One way to break free from the crushing constitutional crisis

Editor's note: This article was originally published in September 2016. It has been updated for the 230th anniversary of the signing of the Constitution.

The overwhelming majority of Americans don’t know that September 17 is the celebration of the 230th anniversary of the signing of the U.S. Constitution. On September 17, 1787, thirty-nine delegates to the Constitutional Convention from 12 states signed the document establishing the most effective form of government ever known to man.

Towards the end of his life, James Madison reflected in his notes on the Constitutional Convention:

Sadly, over two centuries later, almost every word of that document has been contorted beyond recognition, flipping our system of governance on its head.

There are numerous facets to the severe constitutional crisis we are confronted with today and a myriad of culprits to blame for the source of this crisis. But perhaps the biggest facet is the one resulting from the collapse of representative democracy — with Congress impotent and the federal executive and judiciary crushing the states while stealing the sovereignty of the nation, states, and individual citizens. The clear culprit for this aspect of the constitutional crisis is the rise of political parties, which have replaced our republican system of governance with a ruling class of oligarchs loyal to their parties instead of to the Constitution.

The system of government we adopted

The Constitution signed on that day in Philadelphia was a sacred document forever fixing the terms and conditions of our form of government. The beauty of that document, of course, is that it also prescribed the narrow and exclusive path through which the American political system can be changed.

What was that system?

The Constitution addresses the relationship between three entities: the people, the states, and the federal union. Misunderstanding the rightful powers of each “branch” is the reason for our existing constitutional crisis. Our Founders were quite clear in their intent to assign the federal government only enumerated powers dealing primarily with national defense, external affairs, and subject matter that required uniformity, such as naturalization, currency, and interstate trade. They vested all other powers needed to foster internal order with the states, except for issues affecting natural and inalienable rights that were left to the people, as laid out in the Declaration of Independence. It was the job of the state and federal governments in their respective spheres not only to leave those rights to the people, but also to check each other’s power in order to secure those liberties for the people.

Madison explained the arrangement of federalism best in Federalist #45 as keeping the powers of the federal government “few and defined,” applied “principally on external objects, as war, peace, negotiation, and foreign commerce.” State powers, on the other hand, were to be “numerous and indefinite,” extending “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.” Madison was also quite clear which one would be most dominant in people’s lives:

Reading these thoughts from Madison 230 years later should jolt any patriot who celebrates the Constitution into a sense of shock as to how dramatically our system of governance has been altered.

Despite the very narrow, yet vital, purview of policy that was granted to the federal government, our Founders still wanted to ensure that its power would be kept in check and that it would remain dedicated to the prudent use of the critical power that was ceded by the states after the collapse of the Articles of Confederation. Writing in Federalist #47, Madison very presciently recognized that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

To that end, the Framers vested Congress — the elected branch with the most transparency (through public votes) — with the “predominant” power to legislate and fund the functions born out of those “few and defined” enumerated powers. The executive was to faithfully execute those laws. The judiciary, which was to be comparatively the weakest branch and wield “neither force nor will” over the direction of the country, was to interpret the application of those laws — not overturn them.

Once again, let’s explore how Madison viewed this division:

It's not that our Founders didn’t envision tyranny or usurpations from one corner of government. Rather, they were confident that if one area of the government stepped out of line, the people’s representatives, in conjunction with a group of states, would check that power.[2] This is at the heart of the republicanism the Constitution sought to foster. In establishing this system of federalism, representation, and separate branches of government with distinct roles, ultimately the critical decision-making power was vested in the people. As Madison wrote in Federalist #39, “We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.”

This is the sacred contract our founders signed; this is the system of governance they adopted. Nothing in the ensuing 17 amendments adopted after the Bill of Rights, including the much-contorted Fourteenth Amendment, countermanded or vitiated that document.[3]

As Supreme Court Justice William Paterson wrote in 1795: 

How the system got turned upside-down

To say our constitutional system is undergoing a crisis is an understatement. The states have been crushed by the federal government, and the national legislature — the predominant branch of the federal government — has allowed itself to be neutered by the executive and judicial branches, abdicating its responsibility to protect the people and the states from such usurpations.

With the exception of Obamacare, almost every recent perversion of our system has come at the hands of the unelected branches of government or are the result of poorly crafted legislation from years ago. The legislative branch, with the power to legislate, the prerogative of oversight, and the control over the purse, has refused to lift a finger to stop the runaway leviathan. The judicial branch of government has now become the final arbiter over every political and social issue, has stripped the states of power, has flipped fundamental rights and natural law upside-down, and has rewritten every clause of the Constitution to mean the exact opposite of its intent.

