Fixing the Road to Good Intentions
The Progressive Era amendments are harming us
This is part of a series I’m writing analyzing the Constitution of the United States. You can find the start of the series here.
On Sept. 17, 1787, the U.S. Constitution was signed. It’s gone through quite a few changes since. The celebration of Constitution Day these days takes on renewed significance as millions of Americans object to the federal government bailing out wealthy commercial banks, car companies, student loans and causes a degradation in the practice of medicine. Inflation is throughthe roof, we’re still involved in wars that don’t serve our national interests, and DOGE has uncovered A LOT of fraud, waste and abuse. We now know illegal immigrants are already receiving Medicaid and some of them have been registered to vote and have voted. Meanwhile, the federal government has issued improper payments to a startling number of people, companies, NGOs and foreign countries. The waste in government contracts is stunning, with nearly $1 trillion of American aid largely sent overseas during the Covid pandemic. And don’t get me started on the conflicts of interest, including alleged insider trading.
Federal government bloat is an enormous problem. While there is no single cause for this growth of federal power (and therefore is no single solution) a lot of the fault can be lodged against the Progressive Era amendments. As these amendments passed with good intentions, people didn’t see the inherent problems with them until decades down the road. By that time, they’d developed entrenched constituencies.
When the 18th was repealed, there were those who opposed that repeal too.
Unfortunately, we’re likely to see more government bloat and never see any useful constitutional amendments from Congress. The road to bad policy is paved with good intentions and there’s little chance Congress will allow any changes the shifts the balance of power away from them and their incompetance. They like weilding unlimited power to intrude on the lives of the people they consider their lessers.
Good Luck Repealing Them
Despite the clear evidence that the Progressive Era amendments are harming the American people and the government of the United States, we’re unlikely to see reform.
Why?
Politics plays a role, with elected officials promising solutions to social problems beyond their power to deliver. The judicicary has allowed Congress to exceed its enumerated powers for so long people (and Congress) no longer know what constitutional limits on congressional power look like. And the presidency under the last dozen presidents…. well, yeah, the last president who really worried about staying within the bounds of constitutional authority was Calvin Coolidge.
The Progressive Era Amendments to the Constitution hold some responsibility too. The income tax amendment and the amendment allowing the popular election of Senators, both passed in 1913, dramatically increased the power of the federal government at the expense of the states, creating a constitutional imbalance requiring correction.
The 16th Amendment gave Congress the power to impose an income tax, allowing it to tax and spend to a degree previously unimaginable and enabling congressional evasion of the constitutional limits placed on its own power by effectively bribing states. Once states were “hooked” on receiving federal funds, they could be coerced into obeying federal dictates, since the alternative was losing the revenue.
Pay no attention to the American people who are drowning in debt in part because the government takes a substantial slice of their income without them ever seeing it.
The 17th Amendment provided for the direct election of U.S. senators by the voters of each state. Under the original Constitution they were selected by state legislatures and could be expected to restrain federal power. Whatever that amendment’s democratic benefits, the loss of this check on the federal government cost the American people dearly.
We currently have no viable way to check federal power except to hope a president and Congress are aligned for reform at the same time, but even that is a short-lived correction, easily overcome by the next iteration of Congress or presidential administration.
Convention of the States?
There have been various efforts at offering repeal amendments to both of these amendments, but they’ve been unable to clear Congress whose denizens are loath to give up any power to the states or the people they pretend to serve.
Currently, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. We’ve seen how useful the federal courts have been in allowing an honest investigation into government waste and fraud, proving it’s a vain hope that the courts will help us reform the government, which leaves us with trying to amend the Constitution.
There are two ways to seek an amendment to the Constitution. One is the traditional way where it passes two-thirds of both houses of Congress before being forwarded to the states for ratification by three-fifths (36) of the states. The other way is to utilize the never-before-used Convention of the States to Propose Amendments, which would pass the amendments directly to the states for ratification.
The last amendment forwarded to the states by Congress was the District of Columbia Voting Rights Amendment, which was proposed in 1978. While not ratified, it represents the most recent amendment proposal sent to the states.
For this reason and others, we’re actually very close to a Convention of the States (COS), but I expect Congress will do whatever they deem necessary to prevent such a convention from taking place. There is currently a House Joint Resolution proposing a repeal amendment to the 16th. You probably haven’t heard of it and it’s likely never to make it out of committee, because Congress just can’t allow the sovereign power of the United States to return to the people and/or the states as was designed.
Repeal Amendment
Several years ago, the Virginia Assembly (their legislature) proposed a Repeal Amendment that would have allowed two-thirds of the states the power to repeal any federal law or regulation. Such a repeal would become effective when the legislatures of two-thirds of the states approved resolutions for this purpose specifically describing the same provision(s) of law or regulation to be repealed.
Advocates insisted this wasn’t “nullification” of unconstitutional laws, a power thought to reside only with the judiciary. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons irrelevant to constitutional concerns, similar to the presidential veto.
Reflecting confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, comprising the modern legislatures of two-thirds of the states, such an amendment would allow thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.
Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. The repeal power would allow the states to force Congress to take a second look at a controversial law.
Americans revere the Constitution but have also acted politically to improve it. The 13th and 14th amendments limited the original power of states to violate the fundamental rights of their own citizens, while the 15th and 19th Amendments extended the right to vote to blacks and women. The 21st Amendment repealed the “progressive” 18th Amendment that empowered Congress to prohibit alcohol.
The Repeal Amendment, even repealing the Progressive amendments themselves, won’t cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law wouldn’t be easy and would only happen if a law was highly unpopular.
Perhaps its most important effect would be in deterring even further expansions of federal power. Suppose, for example, Congress decides to nationalize private pension investments. Don’t say that can’t happen because it has been proposed. Just as it must now contemplate a presidential veto, so too would Congress need to anticipate how states would react.
The Repeal Amendment would help restore the ability of states to protect the powers “reserved to the states” noted in the 10th Amendment, giving citizens another political avenue to protect the “rights … retained by the people” to which the 9th Amendment refers. The amendment, were it ever passed, would provide a new political check on the threat to American liberties posed by a runaway federal government.
Let’s remember —checking abuses of power is what the written Constitution is all about.