A Federalist Manifesto

Chapter 1 – Overview: What is past is prologue. William Shakespeare

"‘V anity of vanities ,’ says the Preacher...all is vanity...there is nothing new under the sun."

Ecclesiastes 1:2, 9, circa 10th century B.C.

Every book has a beginning. Mine started as a gaming simulation. By gaming, I mean role playing an actual or hypothetical event for which the debate follows the direction determined by those who participate. Much like the board games we play as children, gaming has been around for centuries. For example, in the 19th century the Prussians used them to plan military strategy, and from there it spread throughout Europe and to the United States. In the various courses I have taught, my students have done a number of gaming scenarios: Model UN, mock trials, bill-writing scenarios, and as this book describes in detail, a convention of states. In essence, it is simply another tool teachers can use to help students explore subjects of interest.

The reason this particular scenario is of interest to me is because it is a movement that is gaining ground. It is called an Article V Convention, otherwise known as a convention of states. I first heard about this while listening to the Mark Levin Radio Show in 2013. He was promoting his new book, The Liberty Amendments. I thought a mock convention might be something useful for my Advanced Placement (AP) Government class and I introduced it the following spring. Students take about two weeks in May to research and discuss possible amendments to the Constitution. I have found it a nice way to conclude the school year; student discussions and perspectives are often interesting, and outcomes vary from year to year.

What makes this book unique is that it explores this idea from the standpoint of having been tested in the classroom. What began six years ago as a way to promote debate, became an idea to turn this into a book. The ideas and research herein draw from over two decades experience as a government and history teacher, as well as from my observations in operations and strategic planning as a United States Naval Officer and a lifelong interest in current events.

There are two audiences I hope to reach. The first is government teachers and their students who are looking for in-depth analysis of particular political issues which can be used to further explore set topics. For this reason, I take some time in the introduction to explain how this book can be used in the classroom. I have also included an appendix, which provides a gaming scenario that teachers can adapt for use in their classroom. The second audience is equally important. For those who are interested in politics and history, and who want to learn more about how the interpretation of the Constitution has evolved over time, this book brings Levin’s work up to date. Considerable changes have taken place since President Obama’s second inaugural, and the need to address those challenges through reasoned debate is more pressing than ever.

Fundamental to this discussion is the observation that the underlying problem with the federal government is that politicians are trying to do things at the national level that our Founders argued should be done by state and local governments. It is local and state governments that are closest to the people, and so they are the ones that are supposed to be most responsive to their citizens. In contrast, the Constitution is designed to prevent the accumulation and abuse of power by any one faction (clique) in the federal government. In other words, it is hard to get things done. For this reason, it is only meant to address those major national issues that the states are unable to address on their own:   system and foreign commerce.

By ignoring the parameters and constraints set forth in the Constitution, our national government has become involved in issues it is not designed to address, which is why it has become impossible for it to function. Furthermore, the federal government has starved state governments of necessary revenue. This is why the central themes behind the movement for a convention of states include imposing fiscal restraints on the federal government and limiting its power and jurisdiction. As 15 states have passed a resolution to call for a convention of states, and another eight states have passed a resolution in at least one chamber, this is a discussion that should be taken seriously.[1]

However, the concept of a convention of states is not new. In fact, the first such call for a convention dates back to the 18th century, and over the past two centuries, every state except Hawaii has issued an application for a convention. The most recent requests include a call to consider the reapportionment of state legislatures in the 1960s, and in the 1970s and 1980s, some states sought a convention to require a balanced federal budget. However, these have been strongly opposed by left-wing groups and they never achieved the applications of two-thirds of the state legislatures.[2]

While left-wing groups argue that a states’ convention is a radical idea that could lead to dire consequences, this is not what my experience suggests. In six years, only three amendments have ever received the three-fourths necessary for ratification and only two, term-limits and the repeal of the Seventeenth Amendment, have passed more than once. Those are hardly revolutionary changes. More importantly, the scenario serves as a vehicle for discussion, helping students to think about the Constitution and the role of government. Indeed, I believe if the states actually were to call a convention, the result is likely to produce no more than a national conversation about what we expect government to do. Keep in mind that students are more open-minded than most adults and they carry little of the political baggage that actual delegates would possess. Furthermore, this gaming scenario is concluded after a year of studying the design of the Constitution and the current defects in our government. As such, the success of amendments in this gaming scenario probably overstates the likelihood of ratification by three-fourths of the states. Unless, that is, a crisis precipitates the need for a closer examination. I believe that moment is at hand.