Together with the executive agencies, as I warn in “Stolen Sovereignty,” the judiciary has taken over the sovereignty of the individual, the state, and the federal union. While the judiciary greenlights the federal bureaucracies to regulate every aspect of our lives — over and beyond even the powers granted to the states — the federal agencies refuse to exercise the main power they actually hold: to protect the sovereignty and security of this country. Madison foresaw the results of a perverted government that is preoccupied with ill-gotten power and abdicates the responsibility it does have: “The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

The decisions of the bureaucracies and the judiciary not only render the results of elections moot by overruling the people, the states, and the Constitution on major societal issues, they steal the sovereignty of the citizen by ensuring that non-citizens can vote and illegal aliens get citizens’ rights. They ensure that the most sacred question of a society — the decisions governing the future membership of the society and the voting populace itself — are stripped from the people, the states, and their elected federal representatives.

As I observed in my book, how ironic that the preamble of the Constitution, declaring “We the people,” was authored by Gouverneur Morris, who was such an early advocate for American sovereignty and consent-based immigration, and is now being used by the federal judiciary to bestow citizens’ rights on all “people.”[5] How unfortunate that the man who declared “every state enjoys sovereign power” must watch from heaven as the document he helped draft is being perverted to crush the states.

The political party system is to blame

How have we fallen so deep into the abyss of a post-Constitution Gomorrah?

How it is that Madison thought the most mischief would come from the legislature, which had the most power, yet they have stood by idly as the other two “weaker” branches crush the people and the states?

The culprit is the binary choice of two political parties and the intellectual dishonesty that it has spawned. One of George Washington’s final warnings in his sagacious Farewell Address (before extolling “religion and morality” as “indispensable supports” of prosperity) was that the seeds of dissolution of the republic were sown in the promotion of political parties. He warned:

Sadly, every premonition of Washington has come true. He likely never even envisioned political factions in which one party (Republicans) was the ultimate false-flag operation for the other party (Democrats), as is our predicament today.

Instead of having the people, states, and federal government balance one another, instead of having the executive, legislative, and judicial branches balance one another, we have two political parties as both means and ends to themselves. One reason Congress fails to check the other two branches is because at any given time at least half or close to half of its members are of the same political party as the usurpers in the other branches. Consequently, they are happy to go along with illegal power grabs because it advances their party’s agenda.

For example, our Founders put strong faith in the power of impeachment[6], yet that tool has been rendered moot because the opposing party, which invariably has at least one-third of the seats in the Senate, will never vote to impeach a member of the same party. Forget about the president. The political party system has bred such intellectual dishonesty that Democrats won’t even impeach the IRS commissioner who blatantly lied to Congress and destroyed documents covering up the agency’s targeting of political groups.

Likewise, the reason Congress has sat idly while the courts have spawned social transformation without representation is because half of its members agree with the outcome, even if the process through which they achieved it was grossly illegitimate.

It is also for this reason that states have been impotent in fighting back to defend their turf. It is hard enough for a state to challenge the federal government unilaterally, even if its entire citizenry supports the effort. Yet even “red states” invariably have 35-45 percent of its members who are from the party that agrees with the federal action taken by their allies in Washington, even if it harms their state.

It would be destructive enough, “truly the worst enemy” in the words of Washington’s aforementioned admonition, if we merely had two opposing parties supplanting our system of governance with a Republican Party firmly committed to opposing the Democrat Party with the same rigor and even the same intellectual dishonesty to achieve its ends. But it’s worse than that. Over the years, the two parties have morphed into one oligarchy that more or less shares the same perverted values and unconstitutional means of achieving them. Even when Republicans win back Congress and a majority of the states, and even on the few issues in which they claim to uphold the Constitution, their political caprice convinces them that it’s better to allow the federal executive and judiciary to “take the blame” for any chaos resulting from bad policies rather than risk trying to overturn them. It’s all about politics and giving your side an election issue.

It is this failed monopoly of Republicans and Democrats on the political system — one that has morphed into a de facto oligarchy — that has actualized Madison’s worst nightmare of a government not derived from a “great body of the society,” but from “a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers” who “might aspire to the rank of republicans, and claim for their government the honorable title of republic.”

What are we the people to do?

