The Triple Con: Barnett's Constitutional Convention Confidence Game

How this guy:



Thinks he can improve on THESE guys:



The raw political power nascent in the Tea Parties has a lot of politicians from both party wings of the bird of prey scared, hence the attempt by Texas Governor Perry and others to co-opt it for their own purposes. On 23 April, Randy Barnett, Georgetown Law Professor, went even farther in an op-ed in the Wall Street Journal, entitled "The Case for a Federalism Amendment: How the Tea Partiers can make Washington pay attention." You can find it here.

Calling the Tea Parties "well-intentioned," Barnett wrote:

Such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

You can find more recent and detailed Barnett advocacy of this idea in Forbes here and here.

Others, including Glenn Reynolds at Instapundit (who ought to know better), have apparently signed onto this proposal.

Now this post is not a legal analysis of Barnett's idea. Others more experienced in the law have already dissected it and found it wanting, to say the least. For example, Simon Dodd at Stubborn Facts writes in part in "About Prof. Barnett's 'federalism' amendment" here:

Far from "restor[ing] a healthy balance between federal and state power," the practical effect of section five is to federalize everything. Professor Barnett’s amendment, if adopted, would provide simple answers to questions asked by Professor Garnett recently: “When must legal expressions of local values give way to legal expressions of national ones? And who decides?” Section five demands that the answers are: always, and the federal courts will decide. They won’t even have to hide it under the cover of Living Constitution legerdemain, as hitherto; Barnett will make living constitutionalists of strict constructionists.

They will have no choice. Every regulation (statutes are regulatory too, as are your city ordinance) at every level of government will, overnight, become susceptible to being haled into court for a hearing on whether it is “reasonable.” And once the predictable round of facial challenges is through, a million as-applied challenges will ask the same question again. This is less the case for a federalism amendment than it is the case for a full employment act for lawyers.

And the the icing on the cake is that Barnett proposes to do all this - to cripple the states under the weight of federal litigatory armageddon - under the guise of reinvigorating federalism. As bait-and-switches go, you have to admire his moxie.

I’ll conclude by returning to Barnett’s convention-calling strategy. He writes that “States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people.” Actually, they do.

Although Barnett’s strategy is not to actually call a convention, there’s a significant risk of overshooting the mark. And if one is called, as he frankly admits, everything is on the table:

Quite so; that is why I recoiled from Larry Sabato's proposal, and it is why the states should recoil from Barnett's proposal (even assuming, for sake of argument, that they can bring themselves to accept its ingenuousness and wisdom). The present Constitution of the United States may well, "'in all its provisions, look[] to an indestructible Union, composed of indestructible States'"; call a convention, however, and when the music stops the states may not have a chair.

David Codrea, not one to mince words, has called this "A Flat-Out Stupid Idea," saying it was:

A profoundly dangerous and naive idea--any proposal is subject to political maneuvering and deal-making--witness the ongoing credit card/guns in parks bill. This would be no different, and a constitutional convention could leave us in considerably worse shape than we are now.

Besides which, this presupposes the fault lies within the Constitution--rather than with usurping "lawmakers" who ignore clear proscriptions and do what they want because they can get away with it. This bill would be no different.

You want to fix the Commerce Clause? We know what the founding intent was--follow it. Don't want foreign law? Where is the clause in the existing Constitution that allows it to even enter the equation?

He's trying to fix something that ain't broken.

I like how those who view this as an exercise in academia and political pragmatism think they can deal with corrupt statists and if they just somehow find the right incantation, all will be respected and put right.

The only way to convince a criminal not to press on with an attack is to make him fear the consequences. I see nothing for political predators to fear in this academic wish list.

Ben Franklin, when the Constitutional Convention was considering impeachment as a means of removing corrupt politicians, dryly commented that it was preferable to the alternative, assassination. Frank Sauer, a commenter at David's War on Guns blog, observed:

I suppose the problem is that there is not any 'enforcement clause' that can be used on politicians, judges, & bureaucrats for violating their oaths. Impeachment just doesn't seem to be enough. I guess that's the reason behind Jefferson's quote on having a revolt every 20 years or so... or the ancient Greek's solution:

"A Locrian who proposed any new law stood forth in the assembly of the people with a cord round his neck, and if the law was rejected, the innovator was instantly strangled." - Edward Gibbon, The History of the Decline and Fall of the Roman Empire

Indeed. Had Richard Nixon been hung from a lamppost in Lafayette Park and been left to twist in the wind for a week or so as a warning to future presidents who violate their oaths of office, do you suppose Bill Clinton, Dubya, or the Lightworker would have found the job enticing?

We know that these rogues are not deterred by the prospect of impeachment. Bill Clinton proved what a hollow threat that was. Yet Barnett and Company act as if we pass one more law, provide one more Amendment, that constitutional law breakers will begin obeying them? Who's fooling whom?

Folks, this doesn't work for street thugs, it doesn't work for white collar criminals and it doesn't work for rapacious tyrannical politicians. Some refer to this idea of Barnett's as a con con, short for constitutional convention. It is in fact a triple con -- a constitutional convention confidence game.

The Founders gave us a perfectly good system. The problem is not the system, per se, as the Founders designed it. It is not the fault of the document. The problem is that the system is corrupted by constitutional criminals and the document is ignored.

Ben Franklin, had he been able to see what has transpired in the Republic he left us to keep, might have insisted on putting in language demanding the death penalty for oath violation. It wouldn't matter though. This situation is beyond constitutional tweaking.

The ATF is on the prod again, seeking to lick their tyrannical masters' boots by stomping their own boots on our liberties. Does Barnett believe that ANY rewording of the Founders' document can restrain an agency so outside of constitutional boundaries? They are a rogue agency of, to quote Michael Barone, a "gangster government." What law can deter such people who still operate under Waco rules?

History teaches us that there is only one thing that would-be tyrants understand:



THIS is the bone in the throat of American tyrannical appetites, not some dangerous childish tweaking of a Constitution already ignored and violated a thousand times a day.

Don't be fooled by the Triple Con. The collectivists of this Gangster Government aren't.