Perhaps most importantly, amendments are The Way to address defects, such as they exist, in the Constitution. As Washington wrote in his Farewell Address, "If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates." A convention of states was prescribed as one way to amend the Constitution a for very good reason; namely, it serves as a check on the national government and it provides a means to establish a balance should those entrusted with its administration...(not) confine themselves within their respective constitutional spheres. Of particular concern has been the hyper-politicization and partisanship over prospective Supreme Court nominees, which suggest this balance is out of kilter. Washington warned us of this, as well: Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit.[3]

Although Levin’s discussion of The Liberty Amendments may have served to inspire this work, I purposely did not examine a copy until I had finished writing. All the research herein has been conducted independently, the conclusions are my own, and the similarities, such as they exist, are incidental. By examining events since Levin’s book was published, I found that if anything, it reinforces his conclusion that a convention of states is the only way to repair the balance the Constitution was designed to establish. At least, that is, the only nonviolent way if we are to remain a society that values liberty. Since we think differently, we form associations of like-minded people called "factions." If we try to eliminate these factions we are, in essence, undermining liberty. For liberty is to faction, what air is to fire, an element, without which it instantly expires. It is thus sown in the nature of man. The Constitution mitigates, or reduces, the ill-effects of these factions by referring the great and aggregate interest...to the national, the local and particular, to the state legislatures.[4] Thus, if we seek to nationalize all issues the result will be to magnify factions and increase division. Yet, if we attempt to extinguish factionalism at the national level, the result will be chaos or tyranny, or both. This is the fundamental problem that federalism, or a division of powers between the national and state governments, is meant to address. 

Making government relative to students is always a challenge. While they enjoy current events, they are less thrilled about the philosophy behind our government and the mechanics of how it functions. Creating this as a gaming scenario tries to address this. In order to make it useful as a resource to both teachers and students, I have divided the proposed amendments into chapters, along with a philosophical and historical explanation behind each of the proposed amendments. The book can be used either as an overview for what might be discussed at a states’ convention, or as a means to examine one aspect of the Constitution in-depth. In using the Model UN format, I would suggest the students conduct the seminar without having first read the actual chapter. After debating a specific amendment, they can then go back and read the justification as a way to reflect on their discussions. The book is also useful in a Socratic Seminar format, either in its entirety or simply to examine a single chapter. Partly for this reason, there is a repetition of ideas in this book that other authors usually try to avoid. As a teacher, we know that students often lose their focus, that they quickly forget what they have learned, or that they struggle to make associations when an idea is presented in another setting. Thus, repeating things in a different context reinforces key ideas. Furthermore, while each scenario is interconnected to reinforce the major themes of the Constitution, each chapter is also a stand-alone lesson. Therefore, repetition is necessary if related themes in the book have not been covered.

Each chapter in this book ties into one of the six major principles found in the design of the Constitution. This is the subject of Chapter Two: popular sovereignty, limited government, separation of powers, checks and balances, federalism, and judicial review. Chapter Three examines how the growth in the power of the national government has undermined federalism, so it proposes an amendment to limit federal spending and taxation. Chapter Four addresses what many today would think unconscionable, but which the Founders had simply assumed: that private property is an inviolable right, that a market economy is the best way to promote prosperity, and that the government should not be in the wealth redistribution business. Chapter Five may be equally controversial: drawing from the Virginia and Kentucky Resolutions, this proposal would give the States a veto over federal court rulings, laws and regulations that are unrelated to Article I, Section 10 (powers prohibited the States). Chapter Six restores a check on popular government by repealing the Seventeenth Amendment, which made the Senate subject to popular vote. Chapter Seven discusses another contentious issue; namely, what happens when the Free Exercise Clause intersects with other constitutional issues? Chapter Eight draws from one of the most popular reforms being proposed, which is term limits for Congress. Chapter Nine focuses on an important constitutional check on the president; namely, Congress was given the power to declare war and it has abrogated its responsibility to perform its duty. Chapter Ten offers alternative amendments for students to consider. Contrary to the amendments that are explored in-depth in the previous chapters, these amendments highlight Progressive reforms that would seek to expand the role of the national government. The Appendix offers a sample handout teachers can give to their students to prepare for the gaming scenario. To make the printing of this book more affordable, I have partnered with izzit.org to make the handout available online. Teachers can download it for free using the web address on the Appendix page. Taken holistically, they are representative of what might be argued at a convention of states.

