I have been told that it is illegal to “propose” a state constitutional amendment that would re-enfranchise the state’s counties by doing away with the “one man, one vote” mandate imposed by the Reynolds v. Sims decision handed down by the US Supreme Court. A decision that destroyed the Republican form of government guaranteed to the states in the US Constitution. My concept would be for every county to be represented in both houses in the state legislature as was the case in many states before SCOTUS found new unarticulated meaning in the US Constitution that negated state Constitutions. To understand what was done we should review what republics and democracies are … issues that are fundamental to the mission of this blog … Saving the Republic!
In the first place, the United States of America is not a democracy, it is a federation of 50 small republics. The original republics joined together to win their independence from a despotic tyranny imposed upon them from Great Britain in a conflict we know as the Revolutionary War. In order to present an united front to their oppressor, they first met in two different congresses and then formed a government to prosecute the war under the Articles of Confederation. After winning their independence, the Articles of Confederation proved to be too cumbersome to be a viable instrument to promote peace and harmony among the members of the Federation and to confront problems with foreign powers and external threats adequately. A Constitutional Convention was convened to address the shortcomings of the Articles in 1787.
Most of what was discussed in the Convention is known thanks to notes taken by James Madison who is considered the “Father of the Constitution.” The men who attended the Convention were, for the most part, highly educated, mostly home schooled or tutored, and then further educated in universities such as Harvard, Yale and Princeton. This was the “Age of Enlightenment” where their course of study was the ancient classics from Greece and Rome, written in Greek and Latin, which were read in the original languages and, additionally, the writings of the then contemporary thinkers such as Edmund Burke, David Hume, John Locke, Thomas Hobbes, Jacques Rousseau, Adam Smith and Montesquieu.
All forms of government were discussed, but these men were already republicans. Alexander Hamilton suggested a monarchy and was ignored. No thought was given to democracies, because history shows that they, including the great Athenian democracy that you and I were taught to venerate, always fail. This is because, ultimately, the governed always vote themselves the treasury or are conned because of demagogic duplicity. The only concession to democracy in the US Constitution is the political enfranchisement of the common man with the vote and that was a magnificent step, it was the first time in the history of man that the common person had a say in government.
The genius of the Constitution came in several stages. First was to understand that the national government was to be of limited scope with only specific powers where it was supreme; the limited and only powers of the Federal government were set down in Article I Section 8. Second, following the wisdom of the Spartan Republic where no one man was to be long trusted with power, was the maxim of checks and balances; every branch of the government was in some way checked in its power by the exclusive powers of the other branches; the House is the paymaster, the Executive has the veto, the Senate has its advice and consent. And the Judicial the sacred duty of making sure that the other two branches were acting within the bounds of their constitutionally prescribed authority.
The philosophical aim of the Constitution was to protect minorities from the “tyranny of the majority” and to protect the individual person, the tiniest minority, from having his inalienable rights trod upon by the exuberant exigencies of temporary “crises.” All this while protecting the will of the majority to be realized. This was done by recognizing that the individual states were unique and should be left to govern their own internal affairs. The problems of the States, each co-equal, were to be represented by the Senate; the problems of the populace represented by the House of Representatives. Since the States were co-equal, they each had two ambassadors, their Senators, who were to be elected by the state legislature. Who better to pick these ambassadors than the elected representatives of the people of the state? The President was to be elected by the States; this process was addressed by the Electoral College.
When James Madison took this document back to Virginia, the then most populace state, his views were instantly challenged, most notably by Patrick Henry. Henry was appalled that there was no constraint on the minions of the Federal government protecting the rights of man. Madison argued that the new government was constrained by its specific powers granted in Article I Section 8 … Henry was adamant that the rights of man be made untouchable by the new government … many agreed with him. Madison, along with John Jay and Alexander Hamilton tried to sell the document through writing the magnificent “Federalist Papers.” Henry and those who agreed with him, men like George Mason, Henry Lee, James Monroe, Melanchthon Smith and many others countered with the “Anti-Federalist Papers.” The upshot was that in order to obtain ratification, Madison agreed to introduce the “Bill of Rights” in the first Congress and it was done. Suffice it to say that the Constitution would be unthinkable today without the 10 articles in the Bill of Rights.
