- The Washington Times - Friday, April 2, 2010

ANALYSIS/OPINION:

Health care reform was rammed through Congress. What should we do? In 1842, Mellen Chamberlain interviewed 91-year-old Levi Preston, who had fought the British at Concord Bridge on April 19, 1775. Chamberlain asked if he had fought because of the Stamp Act. Preston said no. The tea tax? He never drank it. How about the great treatises of the time? He never read them. He said he spent his time reading the Bible, Watt’s Psalms and Hymns and the Almanac.

Why then had Preston fought at Concord? “Young man, what we meant in going for those Red Coats was this: We always had governed ourselves, and we always meant to. They didn’t mean we should.”

Our Constitution, recognizing that government tends to accumulate power, provides checks and balances. Federalism is the check of the states on the federal government. Making the case for the ratification of the Constitution, James Madison wrote, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” He explained the proper roles of the federal and state governments: “The former [federal powers] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Last week, Congress passed a health care act that both supporters and opponents say will put control of important aspects of our lives in the hands of the federal government. It is a mistake to think the uproar is merely about a health care act. Congress has diminished the states, making them in many ways mere instruments of its will, diminishing local freedom to experiment and producing near fiscal bankruptcy to both the states and the nation.

At least 36 states have introduced legislation against the implementation of the act. Those actions, known as nullification, fail to address the major problem and have limited chance of success. Nullification is designed to persuade Congress to alter its action; this Congress appears immune to persuasion.

Other states have sued, claiming that the act is unconstitutional. Those efforts likely will be futile because of the federal courts’ expansive reading of federal power.

Even if they are successful, repealing one act does little to address Congress’ habitual overreaching. The best course may be for the states to petition under Article V to amend the Constitution by calling a convention.

Addressing the concern that the central government would encroach upon the freedom of the people, Alexander Hamilton argued that the difficulties of governing the nation would force upon the central government “a spirit of accommodation,” but failing that, “the national rulers, whenever [two-thirds of the] States concur, will have no option upon the subject. By the fifth article of the [Constitution], the Congress will be obliged ‘on the application of the legislatures of two thirds of the States … to call a convention for proposing amendments which shall be valid … when ratified by the legislatures of three fourths of the states, or by conventions in three fourths thereof.’”

The initial draft of Article V would have allowed only the national government to propose amendments, but George Mason of Virginia objected that “no amendments of the proper kind would ever be obtained by the people if the [federal] Government should become oppressive.” Thus, the amendment process was modified to check the central government.

It is often objected that even an amendment convention could run wild with proposals. But there are answers to this objection. First, since the ratification of the Constitution, no convention has been called by the states because mere initiation of the process has been sufficient to prompt Congress to act.

Second, as Hamilton pointed out, whatever proposals - good or bad - the convention proposes do not become part of the Constitution unless they are approved by three-fourths of the state legislatures (or, if Congress prefers, conventions) - that is, 38 states must believe it is a good idea. Moreover, shouldn’t we, like the Founders, be willing to entertain some risk when we recognize that our rights are being trampled?

Patrick Henry wrote, “If there be a real check intended to be left on Congress, it must be left in the State Governments.” A state-initiated constitutional amendment, backed by grass-roots support, should be directed at restraining the abuses of the national government, thereby restoring the kind of self government intended by the Constitution.

Some have suggested adopting an amendment that limits Congress’ power under the Commerce Clause or repealing the 16th Amendment granting federal power to tax income or requiring the courts to consider the 10th Amendment’s reservation of undelegated powers to the states and the people. We favor an amendment that would clarify in some measure the respective domains of the national and state governments in the interest of maintaining the checks and balances that help secure individual freedom.

Mason has been proved right. Congress will do nothing to diminish its own power. If we hope to restore the proper, constitutional roles of Congress and the states, the states must petition Congress for an amendment to address the problem and restore for ourselves and our posterity what Levi Preston fought for at Concord Bridge - the right to self-government.

Gary Palmer is president of the Alabama Policy Institute. Harold See is an API senior fellow and former state Supreme Court justice.

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