The evisceration of the Fourth Amendment by the U.S. Supreme Court in the recent case of Kentucky v. King should forever put to bed the idea that we need a convention to propose amendments to the Constitution in order to regain control of the federal government.
While seeking a drug bust after a “controlled buy” of crack cocaine, police in Lexington, Kentucky, kicked in the door of the wrong apartment after they supposedly “smelled marijuana,” “could hear people inside moving,” and believed that “drug related evidence was about to be destroyed.” Once inside, the police found three people smoking marijuana, powder and crack cocaine, and drug paraphernalia. Police eventually entered the correct apartment and found the suspect whom they initially sought.
A Fayette County Circuit Court ruled that the evidence seized was admissible because the warrantless search was “justified.” The Kentucky Court of Appeals affirmed the Circuit Court ruling. However, the Kentucky Supreme Court reversed the decision, holding that “exigent circumstances could not justify the search because it was reasonably foreseeable that the occupants would destroy evidence when the police knocked on the door and announced their presence.”
The U.S. Supreme Court, in an opinion written by Justice Alito, overruled the Kentucky Supreme Court, seeing “no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment.”
However, in a blistering dissent, Justice Ruth Bader Ginsburg took to task the other eight justices:
The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.
How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?
Although Justice Alito said that “this Court has identified several exigencies that may justify a warrantless search of a home,” the Fourth Amendment knows no such exigencies:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Do supporters of a constitutional convention to propose amendments seek to end the federal government’s war on drugs that makes cases like Kentucky v. King possible?
Not at all. They want to amend the Constitution for generalities like the federal government’s increased power and growth, the federal government’s abusing or exceeding its authority, or the federal government’s mounting deficits. One organization has proposed The National Debt Relief Amendment: “An increase in the federal debt requires approval from a majority of the legislatures of the separate States.” Constitutional scholar Nick Dranias of the Goldwater Institute has authored a three-part series on Amending the Constitution by Convention. He seems mainly concerned about the growing national debt and out-of-control spending. His report recommends that “states seriously consider initiating the Article V constitutional amendment process to restrain the federal government.” Libertarians have gotten into the act as well, with law professor Randy Barnett making the case for a federalism amendment.
The Constitution has been amended twenty-seven times, always beginning with an amendment proposed by Congress. Six other amendments sent by Congress to the states were not ratified. Although the other procedure for proposing amendments has never been used, Article V of the Constitution does allow for the states to apply to Congress for an amendment-proposing convention:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Without getting into the debates among conservatives over the feasibility and desirability of a “con-con,” there are several reasons why the whole idea is just a big waste of time.
First of all, as I previously mentioned, supporters of a constitutional convention are not outraged about flagrant abuses of federal power like the war on drugs, the war on terror, and the U.S. empire. If they’re not going to strike at the root of problem, then why bother.
Second, although the states should be bulwarks of liberty against federal tyranny, they can’t be relied on to check the power of the federal government when they themselves are fiscally irresponsible and violators of individual liberty and property rights just like the federal government.
Third, the original constitutional convention in Philadelphia in 1787 was supposed to be “for the sole and express purpose of revising the Articles of Confederation.” But what happened? The Articles of Confederation were scrapped and the present Constitution was put in its place. The Philadelphia Convention was hijacked by those who desired a consolidated government instead of a confederate one. Who knows what evil would befall us this time?
Fourth, the federal government has tried to circumvent the Constitution since the very beginning. In the landmark case of McCulloch v. Maryland (1819), which involved the authority of Congress to set up a national bank, Chief Justice John Marshall paved the way for the growth of the federal leviathan:
Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.
This is the national bank that future president James Madison, then a member of Congress, argued against because the power exercised by the bank bill was condemned by “the silence of the constitution,” “the rule of interpretation arising out of the constitution,” and “its tendency to destroy the main characteristic of the constitution.”
Fifth, as is evident from the Supreme Court’s evisceration of the Fourth Amendment that I previously mentioned, the federal government doesn’t follow the Constitution and its amendments now. What makes anyone think it will follow any additional amendments? As constitutional scholar Joe Wolverton has well said:
Until such time as the Constitution is faithfully followed, there is no reason to believe that any amendment passed at an Article V constitutional convention would not be ignored, misinterpreted, and violated as badly as existing clauses to justify the federal government’s unrepentant encroachment into the lives of Americans and into the sovereignty of the states.
The case could be made that over 90 percent of what the federal government does is unconstitutional. You know, things like funding education, the arts, foreign aid, scientific research, and medical care. We don’t need another constitutional amendment; we need congressmen to follow the plain language of the Constitution.
Sixth, even those politicians that say they revere Constitution don’t follow the Constitution. Here is the House Republican “Pledge to America”:
For too long, Congress has ignored the proper limits imposed by the Constitution on the federal government. Further, it has too often drafted unclear and muddled laws, leaving to an unelected judiciary the power to interpret what the law means and by what authority the law stands. This lack of respect for the clear Constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year. We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.
What they should have said, of course, is that Republicans in Congress have ignored the proper limits imposed by the Constitution on the federal government, shown a lack of respect for clear constitutional limits and authorities, and allowed Congress to create ineffective and costly programs that add to the massive deficit year after year.
On the very day they published their pledge, House Republicans voted in overwhelming numbers with Democrats to pass four pieces of legislation that violate the very pledge that they promised to adhere to: The Family Health Care Accessibility Act, The Emergency Medic Transition Act, The National All Schedules Prescription Electronic Reporting Reauthorization Act, and the Training and Research for Autism Improvements Nationwide Act.
Seventh, the Constitution has utterly failed and failed utterly to do what it was intended to do: act as a check on the federal government. James Madison wrote in The Federalist No. 45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
No statement in The Federalist has turned out to be as false and laughable as this one.
And eighth, the Constitution has been a dead letter since the so-called Civil War. In the words of Thurgood Marshall (1908-1993), in a speech at the annual seminar of the San Francisco Patent and Trademark Law Association in 1987 on the occasion of the bicentennial of the U.S. Constitution:
While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.
Our federal system of divided authority was destroyed by Lincoln’s war. In his book Constitutional Government in the United States, Woodrow Wilson maintained that Lincoln’s war to preserve the Union established the principle that “the federal government is, through its courts, the final judge of its own powers.”
Although the Constitution cannot be considered a libertarian document, actually following it would be a tremendous improvement over the situation we are in now. Following it, not amending it.
