Recently, Salon's Paul Rosenberg, in listened in on a conference call hosted by Tea Party activist Charles Kacprowicz, who is pitching the idea that a series of ad hoc constitutional conventions could create a virtual fourth branch of government —essentially a micro-Senate of one representative per state that receives orders from the state legislature. (Kacprowicz's website, CitizenInitiatives.org, isn't super user-friendly, but it offers some helpful suggestions of the sort of things that could be advanced, like an "unborn child" amendment.) What Kacprowicz wants is a system under which 30 votes from 50 people could undo anything that the Congress passes by adding it to the Constitution.
This isn't very different from how the Senate itself was formulated, albeit without the check of requiring executive branch signature and agreement from the House. At inception, the Senate was two representatives from each state, picked by the legislature. Then that system became hopelessly corrupt and the progressive reforms at the turn of the century created the system we have now.
After all, it's already a frustration to residents of higher-population states that smaller states can block pending legislation. When gun control legislation failed last April, The Wire calculated that senators representing 38 percent of America stymied the will of the other 62. If Kacprowicz's proposal miraculously came into effect, it would require less than a quarter of the country's current population to decide to kill any bill or Supreme Court decision.
What's amusing about the proposal is that it, in Rosenberg's presentation, insists that "democracy itself must be off the table," relying on the constitutional establishment of a republic as a key point in the argument. So it essentially sets up a tyranny of the majority, which Kacprowicz embraces because he wants states to control their own destinies. But imagine if a minority of states — some that, say, elected Obama in 2012 — suddenly decided to impede a Republican Congress and president. One suspects that Kacprowicz would be less fervent about his adherence to his assessment of the Constitution.
If it's any consolation, Kacprowicz's dream and Kirby's law are completely and utterly doomed. The document itself bars states from being able to negate federal laws, which was tested and upheld in the 1803 decision Marbury v. Madison. The point of America is not that everyone always gets his way. The point is the opposite: that we put up with each other without freaking out when things turn against us. It's a shame Kacprowicz and Kirby have so little respect for the Constitution's having set it up that way.
This article is from the archive of our partner The Wire.