Reflection will inform you that the Bill of Rights, which already resided in many state constitutions and in the Articles of Confederation, was not just a constraint, but a negation of the ability of the minions of the Federal government, be they the Executive, the Legislative or the Judicial, to tinker with the rights of the States or the People at large; the Bill is the ultimate check on tyranny from the Federal government. The US Supreme Court has historically slapped down the Executive and the Legislative for transgressions against these fundamental Freedoms. But who checks the Supreme Court if it gets out of line?
The tenth article in the Bill of Rights, the 10th Amendment, says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This article confirms that the State and the People, not the national government , are the supreme power in this union. It was added so that there was an ultimate check upon un-delegated laws or interpretations of the Constitution, it is the vehicle by which any trend to tyranny by the Feds can be negated. It applies to the Supreme Court as well as the two other branches. In the final analysis it is the only check on tyranny from SCOTUS. But who enforces the 10th Amendment? It most certainly would not be the Federal Executive or Congress … it could be SCOTUS, but not when SCOTUS is the violator. The States must be the watchdog and if we want to preserve the Republic, the States must act when the ugly head of tyranny arises. The States must nullify Federal overstepping of the powers granted to them under the Constitution. Has this ever been done? Madison and Jefferson threatened it against John Adams’ Alien and Sedition laws with the result that they were withdrawn. During Andrew Jackson’s time, South Carolina threaten it over tariffs on cotton, until the Federal government gave them relief. States in the North nullified the Fugitive Slave Act, by refusing to comply with it. The Dred Scott decision of SCOTUS was not implemented in the North and led to insurrection in some quarters and maybe was one of the causes of the Civil War. Recently, we have the situation where states have legalized marijuana, flaunting Federal statutes to the contrary. The simple fact is that the Federal government does not have police power sufficient subjugate the States and the People. The Federal Posse Comitatus Act severely limits the possibility of the use of the Armed Forces.
There have always been enemies of our Republic since before the Revolutionary War. Many people, then and now, believed and do believe in Statism, be it Monarchy, Progressivism, Fascism, Socialism or some other form of a planned, command society. The Founders made our Constitution amendable but difficult so as to not make mistakes by acting in haste. And even then the process was not thorough enough, bear witness to the alcohol prohibition amendment and its withdrawal. For the Statist, the process is too rigorous and because of their anti-republican prejudices, their goals are probably not popular enough to be successful. The Statists have spent well over 100 years figuring out how to shortcut their ability to pervert the Constitution. Their answer is to attack the weakest part of our government, the un-elected judiciary. They have aspired to seat at least five “Progressives” on the Supreme Court, to pack the Federal District and Appeals Courts and to delegate the law making powers of Congress to the bureaucracy, among other more subtle gambits. One of the tactics of the Progressives on the Supreme Court is to misinterpret the intent of Constitutional clauses like was done on the Commerce Clause in the infamous Wickard v. Filburn case. But the most invidious tactic is the concept of the “living Constitution” propounded by those who want to sidestep the Constitutional amendment process. The proponents of this travesty read words into the Constitution which they profess the Founders meant to say; or should have said; or what the document should say now in view of modern circumstances. In other words these people can make the Constitution say anything they want. (Sounds like Karl Marx: “the end justifies the means.”)
The Congress immediately at the end of and following the Civil War, in 1866, went to great effort to bring the former slaves into the mainstream of civil society. To do this, they enacted the 13th, 14th and 15th Amendments. The 14th Amendment enfranchised the former salves as full citizens under the law. Those in opposition to this amendment argued long and hard that it was too broad and would be subject to misinterpretation. There is vast documentation of those debates. The proponents swore to the opposition that the amendment pertained to the blacks only and with that assurance the amendment was passed. We fast forward 95 years to the Earl Warren supreme court with its assembly of progressive justices (Warren, Black, Douglas, Brennan, White, Goldberg, Clark and Stewart), all believers in the “living Constitution” and we find that they found the SCOTUS had the power under the Constitution to court mandate the reapportionment of state legislatures. Nowhere in Constitution is there the slightest hint that that power existed. The Justices were making up wording that fundamentally distorted its meaning. In the first place, the Constitution in Article I Section 1 states that the Congress will make all laws. If the Congress had passed such a law, under the 10th Amendment, it would have been un-Constitutional. The Supreme Court has no Constitutional authority to make laws. So we have a situation where the SCOTUS has enforced upon the States a decision by fabricating a law where there is no law to adjudicate, because such a law would be beyond the delegated powers, and have nullified one of the Bill of Rights citing phantom non-existent wording in our most revered document . It is preposterous to believe that any state would have ratified the 14th Amendment if it meant that the Federal Courts could reapportion its legislature. It is inconceivable that any state would condone the nullification of one of the Bill of Rights.
