Conservatives and the Constitution

The Constitution:
We Love it; it's Perfect; Let's Change it!

Singing their praises of the Constitution, House Republicans adopted a "requirement that every bill must cite the provision of the Constitution which permits its introduction." Surprisingly, the actual Constitution frequently makes conservatives uncomfortable.

Rick Perry, former Texas governor and former presidential aspirant, offers an extraordinary example of this apparent ambivalence. In 2010 he published Fed Up! Our Fight to Save America from Washington, with a foreword by Newt Gingrich. Perry urges repeal of some amendments, and adoption of others. He particularly hates the 16th Amendment that authorizes the despised U. S. income tax. He also wants to repeal the 17th Amendment, which gives the vote for a state's U.S. senators to the people of that state, rather than to its legislature. Strangely, many other conservatives also urge that we deny American citizens the right to vote for their senators. Perry wants new amendments to remove lifetime appointments for federal judges, grant Congress the power to overrule Supreme Court decisions, define marriage and require it to be between one man and one woman (probably that means one at a time), outlaw abortion anywhere in the United States or territories, and of course, he repeats the long-desired (and simple-minded) demand for an amendment that would require the US budget to be balanced.

Additionally, he believes many accepted programs and practices to be unconstitutional. These include Social Security, any bank regulation, any consumer financial protection, any federal programs relating to education, and any activity that he believes to be inconsistent with "free enterprise."

Of course this is not a book to be taken seriously. It will have no effect, and will be forgotten. It is useful, though, for a look into American popular conservatism.

The Republican website advocates an amendment to require in Congress "a super-majority for any tax increase," and also a cap on overall spending so that governments could never balance the budget by tax increases, only by spending cuts. Many prominent Republicans besides Perry--Ben Carson, Rand Paul, and Mike Huckabee, for example--would limit the tenure of federal judges. Donald Trump, Rand Paul, Rick Santorum, Lindsay Graham, Chris Christie, Bobby Jindal, and Scott Walker are among those who oppose birthright citizenship.

The modern Republican obsession with low taxes has superseded its traditional devotion to balanced budgets. This means that they, along with Perry, advocate repealing the Sixteenth Amendment.

A "super-majority" for tax increases also would require constitutional change. It would empower a minority to thwart the will of the majority regarding taxes. The website advocates such a constitutional amendment.

Eliminating birthright citizenship would mean repealing the Fourteenth Amendment. That would be the first constitutional change that took away a citizen's right because of the parents' status. Repeal would also remove the mechanism that enabled the Supreme Court to apply the US Bill of Rights to the states to protect citizens from state, as well as from national, governments (Justice Clarence Thomas has opposed extending the Bill of Rights to protect against actions by state governments even with the Fourteenth Amendment).

Changing lifetime tenure for federal judges may be popular. It might even be a good idea if done properly, but, again, term limits would require a change of the Constitution's Article III.

Many conservatives around the country have also advocated a "repeal amendment," that would change the Constitution to permit states to veto any action by the U. S. Congress. The Virginia House of Delegates actually passed such a resolution in 2011. Supporters often call this the "Madison Amendment." This is historically ignorant (or duplicitous), because Madison advocated giving Congress had the power to overturn state laws.

Conservatives frequently call for the states to propose amendments, saying that Article V empowers two-thirds of the states to do so. This is a popular misunderstanding, as better-informed conservatives recognize. Only a national body can formally propose amendments, either Congress, by a two-thirds vote of each House, or a national convention. There cannot be a national convention unless two-thirds of the states request Congress to call one. In either case, three-fourths of the states must ratify proposed amendments to make them effective.

The reason conservatives would like a convention, is their naïve belief that it could be limited to proposing only the amendments they desire. Our national experience in that regard is not reassuring. We have only had one national constitutional convention in our history, and that one was strictly limited. It was not to be a constitutional convention at all, but would merely suggest revisions to the Articles of Confederation.

Instead, it immediately disregarded its charge, and proceeded not to place additional limits on the national government, but instead to produce the Constitution designed to increase national power at the expense of the states. In this instance, the outcome was good, but it would be foolish to assume that a successor convention might be equally adept at improving the existing constitutional structure. It could easily do the reverse: throw out the Constitution, and come up with whatever scheme might be popular among zealots at the moment.

Current Texas Governor, Greg Abbott, has produced 90-plus pages of extreme revisions that he would like to see to the Constitution. States could jointly overrule Washington; a supermajority on the Court would be required to overrule legislation (not too smart from his point of view because of the many times the Court has upheld conservative dogma by narrow decisions).

So, many conservatives, really resenting the Constitution, seek its destruction. They praise "federalism," but implicitly advocate something unworkable: a confederacy. The Articles of Confederation failed. The disastrous attempt by southern states to maintain slavery by dismembering the country and creating a confederacy failed even more spectacularly.

Perhaps the most puzzling movement has been opposition to the Seventeenth Amendment, which gave a state's voters the right to choose their United States Senators, taking that power from legislatures. That issue requires more attention than possible in this brief article, and will be the subject of a separate posting.