Commentary by Fred E. Foldvary
The state of California is supposed to be
sovereign under the Constitution of the United States. There is no higher
government authority above California. The Constitution provides for parallel
sovereignty for the federal and state governments, each with its own realm of
authority. The federal government is not supposed to have a superior status. The
10th Amendment emphasizes that powers not specifically allocated to the federal
government by the Constitution are held by the states or the people.
The Constitution endows the states with ultimate
sovereignty because they can change the Constitution. Article V of the
Constitution states that "on the application of the legislatures of two thirds
of the several states, (Congress) shall call a convention for proposing
amendments" subject to ratification by three-fourths of the states.
The states have in fact submitted over 500
requests for such a convention to Congress, with the required two-thirds of the
states asking for such conventions. The state applications for an Article V
convention are registered in the Congressional Record. But Congress has violated
the Constitution by ignoring these requests. In so doing, Congress has destroyed
one of the checks on federal power that the founders had implemented.
The states have thus lost their sovereign ability
to change the Constitution. This loss was in part the fault of the states
themselves when they adopted the 17th Amendment to have a direct election of
senators by the citizens rather than the original constitutional provision of
having the state legislatures elect their senators. This situation could be
reversed by the repeal of the amendment if two-thirds of the states call for it.
But Congress refuses to comply.
Some people fear that a constitutional convention
might propose amendments that will limit our liberty. However, any amendment
would have to be ratified by three-fourths of the states. Few of the many past
proposed amendments were ratified.
The convention could also propose amendments that
would enhance liberty, particularly if the convention is called by the state
legislatures to limit the power of the federal government. Indeed, many of the
state calls for a convention have sought to limit federal taxation. This may be
the reason Congress refuses to comply.
Many legal scholars think that the federal
government has abused its constitutional authority over interstate commerce by
interpreting all economic activity as being subject to federal authority. The
federal government has gone around the 10th Amendment with revenue sharing that
has strings attached, conditions that in fact enable the federal government
dictate policy to the states. Moreover, the Supreme Court has in effect amended
the Constitution for the worse when it has interpreted the commerce and other
clauses in favour of federal power.
Regardless of whether one fears or welcomes a
constitutional convention, the Constitution authorizes it, and if we are to have
a rule of law under the Constitution, Congress must follow the provisions of
Article V. Liberty is better served with divided powers than with power
concentrated in the federal government.
Two lawsuits, Walker v. United States and Walker
v. Members of Congress, have been initiated in federal courts to make Congress
obey Article V (see article5.org). The refusal of Congress to comply with
Article V has received little public attention. Those of use living in
California should be aware that our individual sovereignty as citizens is also
cut short when our state representatives have lost their constitutional
authority. We no longer have a real Constitution and rule of law when Congress
arrogantly asserts supremacy over the states.
Are Americans to have sovereign states as
authorized by the Constitution, or will the states be demoted to mere
administrative provinces under an all-powerful central government?
Fred E. Foldvary teaches economics at Santa Clara
University and writes for The Libertarian Perspective. His column reflects his
own views, and not necessarily those of The Signal.
Copyright: The Signal