The attack on state reapportionment is far more insidious and subtle than first meets the eye. If you take the time to read the scandalous Reynolds v. Sims decision, the dissent by Justice John Marshall Harlan II elucidates what I have said about the intent of the amendment. The decision by the majority, if we read between the lines, informs us of the true nature of their effort. The majority makes it plain that their intent was to cleanse state legislatures of representation from rural areas and small counties as much as possible, in particular the state Senators. Additionally, we never reflect upon the effects of the 17th Amendment, a major attack on the Republic. Under the Founders, US Senators were picked by the Legislature. So whichever party controlled the Legislature sent their comrade to the US Senate. Unarticulated was the republican reason for this. It began in the counties where the citizens elected their state legislators. As an individual, if you help elect that legislator, who was local and knowable, he in turn would know and associate with the US Senator who was beholden to the Legislature. If you had a problem that required Federal action, all you had to do was to contact your friend the state Senator or House member and they could contact the US Senator for action. A simple but effective demonstration of republican government in action. Do you now or under a democracy would you have that kind of political access?
One man, one vote means domination by urban areas … the tyranny of the majority. We can presently see this being carried to fruition in the once great agricultural state of California. A republic means that all entities are represented … that the inherit diversity is enjoyed by all. In a democracy everyone votes on everything … are you an expert on everything? Our founders lived in a country that was as urbanized as the one we live in now … but they understood that the cities depended upon the outlanders far more that the reverse. A little reflection will inform you that if the outlands were cut off from the cities, the cities would very quickly disappear … but the outlands can sustain themselves. Legislators from urban areas, no matter how well intentioned, are basically clueless about the exigencies of the rural areas while rural members actively communicate with the large cities. Rural people go to town, but city people don’t participate in the sticks. A case in point is the ecological protection of the delta smelt by the urban dominated California Legislature. Their solution was to wash the smelt out of the San Francisco Bay to the sea, during a sustained drought, with 850,000 acre feet of fresh water, water used to irrigate the immensely fertile Great Central Valley. 850,000 acre feet of water would put over one foot of water over most major irrigation projects. It was a catastrophe for California agriculture. It would never have happened under republican government.
We, in this State, are seeing this same scenario raise its ugly head here. Very soon half or more of Our population will reside in or around one of our smallest counties. After the next census, One County could have as many as 18 members in the House of Representatives consisting of 70 members. That coupled with a Second County, with the possibility of a dozen more, makes the State of These Two Counties possible … interestingly, this might be more palatable for the rest of Our State, rather than being dominated by that tiny area of burgeoning population.
So where are we? My answer strikes to the heart of the problem … an amendment to Our Constitution providing for one Senator and at least one Representative from each county. I have thought about it a lot and this is what I came up with:
Apportionment of the Legislature
Be it resolved Hereby:
That we the citizens of the Our State shall apportion our Legislature, following the model of representation in the Federal system in the Congress of the United States of America and asserting the Guarantee of a Republican form of government as delineated in Article IV Section 4 of the Constitution of the United States of America so that:
The Senate of the Legislature of our State shall consist only of one Senator from each County of this State.
The House of Representatives of the Legislature of the Our State shall consist of at least 70 members and members shall be adjudicated County by County on the basis that the number of citizens in each county bears to population of the whole of Our State, provided that no member may represent the citizens of more than one county, further that each county shall have at least one representative in the Legislature and provided further that no county may have more than 10 representatives.
This solution re-enfranchises rural areas, instantly does away with the present grotesquely gerrymandered legislative districts, gives manifestly fair representation to all parties and restores our republican form of government . It is not necessary to expand the membership of the House, although it could be. (A bad idea, I think, because deliberative bodies need to be small enough for vigorous and cogent debate.)
Our Constitution needs to be amended. After that, it is time to assert the 10th Amendment and do our part in stopping the socialization of our Republic.
The 10th Amendment tells us that beyond the specific powers granted to the Federal government or taken from the States under the US Constitution, all power belongs to the States or the People. No Legislator need fear that he has done wrong if he presents this to the People and lets them decide at a fair election.
This is not partisan, but it is existential … will we live in Republic or a socialistic tyranny?