Current events are embedded throughout the scenarios. The reader is prompted to consider the national debt, business regulations, the minimum wage, the impact of the coronavirus pandemic, political corruption, the environment, health care, immigration, impeachment, the separation of Church & State, military action, the Electoral College, what a new constitution might look like, the Second Amendment, equal pay, police shootings, patriotism, and much more.

However, for those looking for solutions to today’s problems the reader will be disappointed. This book does not seek to do that. While it acknowledges the challenges of dealing with the impending crisis in entitlement spending, it does not suggest how to resolve it. It does not end or create any programs. It addresses, but it does not solve the problem of illegal aliens flooding across our border, and all the ramifications that accompany that issue. Yet, the Constitution does not solve these problems either. These issues require policies. In contrast, the Constitution simply establishes fundamental principles about who has the authority to make those policies, and what limits are placed upon those decision makers. To use a common phrase, government is basically about who pays, who benefits, and who decides. What this book explores is who should be making those decisions: State and local governments and institutions, or the federal government? The central thesis of this book is that, on most matters, it should be the former. Hypothetically speaking, if a convention of states were to adopt these amendments, I believe, in time, these problems would eventually correct themselves, or at least become manageable. The process will be difficult and painful, but when borrowing is limited and everyone is made to pay, and the decisions about who receives those benefits are made by persons who live close to those who are affected by those decisions, I believe it more likely that all of us will benefit.

The arguments made herein rely on the wisdom of the Founding Fathers. For central to this thesis is that there is no better place to look for improving our understanding of our government than by examining its foundation. To paraphrase Madison, our Constitution is designed the way it is because we are not angels, nor are we governed by angels. Human nature is consistent, and experience was their guide. For this reason, their views are as valid today as they were more than two centuries ago.

The challenge, which Madison identified, was that In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.[5] While the system they designed worked for most of our country’s history, the great difficulty has been laid bare for all to see. In adding a provision to enable useful alterations, the Founders showed foresight in Article V, for it "equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience of one side, or on the other."[6] For as certain as night follows day, there is no way that in today’s political environment, two-thirds of both houses of Congress would propose amendments which seek to reign in the national government.

In choosing a title for this book, I decided upon A Federalist Manifesto. In part, it is a play on Marx’s "The Communist Manifesto. A manifesto is a public declaration of opinions, and the views expressed herein reflect a belief that federalism is the key to improving our government. The proposed amendments, used as a vehicle for discussion, stem from my reading of history. They are a sincere belief that they are not only appropriate, but necessary to protect our republic. I specifically chose A" instead of "The," because unlike Marx, who wrote with certainty about history, the words of Benjamin Franklin in support of the Constitution are far more convincing: I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.[7] First, Mark Levin’s The Liberty Amendments was the first comprehensive treatment of this subject, so if anyone deserves The it is him. Second, I admit that minds more learned and capable than me would strongly disagree with these proposals. Indeed, many of the proposals may be viewed as heretical. Therein lies the irony. For most of our country’s history, these views would have been seen as political orthodoxy. It is only since the Great Depression that opinions on these matters began to change significantly. Nevertheless, it is through the open debate that we can learn from each other. This book should be viewed in this context.

