statute. One State does not need the concurrence of any other State, or of the General Government, to revitalize her Militia, because the Militia are “the Militia of the several States” taken as individual polities, not as a collective. Revitalization of the Militia in one State helps that State immediately. And revitalization of the Militia in one State shows other States exactly what can in fact be done, because it is being done, and therefore encourages them in the most instructive manner possible to revitalize their Militia, too.

C. The ultimate deficit this country faces is one of time. T-I-M-E. Time. There is too little time to engage in a process as lengthy, complex, and problematical as will involve and grow out of a constitutional convention and its aftermath. A major economic collapse is now confronting the United States, and even the entire world. It will not take ten or twenty years to come to its poisonous fruition. Anyone familiar with the alternative financial media —and even much of the “mainstream” media, as well—knows that the Federal Reserve System and the United States Treasury are in deep trouble. Indeed, “central banking”, “fiat currencies”, “monetization” of public debt, and Ponzi schemes bottomed on “fractional reserves” (or in most instances fictional “reserves”) are disintegrating across the globe. Most crucially, the status of the Federal Reserve System as the de facto “world central bank” and of the Federal Reserve Note as the de facto “world reserve currency” is threatened. A collapse of the monetary and banking systems will result in depression, hyperinflation, or depression coupled with hyperinflation. No State is adequately prepared at present to deal with the economic chaos, social dislocations, civil unrest, and civil disobedience which will then ensure. And no possible amendments of the Constitution can prevent this collapse from occurring, even if they were ratified tomorrow, because the economic die has already been cast, and irretrievably so.

The present situation is very much like a scene which might have taken place on the doomed liner Titanic: The ship has struck the iceberg; it is going down fast by the head. In the Grand Salon, Mr. Andrews, the ship’s designer, meets with a group of marine engineers and skilled workmen. They pour over blueprints, plans, specifications, engineering tables of one kind and another, and lists of available materials and tools. Then they announce to Captain Smith that, in principle, they can save the ship, by shoring up some old bulkheads, building some new ones, and concentrating the pumps in a certain area. Captain Smith asks them how long it will take. About twenty hours, Andrews replies. Unfortunately, at that moment Titanic has only an hour left to live. The movement for a constitutional convention presents an exact parallel. Arguably, if everything went according to plan (which raises an host of other questions) a set of good amendments could, in principle, go far towards saving this country. But it would take five, ten, or twenty years to see significant results. And America can count on far less time than that before the economic roof falls in on her head.

Actually, the Titanic scenario is far more realistic, because it involves solely a problem of engineering, a solution for which can be worked out mathematically, and an accurate prediction of its effects made. Moreover, everyone on Titanic would have wanted the problem to be solved as quickly as possible, because if the work could have been done Titanic would not have sunk. Such a unanimity of purpose among Americans, especially those high up in the political class, does not exist with respect to the proposal, ratification, or implementation of new amendments truly favorable to “liberty”. And, in any event, no one can predict the actual effects those amendments may have when implemented. But it is certain that they can have no effect whatsoever on the present economic situation and its immediate consequences, certainly not in time to correct the underlying problem or significantly to mitigate its most disastrous effects.

America needs a solution to this problem—even a partial and imperfect solution—that can be put into operation right now—or as I like to say, immediately if not sooner. The Militia are “necessary to the security of a free State” in every sense, including “economic security”. However, they are moribund. But they can be revitalized in any State, and in every State, simply by the enactment of a single State statute in each jurisdiction. Revitalization of the Militia does not constitute or depend upon “nullification”, “interposition”, or “civil disobedience”; neither does it require or entail violence. Anyone who suggests otherwise is simply ignorant of the subject- matter.

For example, adoption by a State of an alternative currency in anticipation of the collapse of the Federal Reserve System does not turn on establishing the unconstitutionality of the banking-cartel in the courts, or ratifying a new constitutional amendment under the aegis of which the cartel would have to be disestablished. For, whether that System is constitutional or unconstitutional in whole or in part now, or could be outlawed by some new amendment later on, each State at this very moment retains reserved powers under the Constitution to maintain her own Militia, to make gold and silver coin a tender in payment of debts, and to administer her system of alternative currency through her Militia, without any consideration of the Federal Reserve. Similarly, any State can insulate herself from the national para-military police state being set up under the Department of Homeland Security by revitalizing her Militia and incorporating all State and Local “law-enforcement” and “emergency-management” agencies within her Militia— whereupon no official of the DHS can give any commands to those agencies, because no official of the DHS can be an “officer” in the Militia, inasmuch as the Constitution explicitly reserves to each State the authority to appoint all of the “officers” in her own Militia (other than the President of the United States). These actions can be taken right now, without the need to ratify any new constitutional amendment, simply by the passage of a single statute in each State (if the matter is handled competently), and even within what Mr. Baldwin describes as “the jurisprudence of our constitutional law”. So, until these relatively simple actions have been taken in at least one State, and their merits scientifically falsified by the experiment’s failure to produce the desired results, why would any prudent person want to eschew them in favor of a highly problematic program aimed at a new constitutional convention?

Correctly revitalized, the Militia will prepare the people in each State for dealing with all sorts of emergencies, including economic collapse, monetary chaos, civil disorder, massive food shortages, epidemics, natural disasters, and so on. True enough, it may be that revitalization will help each State in her own particular way, and perhaps at first only a single State. But “it is better to light one candle than to curse the darkness”. And it may be true that revitalization in one State will amount to just the first step in what ends up as a long and difficult political and legal march through the rest of the States. But (as the Chinese proverb has it) “a journey of a thousand li begins with a single step”. After all, although Titanic sank, and hundreds died needlessly because not enough lifeboats were available, it was nevertheless a blessing that some lifeboats were at hand, and that some passengers were saved. Similarly, a “real liberty movement” (to use Mr. Baldwin’s term) may not be able to revitalize all of the Militia in all of the States, or to revitalize any of them in any of the States to the greatest possible degree, in time to fend off all of the very worst effects of the coming economic collapse. But whatever is accomplished will have some salutary effect, somewhere, for some people. And something achieved on that score is better than nothing—and certainly is a far more realistic and attainable goal than the pie-in-the-sky promises offered, without any assurances whatsoever, by the proponents of a new constitutional convention.

Personally, I am sick and tired—as no doubt are the readers of this column—of watching “the liberty movement” commit suicide with the death of a thousand cuts at its own hand, day after day, year after year. But launching another “children’s crusade”, which even if successful in obtaining its objective at some unpredictable time in the future could not possibly deal with the great danger now confronting this country, is quixotic behavior at best.

Yet the more I observe this situation, the more I sense that perhaps Field Marshal Gerd von Rundstedt was sapient in his two negative replies to Field Marshal Erwin Rommel, as depicted in the Twentieth Century Fox movie “The Desert Fox”—the first, when Rommel (played by James Mason) suggests that von Rundstedt (played by Leo G. Carroll) should approach Hitler and try to convince him to change his insane strategy, and von Rundstedt begs off; the second, when Rommel later tries to bring von Rundstedt into the German resistance-movement’s plan to depose Hitler, and von Rundstedt declines. As applied today in this country, the lesson “The Desert Fox” teaches is that it may be too late to save “the liberty movement”, and that the wise man who has tried his best in the past to do so, but without a scintilla of success, is now entitled to stop beating his head against a brick wall, and instead to sit back and view the entire matter with serene detachment, as merely another sorry episode in the long chronicle of mankind’s follies. Personally, I am not yet ready to embrace this lugubrious conclusion. But the more I observe “the liberty movement” at work today, the more I wonder whether perhaps von Rundstedt might have been right, after all.