Congress to state legislatures: Go sit on a tack. Rethinking American society, Part 4 (UPDATED)

Dan Riehl at Riehl World View linked to yesterday's Pundita post, ... Hashing out the Fourth Republic, and made this comment:

"A Fourth Republic ... It'll take a lot of thinking and much more doing."

Yes. Many Americans including Dan, the TEA party participants, and Procrustes at RBO are currently doing much thinking about how to move the United States in a new direction.

Procrustes's Obamanation, TEA parties, the law of unintended consequences and a Constitutional amendments convention, which I crossposted in my Hashing post, introduced me to James V. DeLong's April 21 The Coming of the Fourth American Republic, and Randy E. Barnett's April 23 The Case for a Federalism Amendment. How the Tea Partiers can make Washington pay attention

Both essays have generated a great deal of comment on the blogosphere. Barnett's proposal for a "federalism amendment" was published in the Wall Street Journal. Barnett, a law professor, is also a blogger at the law-oriented website Volokh Conspiracy. He posted there yesterday about his WSJ essay and DeLong's.

Another lawyer and a co-blogger at VC, Ilya Somin, also posted on Barnett's proposal. The proposal touched off debate and criticism from VC readers. (See the comment section at Somin's post.)

I can't promise that every comment is written by an attorney or law student, although they're represented in large measure among VC's readers. However, the comments are helpful reading for anyone interested in Barnett's proposal and the related issues.

The most troubling comment at VC came from "Han Solo," who observes in part:

Did you know that 39 states have ALREADY REQUESTED a constitutional convention to repeal the 16th amendment which is ONE MORE than the required 2/3rds, and CONGRESS IS IGNORING THEM and doing so unconstitutionally.

The republic is pretty much dead at this point since the federal government thinks there are no limits at all on its powers. [...]

Han goes on to quote from a critique of Barnett's proposal that was posted at the Wall Street Journal Forum, and which expands on Han's observation.

I've reposted the entire WSJ Forum comment at the end of this post. And there are several worthwhile observations at the Forum about Barnett's article; as with the VC readers, the comments reflect a great deal of criticism and debate about his proposal.

My favorite comment is found at VC. After reading withering criticism from another reader about Barnett's proposal, "Assistant Village Idiot" wrote, "Brett -- Let's try it first. Don't borrow trouble."

That's the spirit!

From all the comments I've plowed through, it seems there are wrinkles to be ironed out in Barnett's proposal. And there are alternatives proposed that might have a greater chance of success than Barnett's.

However, there is a big drawback to the constitutional amendment route to reining in the federal government: none of the proposals address how lessened federal influence will insure that the "Special Interest State" won't simply be replicated at the state government level. (The SIS is DeLong's term to describe the present or 'third' American version of the Republic.)

And DeLong's analysis of the Third Republic is incomplete. Yes, special interests run amok, but I think another profound negative impact on American society is from wholesale application of economic models. These models are often highly irrational; i.e., bearing relation only to theory even though applied outside theoretical bounds.

Yet until the public got a look at the responses from the federal government to the financial/ economic crisis that exploded last year, the situation, which I discussed in my second Rethinking American Society post, was greatly obscured by the dust kicked up from partisan quarrels and special-interest wars.

All that dust obscured the odd fact that U.S. federal policy became dominated by economic models rooted in monetary policy -- with state governments having no choice but to fall in line.

These models, cranked out by the Federal Reserve, the Treasury, and hosts of economic advisors to the Congress and White House, explain the utter eeriness of many significant problems that beset the USA.

It's as if a machine has tremendous impact on our society, but which is programmed to deal only with the workings of mathematical models having no relation to thousands of situations existing outside the models.

So there is an aspect of American society that is irrational to the point of madness. But if everybody's acting loco it becomes the norm. That's what happened in the USA, due to the notion that endlessly fiddling with the monetary supply could bring about and sustain a prosperous society.

Once the notion got entrenched and applied at the federal level, American society took on overtones of the Mad Hatter's tea party.

If you tell me, 'I don't feel loco' -- let me ask you a question: Where did you get the idea that you were a corporate entity?

If you say, 'I'm not a corporate entity' -- then why are you trying to act like one, if you're an American mired in debt as a way of life? Do you see a municipality staring back when you look at yourself in the mirror?

There are human ways to use debt as a financial tool, but where did Americans get the idea that they could finance themselves through debt in the manner of a corporation? Corporate entities finance their operations through debt, but you can't sell bonds on your family life.

The idea is plumb loco but Americans came to accept it as normal that individuals should manage their finances as if they were corporate entities. Now walk the cat backward and you'll find that it was economic models applied blindly to American society that entrenched the idea.

And that's just one loco idea arising from over-application of economic models to American life.