There are no easy or quick solutions to restoring our Constitution after so many years of complacency in the face of endless usurpations. However, we must find a way to restore power back to the states and tilt the balance of federal power back from the judiciary and bureaucracies and toward Congress. We also need to work in the states to promote Article V conventions, using the existing constitutional tools to restore and reinforce the original system of government we adopted.

Concurrently, it is incontrovertibly clear that to continue down the same path of failure is not an option. So long as constitutionalists are stuck in this binary political game, we will continue to exemplify the definition of insanity by expecting a different result. The federal government will not willingly restore power to the red states; they must grab it back on their own. Doing so will require a new political vehicle, one that is fresh, consistent, principled, and intellectually honest so that it might have the political capital to advocate for state powers, civil disobedience, shunning of the courts and the agencies, and so forth.

The existing Republican Party cannot and will not serve as that vehicle. We have learned from 1988 until the present — ever since Republicans stopped nominating constitutionalists for president — that members of the party will bend in the wind and change their long-held beliefs to comport with the capricious views of the party leaders.

Ideally, we wouldn’t have any factions or parties, but even Washington recognized in his time that they are “inseparable from our nature.” The next best thing is to break the monopoly of the oligarchy by introducing choice and competition through a new party that is actually built upon republican principles. As Madison wrote in Federalist #10, the way to deal with the necessary evil of factions is to grow the pie: “[Y]ou take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”

This new vehicle will not launch overnight in all 50 states and will not take the same form in every state, at least not initially. But it must begin in the states where overwhelming majorities are still receptive to a constitutionalist message. And fortunately, most gubernatorial elections and more state legislative elections occur during non-presidential election years, when Democrat turnout is lower, which is why Republicans to this day control so much state government. Sadly, with the exception of a few states, they don’t do anything positive with the power they have.

That must change. A new vehicle that is consistently committed to federalism can tell the federal executive and judiciary where to go. We have long passed the threshold of usurpations to justify civil disobedience, but we need a respected vehicle — the platform of a sovereign state and a new party — that has the support to see it through. In justifying the eventual need to ignore the courts, Robert Bork once said that “to the objection that a rejection of a court’s authority would be civil disobedience, the answer is that a court that issues orders without authority engages in an equally dangerous form of civil disobedience.”

For far too long, we have tolerated, legitimized, and codified the civil disobedience of the other side. What we need now in response is not the pursuit of the same failed tactics and strategies, which have led a significant portion of our movement to seek new and foreign principles. Rather, we need new and innovative strategies to restore the timeless principles set forth by our Founders.

As Justice Joseph Story once said, our constitutional principles are to “speak in the same voice now, and forever. They are of no man’s private interpretation. They are ordained by the will of the people; and can only be changed by the sovereign command of the people.”

[1] James Madison, Preface to The Debates in the Federal Convention of 1787, 1830: Writings of James Madison, ed. Jack Rakove (New York: Library of America, 1999), 842.

[2] In Federalist #51, Madison wrote that the division between the states and the federal government as well as each entity being divided into three branches would safeguard liberty: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

[3] Undoubtedly, the movement behind the Sixteenth and Seventeenth Amendments sowed the seeds for an expanded federal government, but the actual amendments did not fundamentally alter the system of government and justify a single usurpation we face today. Moreover, they were enacted through the legitimate amendment process, unlike today’s illegal ad hoc constitutional conventions that take place on a daily basis.

[4] VanHorne’s Lessee v. Dorrance 2 U.S. 304, 308 (1795). William Paterson was one of the primary drafters of Article III of the Constitution, was one of the original members of the Senate Judiciary Committee who created the court system, and was one of the early Supreme Court justices. Few people should be accorded greater respect in their views of constitutional construction.

[5] “Every society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted, there can be room for no complaint.” Gouverneur Morris, “Debates in the Federal Convention of 1787,” Elliot’s Debates, Vol. V, as republished on the Teaching American History website, https://teachingamericanhistory.org/ratification/elliot/vol5/0809_1787/.

Morris’ importance as a founder is best captured by Madison’s claim that the actual text of the Constitution “fairly belongs to the pen of Mr. Morris.” Max Farrand, “The Framing Of The Constitution Of The United States,” (Kindle Location 1744). Kindle Edition. See also Richard Brookhiser, “Gentleman Revolutionary: Gouverneur Morris, the Rake Who Wrote the Constitution” (Detroit: Free Press; Reprint edition (June 3, 2004)).

[6] During the Constitutional Convention, Edmund Randolph referred to “[t]he propriety of impeachments” as “a favorite principle.” Impeachment is mentioned 58 times in the Federalist Papers.