Recently, a good deal of discussion has been created as a result of a proposed Constitutional amendment by Professor Randy Barnett in the development of a "Federalism Amendment".  The blogs, emails and website reviews tend to be anywhere from very supportive to absolutely apoplectic!  I wonder about the divergent views and in particular, the concern about the call for a constitutional convention by the states.

Now to be sure, this approach may seem extreme, but it is also interesting to note the ebb and flow of the amendment process throughout the history of the country.  It is no less striking to see how civil discussion generally led towards the articulation of a construct that would eventually end up in a proposed amendment.  This of course may seem out of bounds and highly unlikely in the politically charged environment in which we now find ourselves. However, the proposal put forward by Professor Barnett is extremely interesting and should further the discussion around states' rights and the role of a central government in our nation at a time when individual rights seem to be diminished by actions of Washington.

In my opinion, our union is not so fragile or so extreme as to be co-opted by a single viewpoint.  This seems to be the greatest argument against a con-con and one that seems to create a “fear” of extremism being wrought as a result of the appointment of “too liberal” delegates to such a convention.  In fact, this is a real concern, however, there is no limitation on a liberal initiative to change the Constitution and call for the same approach if those ideas were supported by the two thirds of the states to call for such a convention.  In fact, what we see today is the appointments to Federal courts that tend to be activist in nature and result in finding “rights” that are not apparent in any reading of our existing Constitution and the Bill of Rights!

This approach has resulted in some of the farthest reaching impacts to our “sacred” document without ever having to call a constitutional convention or gaining any majority of states in accepting these outcomes.  The most obvious of which is the “right” to an Abortion as enumerated in Roe v. Wade over twenty-five years ago!  While I must state that I am pro-life and abhor abortion, the outcome of this decision by the Supreme Court has had such a far reaching impact as to make any discussion of liberal bias during a con-con a farce.  Since the Roe v. Wade decision, we have seen nearly fifty million abortions occur in this country.

Regardless of your position on this matter, no amendment took place, no vote occurred, no states’ rights were considered and yet the Court found this right to exist in the current document we call the Constitution.  It is this context that we should consider in proposing any action and one that should also influence our support or rejection of a specific amendment.  Writing in “Explicit & Authentic Acts – Amending the Constitution 1776-1995”, David E. Kyvig writes,

“Joseph Story, one of the early nineteenth century’s most careful and insightful writers on constitutionalism, observed that the Declaration, …was not an act done by the state governments then organized nor by persons chosen by them.  It was emphatically the act of the whole people of the united colonies, by the instrumentality of their representatives, chosen for that, among other purposes….  It was an act of original, inherent sovereignty by the people themselves, resulting from their right to change the form of government, and to institute a new government, whenever necessary for their safety and happiness.”

This notion of the peoples’ sovereignty in declaring their independence was an essential context for the Declaration of Independence and was carried through into the Constitution and subsequent Amendments.In considering our current situation, are we no less sovereign and do we no less believe the will of “we the people”?  If, as some have argued, that we have moved too far to the left and that any effort to change the Constitution would result in calamity, then we have already lost the battle of that sovereignty.  For if these changes do not occur by constitutional amendment, than they shall indeed by judicial fiat.  We are already moving down that path and there is sufficient evidence to assume that we will move ever more swiftly towards that end.

I for one would prefer to take my chances with “we the people” rather than a few “black robed jurists” who today interpret a “living” document rather than assess law in context of the original construction of that document.

So, where do we go from here?  I would suggest that we begin a dialogue, reasoned and civil.  Should we concur that an amendment is appropriate, then move in that direction.   However, should we prefer to maintain the status quo, hope for legislation that moves towards a desired outcome and watch that legislation be torn asunder by an activist court, than we shall indeed be victims of our inaction.  For my part, I shall continue to review, study and consider the possibilities and add my voice to the discussion, and yes, sometimes the arguments that will surely ensue.