Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 1)* – Guest Essayist: David Eastman
This essay is the first in a series inspired by federal overreach in Alaska. The series explores briefly why the Constitution is ineffective at constraining federal officials today, and evaluates two largely untried and fundamentally different approaches to restoring constitutional constraints; issue– based legislative accountability and a convention of states to amend the United States Constitution, both of which claim support from the Constitution and America’s Founding Fathers.
At the outset of the Constitutional Convention, George Washington rose and declared to each of his fellow delegates “If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and the honest can repair. The event is in the hand of God.”
On January 25th of this year, the 44th President of the United States directed executive branch agencies to begin managing 22 million acres in Alaska—an area larger than the State of South Carolina—as off limits to development, directly in the face of federal law which states that there will be no further executive branch action withdrawing more than five thousand acres of public land within the State of Alaska without an act of Congress. In an era of highly polarized partisan politics it is a rarity indeed for every single elected member of a state legislature to vote in 100% agreement on an issue. The withdrawing of additional resources from Alaska by the federal government is one such issue. The current vote in the Alaska Legislature on this issue is 60–0.
With passage of the Alaska National Interest Lands Conservation Act in 1980, Alaskans were promised that no more land would be taken by the federal government. In exchange, Alaska agreed to the designation of more permanent wilderness land in Alaska than in all other parts of the United States combined. For Alaskans, this issue is a deeply personal one, and ties directly to the question of Alaskan statehood and whether or not Alaska’s status in the union will from this point forward be better characterized as a state, a colony, or a U.S. territory. While conflicts over Alaska’s wilderness will not often make the evening news in Miami or Boston, how to respond to an overreaching federal government is a question for Americans in Boston just as it is for Americans in Texas and Alaska. The question is no longer whether or not the federal government has overreached the limits placed on it by the Constitution. The question now is what to do about it.
In recent years, Republicans, Democrats and Independents have all been elected to state office in Alaska after making public commitments to limit federal overreach in The Last Frontier State. Accordingly, a wide variety of strategies to limit federal overreach have recently found support in the Alaska Legislature. In addition to joining other states in lawsuits against the federal government, Alaska has also passed legislation declaring federal gun laws unconstitutional and unenforceable within its borders, legalized marijuana, nullified provisions of the National Defense Authorization Act, prohibited state participation in the REAL ID Act / National ID program, established a legislative committee focused exclusively on federal overreach, committed Alaska through the Compact for America to the pursuit of a national convention to amend the US Constitution to fix the national debt, and called upon Congress to convene a convention of states for the purpose of amending the US Constitution for the purpose of limiting the power and jurisdiction of the federal government.
Currently pending before the Alaska Legislature are additional proposals seeking support to amend the US constitution, including an effort to call for an amendment to overturn the Supreme Court case Citizens United v. FEC, and an effort to petition Congress to call a convention to propose a Countermand Amendment to rebalance the relationship between states and the federal government. Traditional approaches to politics are being challenged today by the desire to try things that haven’t already been tried before, and changing the Constitution is often listed among them. Changing the United States Constitution has lately captured the imagination of Americans all along the political spectrum, from retired Supreme Court Justice John Paul Stevens on the left to author and conservative radio talk show host Mark Levin on the right—and it is not too hard to see why. Our Republic is undergoing change, and the Constitution with it; not the words of course, but the way in which the various branches of the federal government approach those words. Those who fancy these changes are eager to speed up the process, and those opposed to the changes are just as keen to put an end to them.
David Eastman is a graduate of West Point and a former Captain in the United States Army. He has served at all levels of government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He is a former Lincoln Fellow with the Claremont Institute for the Study of Statesmanship and Political Philosophy, and a John Jay Fellow with the John Jay Institute for Faith, Society and Law. He is a co-founder of Tax Our Kids, which advocates for sustainable government spending on behalf of Alaska’s children. He lives with his family in Wasilla, Alaska.
[*] The American Chesterton Society, “What’s Wrong with the World”, 1910
 Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven, Conn.: Yale University Press, 1937), 3:382. (1787.)
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I’m not in favor of a Constitutional Convention, primarily because this is something Liberal Progressives are strongly in favor of so they can officially move the nation to a “Living Constitution.” Our founders gave us the tool we need with the Amendment process. If the Convention can be strictly limited to the single issue only of proposal of a new Amendment to overturn the 17th Amendment, then I would support it. However, I’m greatly concerned that politics will dominate and somehow the number of issues would be expanded, since politicians are all about compromise – even of core principles.
The 9th and 10th Amendments are already there for the states, but the states have been too timid to use them effectively. My proposal, assuming a Republican president in 2017 and an increase in the number of conservative Representatives and Senators, is to Amend the Constitution to invalidate the 17th Amendment, to immediately fire all “Czars,” and to pass legislation permanently barring a President from assigning any future Czars, for the president to close down numerous federal government agencies and drastically reduce the headcount and budget and scope of all remaining agencies.
If that can be substantially accomplished in a first term, then I think we’re on the way to repairing our Republic.
Cullum # 26611
Ron, I appreciate your concerns and will be directly responding to them later in the series. The amendment process has always been a difficult one, and people (even those who have never been elected to office) are often reticent to willingly give up an entitlement (such as the power to directly elect a US Senator) when once they are in possession of it. The solution, I think, may be in alerting individuals to the conflicting entitlements which they may lay claim to. Would you rather be entitled to freely choose the number of miles you drive on any given day, or be entitled to the privilege of watching your gas-guzzling, Model T-driving, cigarette-smoking neighbor being told the number of miles that he can drive in a day. There is a cost to every entitlement of course, and all too often that cost is freedom. There is the freedom of the Czar on the one hand or the freedom of the individual on the other, and not much space in between.