Those who oppose states using their power to originate amendments under Article V often start with the question, “Why amend the Constitution when nobody follows the Constitution as written?”
This question is flawed in two respects.
First, it overstates the degree to which the Constitution is not followed. The truth of the matter is that much of the substance of the Bill of Rights retains its force, especially the First and Second Amendments in recent years. In non-national security settings, nearly all of the procedural rights protected by the Bill of Rights also retain their force. Likewise, the judiciary still judges, Congress still originates appropriations, and the President still acts as commander in chief for only two terms. The Constitution is not enforced well, but it is not entirely ignored either. Big and important chunks of the Constitution remain effective and observed.
Second, the question understates the importance of using the amendment process to define power structures, rather than simply layer-on still more parchment barriers. After all, the primary enforcement mechanism of the Constitution is not and was never meant to be parchment. It was meant to be the division of power into competing branches and departments of government, both horizontally and vertically. That original division of power no longer exists because of amendments to the Constitution.
The 16th Amendment bestowed upon the federal government unlimited income tax authority, overriding the prohibition on direct and capitation taxes which was meant to give states a relative advantage in their tax base as much as to protect the people from another taxman. The 17th Amendment removed the states from a position of control over the U.S. Senate. These two amendments dramatically undermined the division and balance of power against power, and ambition against ambition, that was struck by the original constitution.
Because of these amendments, the states no longer have a tax base advantage over the federal government. They no longer control by proxy half of the whole federal legislative power. They no longer control by proxy half of the appointments power. And they no longer control by proxy half of the treaty power.
These were not minor changes in the Constitution’s original design.
With so much power consolidated in the hands of the Washington political class, unchecked by any external institution, is it really any wonder that federal executive and legislative power has grown far beyond its original bounds? Add to this, the original structural flaw of unlimited borrowing capacity—the ability to spend unlimited amounts of money without any immediate political cost—and you have the recipe for the federal government we now have.
Things do not bode well for the future of our Republic so long as the federal government structurally retains unlimited borrowing capacity, unlimited taxing authority, and the unlimited consolidation of power in Washington. But this observation underscores that constitutional amendments matter, notwithstanding the cynical and misleading question that began this email, and that well-designed amendments should not merely layer on still more parchment barriers.
Instead, a well-designed amendment should reform the structure of the Constitution. It should divide and balance power horizontally and vertically to restore what was lost in the 16th and 17th Amendments, and to fix what was broken at the beginning by the Founder's ill-fated decision to give the federal government unlimited borrowing capacity. In other words, an effective amendment must remedy, to some extent, unlimited borrowing capacity, unlimited centralization of power in Washington, and unlimited taxing authority.
The Compact for a Balanced Budget-would do just that by advancing a federal Balanced Budget Amendment that:
Limits the federal government’s borrowing capacity;
Requires state legislative approval for any increase in federal borrowing capacity; and
Restrains the federal government’s taxing authority.
In short, by joining the Compact for a Balanced Budget, your state can start the process of restoring the Republic by striking at the root causes of its decline.