You're not going to cure that particular kind of madness by nudging the federal government back over a line. So the journey of a thousand miles must begin with a cultural revolution. Only then will Americans see their way clear to the best political solutions for balancing state and federal power -- and for relegating special interest legislation to its proper place in a democratic society.

This said, we can't simply dial up a cultural revolution. If the TEA parties coalesce behind a rollback of federal powers, and if they want to try the constitutional amendment route, they have my encouragement and maybe even my participation.

However, the key word here is "coalesce." In two recent posts, Note to Libertarians and The Real War on the Right, Dan Riehl pointed to the fundamental contradiction in Libertarian-Leftist alliances that are popping up, and to the profound disagreements within the Republican party.

The other day Ilya Somin pointed to the same theme by asking Is the GOP Becoming More Libertarian? Read his post at Volokh Conspiracy and the comments that follow to see why it's herding cats to attempt to unify the disparate views in the Republican party.

All that said, I feel safe in observing that a fast-growing number of Americans have concluded that things can't continue as they are. Many signs at the TEA parties read, "We don't like Republicans, either."

At root the TEA parties were not about partisan political issues; they were to point to the mushrooming abuse of federal power. If all parties concerned can agree on just that much, they stand a chance to unite and to the best interests of U.S. society.

Now here is the comment at the Wall Street Journal Forum that Han Solo mentioned. The author of the comment is Bill Walker, a co-founder of the Friends of Article V Convention organization:

The author [Randy Barnett] fails to mention a few significant facts relevant to his discussion of an Article V Convention, which is the correct term in discussing the convention process of Article V.

These are:

1. The author fails to note that all 50 states have submitted over 750 applications to Congress for an Article V Convention. The Constitution requires that Congress call a convention when two-thirds of the state apply for one with no other terms or conditions. This means therefore the call is based on a simple numeric count of applying states.

The language of Article V is clear: the application is for a convention call ("on the application of...[Congress} shall call..." and therefore constitutionally the proposed issue of an application has no bearing on the matter of whether or not Congress must call; all that matters is how many states have submitted applications.

The applications can be read at http://www.foavc.org/ [Friends of the Article V Convention] and are available nowhere else on the Internet and are photocopies of the actual pages of the Congressional Record. Under the terms of Article V; therefore, if 34 states submit 34 applications, Congress must call.

2. The author is totally incorrect in his assumption that Congress can "head off" a convention by the states proposing a specific amendment then proposing this amendment itself. As has been admitted by the attorney of record for Congress in a federal lawsuit before the Supreme Court of the United States, there are no terms or conditions for Article V other than the applications.

Further it was admitted the convention call is "peremptory" -- a legal term meaning that Congress (or the states) have no option once the two-thirds mark is reached.

3. The author is incorrect regarding his information about the 17th Amendment. As the text of the applications clearly show by 1911, 31 states had applied for a convention call. In 1911 there were 46 states in the union, meaning that two-thirds of that was 31. Congress was obligated to call and simply chose to ignore the Constitution and has continued to do so ever since. [emphasis mine]

Further, the texts of the applications show that on at least seven different occasions the states themselves noted that the numeric count standard had been satisfied and that Congress was obligated to call a convention.

4.The text of the applications show that 39 states have already asked for repeal of the 16th Amendment, one more state than is necessary for ratification of the proposed amendment but again it must be emphasized as admitted by the government, it is not the amendment issue but the number of applying states that matters.

5. As to any fears regarding a convention, according to sources, some 10,000 amendment proposals have been submitted to Congress; only 27 in the history of our nation have become amendments to the Constitution.

Because a convention is under the same constitutional restraints as Congress and as Congress has the identical power of proposal as a convention, the math of proposed amendments together with ratification indicate the number of proposed amendments coming from a convention will be small at best.

6. The trend of the states in their applications covering some 20 issues is clear: no state has submitted a single application that in any fashion resembles this proposal. Instead the states have addressed individual actions of Congress and the courts and sought corrections through amendments.

Thus they have sought to prohibit the use of unfunded federal mandates, state review of Supreme Court rulings, a balanced budget amendment, a federal initiative, referendum and recall amendment to name but a few of the proposals made by the states. No state has submitted any application even remotely resembling the proposal of the author.

I urge everyone to go to http://www.foavc.org/ and read the applications and learn the facts about an Article V Convention.

Rethinking American Society series
Part 1: Why the financial crash happened

Part 2: Goodbye to THX 1138 and all that

Part 3: Hashing out The Fourth Republic

Part 4: Congress to state legislatures: Go sit on a tack
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This entry is crossposted at RBO and linked at Riehl World View with Dan Riehl's comment about The Fourth Republic:

[...] As with most developments, there is the intellectual and the organic. Much will be discussed. But what matters is what plays out over time. And much of that will be driven by events.

Still, it's interesting and important to gain a sense of possible direction for whatever it is America might become on the other side of our current challenges.