Why is it important we debate these matters? In the current political climate, we really are between Scylla and Charybdis. (You remember Odysseus, correct?) The central problem is that while the government has been very good at providing order, it is no longer able to control itself. In addition, Democrats and Republicans are so busy fighting one another that government has become dysfunctional. Yet, they are not the problem. They are symptomatic of the problem. We are the problem. For What is government itself, but the greatest of all reflections on human nature?[8] This book aims to explain how we arrived at these crossroads, and how we can navigate through this morass.

We now stand at a precipice. The shocking video of the death of George Floyd on May 25, 2020 by a member of the Minneapolis police department as three other officers stood by sent shock waves across the country. In many cases, peaceful protests were hijacked by radicals who employed violence: vandals looted and burned businesses and tore down statues, as mobs took over streets, threatened citizens, and attacked police by hurling frozen water bottles and bricks. Innocent people were killed.[9] One leader of the Black Lives Matter movement in New York seemed to summarize the situation when he said, "If this country doesn’t give us what we want, then we will burn down this system and replace it." He declined to clarify whether this was figurative or literal, but the statement was symbolic of a cultural revolution.[10]

Some historians have said as much. Victor Davis Hanson, a senior fellow at the Hoover Institution and a professor of classics and military history, observed that cultural revolutions rarely end as their architects intend. Unlike our own political revolution, cultural revolutions attack the very symbols of society that help bind a nation together. This makes them far more violent. Analogies are complex and imperfect, yet there are many to draw from. Parallels can be made to antiquity, where Athenians conducted mass executions – on majority votes of the people. In the modern era, some of the more infamous examples include The Reign of Terror during the French Revolution, Mao’s Chinese Cultural Revolution, Lenin and Stalin’s Bolshevik Revolution, and the struggle between communists and Nazis that ultimately brought Adolf Hitler to power. Eventually, these revolutions consume themselves. They also create dramatic pushbacks, so we never know how it will end. Yet, as these cases show, the cost is sometimes extraordinary, and the damage can be irreparable.[11] The probability is that our current cultural upheaval will not end well. Its roots run deep, and its advocates are well-represented in universities, government and the media.[12] Although a violent solution may be forced upon us, I do not accept that path is inevitable. Indeed, the purpose of this book is to emphasize there is a peaceful way out of this abyss; not by remaking the world, but by mending our republic.

It is inauspicious that the American public has not been so divided since the Civil War. As we know, A house divided against itself cannot stand.[13] Indeed, due to the ideological nature of this conflict, it could be argued it has never been this bad. Lest we experience a similar fate, or perhaps even one that is worse, a serious debate about what we can reasonably expect from government is long overdue. That debate begins with understanding the way the system is designed and then trying to work out our differences together. Otherwise, it is as Washington predicted in his Farewell Address:

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension has perpetrated the most horrid enormities...The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty...It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.[14]

This is the predicament we find ourselves in. Perhaps we should have paid attention to Washington’s warning. Unfortunately, we have not. That is not our nature. This is why There is nothing new under the sun. In summary, the Constitution cannot ...prevent our nation from running the course which has hitherto marked the destiny of nations.[15] That is up to us. And perhaps, just maybe, a solution could be found with a convention of states.

Chapter 2 – The Basic Design of the Constitution

"I n framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself."

James Madison, Federalist 51, 1788

Discussion Topics: Order and Liberty, Popular Sovereignty, Enumerated Powers (Limited Government), Separation of Powers, Checks and Balances, Federalism, Judicial Review

A Balance between Order and Liberty

Teaching students about the Constitution begins with understanding what the Founders were trying to accomplish and how they designed the system to accomplish those ends. As noted above, the great difficulty was to first enable the government to control the governed; and in the next place oblige it to control itself.[16] In other words, the Framers intended to strike a balance between order and liberty.

When drafting the Constitution, the Founders were quite familiar with the British model. Unlike most modern states, however, the British constitution is not codified (systematically arranged) in a single document. Instead, it is based upon all the previous Acts of Parliament, court rulings and conventions. For example, Magna Carta is part of their constitution, as is the English Bill of Rights. As such, it is living document in that it is easily adjusted to the times.[17] These laws, charters, and decisions are designed to protect British liberties and to determine who has the authority to do what. Nevertheless, as our colonial history reveals, the British constitution was an insufficient check on the abuse of political power.

