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Make It More Than Parchment This Constitution Day

What the Constitution says our public officials must do or not do is less important than the power structures it creates (or created) to keep our public officials honest.

The Founders never said that words on paper alone would keep the federal government in check.

Madison and others said the primary check on federal overreach would be the people through elections combined with "auxiliary protections."

By "auxiliary protections," they meant the features of the Constitution that divide power at the joints - between the legislative, executive and judicial powers. They meant the features of the Constitution that allow different branches of the federal government to hold each other in check - the Senate's powers of advice and consent, the House's power of impeachment, the Executive's veto power, and the Judiciary's power of judicial review (the latter was well established, by the way, at the time the Constitution was ratified as an element of judicial power in the states). And they also meant the federalist structure of the Constitution, which established a "compound republic" in which the states would retain their exclusive sovereignty over local matters in large measure, compete among each other in the development of public policy, as well as maintain direct instruments of control over the federal government.

All of these features were essential to the careful balancing of power against power and ambition against ambition that would ensure the Constitution's guarantee of liberty could withstand a heavy load of bad actors.

But of the original instruments of state control over the federal government, we have lost the primary state check on federal power - the original power of state legislatures (before the 17th Amendment) to appoint U.S. Senators. This was a tremendous blow to the original structure of the Constitution. The states were removed from a point of control over half of the federal legislative power, removed from representation in confirming treaties, removed from representation in the conviction of impeached officials, and removed from influence over the appointment of judges and cabinet officials.

In one fell swoop, the 17th Amendment deprived the "compound republic" of the embedded political influence of the states in Washington, DC. It does not matter that the trend prior to the 17th Amendment was for state legislatures to yield to popular voting for senators. This is because the actual reins were still held by state legislatures. Popularly elected senators still knew that and behaved accordingly. But those reins were cut by the 17th Amendment.

The 17th Amendment consolidated actual power in a popularly-elected political class who no longer had to report back to the states on how it was used or worry about how state legislatures might respond. It was only a matter of time before they behaved like it. As against those who hold power conveniently consolidated in their hands, mere words on parchment (and ancient judicial decisions) could never be expected to hold the line between the states and the federal government.

The 17th Amendment's consolidation of power in a centralized political class, when combined with the effectively unlimited taxing authority furnished by the 16th Amendment and the lingering original sin of unlimited federal borrowing capacity, can lead (and has led) in only one direction - ever bigger, more intrusive, more unsustainable federal government.

It leads to tyranny absent a check on the federal government of equivalent power.

But elections are not that check. No individual citizen, voting among millions in senatorial contests can feel or rationally believe they have a stake in or impact on the outcome of those elections. Certainly, they do not have the same palpable sense of a stake or impact on the outcome that members of state legislatures did in the pre-17th Amendment world. Systemically, this means voting for a Senator has become purely symbolic and like most symbolic actions (such as voting for President), there is no guarantee of any rational outcome, much less a consistent trend line of electing Senators who are committed to limiting federal power.

The only effective long term check on the consolidated and effectively unlimited power held by the federal government is to restore the power of state legislatures to impose a check and balance. Beyond the value of institutionally counterbalancing federal power (which is valuable in itself), state legislators have a far greater personal stake in the process, and therefore a reason to behave more rationally and consistently over the long run than the populace (simply because there are only about 7500 of them altogether and far fewer in each state). Individual citizens, in turn, have a far more direct stake in the election of their state legislators and can be expected to behave more rationally and consistently in their election over time (because they typically vote among tens of thousands, rather than among millions of their fellow citizens).

But the only remaining effective way for state legislatures to impose a direct check on the federal government after the 17th Amendment - as a sword and a shield, as offense as well as defense - is to wield the power of amending the constitution under Article V.

Why? Because, in the long run, changing the constitutional rules of the constitutional game to favor limited federal power is the only effective way to respond to the rules of the constitutional game that currently favor unlimited federal power.

That's where Compact for America comes in. By using the court-tested instrument of a formal agreement among the states called a "compact," the Compact for America approach to Article V offers a turn-key approach to target the amendment process to the key areas where reform is most needed. By design, it is the fastest and most carefully devised way to achieve state-led constitutional reform. For this reason, it is the most powerful way to effect the only remaining structural power check on the federal government that the states possess.

The first deployment of the Compact for America approach is a Balanced Budget Amendment to limit the borrowing power of the federal government, restore states to a position of oversight over any increase in that borrowing power, create incentives to prioritize spending, and deter destructive tax increases.

The Balanced Budget Compact strikes at the root cause of all the structural flaws that currently exist in the Constitution as amended (or interpreted by governing Supreme Court decisions).

The Balanced Budget Compact does not reform the federal government with mere words on parchment. Compact for America's approach does it by re-instituting Madison's promise of "auxiliary protections" against federal overreach. It aims to restore the Constitution as it was meant to be - by ensuring institutional power stands behind the limited federal power delegated by the text of the Constitution, not just parchment.

This Constitution Day, stand with us. Email to fight for restoring the "auxiliary protections" promised by the Founders. And consider a generous donation to Compact for America's vision.

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