It is interesting to note that of the 27 specific complaints listed in the Declaration of Independence, none had to do with social or economic problems in the colonies; instead, all of them addressed a violation of political liberties by the British crown.[18] In examining the defects in the British constitution, the Founders saw the shortfalls not in the documents and rulings, but in human nature.[19] Instead of a living document, they drafted a constitution to endure for the ages by addressing our human shortfalls. Given mankind’s fundamental flaws and the tendency of power to corrupt, how could the goal of ensuring personal liberty be met? The Founders’ answer was to define specific authorities or powers by creating a single document that used an interlacing system in which ambition would be met with ambition.[20]

However, similar to Maslow’s hierarchy of needs, securing liberty required a more fundamental condition be established: insuring Domestic Tranquility. Granting the government sufficient power to maintain order is obvious. The Founders were very well read in history and classical Enlightenment philosophy, and Shay’s Rebellion surely brought Thomas Hobbes to mind. For in a state of anarchy, There is no place for industry...no arts; no letters; no society; and, which is worst of all, continual fear and danger of violent death. And the life of man is solitary, poor, nasty, brutish, and short.[21]

Centuries later, political scientist Samuel Huntington observed that ...the most important political distinction among countries concerns not their form of government but their degree of government. Quoting Walt Lipmann, he summarized his thesis when he wrote, I do know...that there is no greater necessity for men who live in communities than that they be governed, self-governed if possible, well-governed if they are fortunate, but in any event, governed.[22]

In maintaining order, there were a number of defects with the Articles of Confederation that the Constitutional Convention was meant to address. The States reserved the right to impose imposts and duties, money was not worth a continental, and nothing of importance could be resolved unless nine States assent to the same.[23] Mustering sufficient forces to defend the republic was problematic, and so was resolving disputes among the states. Although the convention was purportedly for the "sole and express purpose of revising the Articles of Confederation,"[24] the Virginia delegation took the radical step of proposing a new system of government.

Of course, central to any government is the ability to tax. Taxation provides the government with the means to fund all the instruments of power, including what is necessary to insure Domestic Tranquility. Nevertheless, there is an important caveat. As John Marshall wrote, The power to tax involves the power to destroy[25] This is the great difficulty to which Madison refers: How to balance order and liberty. Order would be preserved by delegating specific powers to a national government that were necessary to defend the country and to promote the general welfare of all citizens, such as creating a stable financial system or by advancing trade. To preserve liberty, the Founders sought to limit the power of government through a design that included six interlocking mechanisms. These components include: popular sovereignty, limited government via enumerated powers, separation of powers, checks and balances, federalism, and judicial review. As we shall later see, the Progressive Era changed government in fundamental ways that undermined that system.

Popular Sovereignty

The first and most important principle in preserving liberty is Popular Sovereignty. That is, the system is designed in a way in which we are to govern ourselves. Fundamental to this concept is that the representatives we elect must exercise their authority on behalf of the people. In other words, decisions should always be based upon what Aristotle called the common interest.[26] Due to the extent of the territory, the Founders chose the model of the Roman Republic over Athenian democracy. Whereas in a democracy, decisions are made directly by the people, in a republic the people choose representatives to exercise that power. The term constitutional democracy is often used, implying we are a democracy modified by a constitution, but the term Constitutional Republic is a more accurate understanding. Either way, the democratic process is a key element. Machiavelli examined the question of authority during the Renaissance and found that when the power rests with the people, There will be found fewer errors in the populace than in the prince, and these of less moment and much easier to put right.[27]

The clearest expression of the concept of popular sovereignty comes from Locke: The power of the...legislative constituted by them (the people) can never be supposed to extend farther than the common good...Whensoever...the legislative shall transgress this fundamental rule...they forfeit the power the people had put into their hands.[28] This was the basis of the Declaration of Independence: that to secure our unalienable rights of "life, liberty, and the pursuit of happiness...governments