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Category: Constitutional Convention
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Published on Monday, 07 April 2014 18:58
By
Dr. Edwin Vieira, Jr., Ph.D., J.D. April 7, 2014
NewsWithViews.com
The more I inflict upon myself the details of the on-going, extensive, and increasingly acrimonious debate about the supposed merits or demerits of what is called an “Article V Convention of the States”, the more my mind returns to the scene I have imagined taking place on Titanic. Having struck the iceberg, the great liner is down fifteen degrees by the head, and sinking fast, while in the Grand Salon her designer Mr. Andrews, Captain Smith, and a gaggle of marine engineers are discussing a new ship, to be built according to a new design which supposedly will obviate the flaw in Titanic that contributed to her demise. While in theory this discussion might have been very illuminating to the participants, it obviously would otherwise have been an irrelevance which could have saved neither Titanic nor a single soul who went down with her.
This, it seems to me, presents a perfect parallel to the present “Article V Convention” debate—a debate so completely out of touch with the actual situation now confronting this country, that one wonders how anyone could take it seriously as an observer, let alone participate in it. Consider the following:
• First, the “Article V Convention” debate does not address the immediate issue of the looming national economic crisis about which every informed observer is warning this country in no uncertain terms. The General Government is buried under some 200+ trillion “dollars” worth of unfunded long-term liabilities. This is an unpayable sum by anyone’s calculus. The failure to pay it will have catastrophic economic, social, and political consequences. The problem will not be solved by Congress. In fact, Congress is making the situation worse. The debt is the great rent in America’s ship of state through which economic dissolution is pouring in. Congress proposes to fix this problem by borrowing more money which can never be repaid. This is equivalent to the lunatic notion that blowing off the rear quarter of Titanic would have saved the ship by allowing the water surging in at the bow to flow out through the new hole at the stern!
If this were not enough, almost all Americans are utterly unprepared to deal with the consequences of the depression, hyperinflation, or combination of the two which collapse of the national economy will cause. Nothing anyone has written in favor of an “Article V Convention” has suggested how any new amendment to the Constitution would deal with this virtual Marianas’ Trench of unpreparedness. And especially how it would deal with this danger right now, not at some distant point in the future after the crisis has broken out and hurled the entire country into chaos.
And if that were not more than enough, the top noises in the Disgrace of Columbia are even now feverishly preparing to impose so-called “martial law” throughout America when the economic catastrophe strikes—in which event, of course, the Constitution will effectively (if illegally) be set aside, and all talk of an “Article V Convention” (or of the ratification of amendments proposed at such a shindig) will become blather even more worthless than it is now.
• Second, even if some part of an “Article V Convention” were addressed to the impending national economic crisis, the process could not be made to work in time. Time may not be everything; but everything depends upon time. The convention has to be called by the requisite two thirds of the States; it has to be held, for who knows how long; and the amendments it proposes have to be submitted to the States for ratification. One or more of the amendments necessary to deal with the crisis must be ratified by three fourths of the States. Each and every such amendment must then be enforced. How many years all this will take, and who will see that it is accomplished (especially with respect to enforcement), is anyone’s guess. And guess is the appropriate word, because no one can possibly predict when, how, and to what end this pie-in-the-sky process can and will be put into effect. We do not have to guess, however, whether the national economic crisis is coming sooner, rather than later—and certainly sooner than any “Article V Convention” could produce any useful amendments to the Constitution which States in the requisite number will actually have ratified.
• Third, one of the more outspoken exponents of an “Article V Convention” (Timothy Baldwin) himself tells us that “[i]t is time for the States to ‘take matters into their own hands’ and quit waiting for Congress to fix itself.” Yes, indeed, it is high time for that. But the question remains, how best to do it? For quite a while, I have been urging revitalization of “the Militia of the several States” as the proper way for the States “to ‘take matters into their own hands’” both in perfect accord with the Constitution and in a manner which will have an immediate and beneficial effect. It should be self-evident how, in both principle and practice, revitalizing the Militia could solve the pressing problems an “Article V Convention” could not possibly solve (and which its proponents do not even claim it could solve).
Not only is revitalization of the Militia the best way to overcome the unpreparedness of the American people as a whole to cope with the effects of a national economic crisis, it is the only way, almost by definition. If there are constitutional institutions, other than the Militia, which are designed to take in the entire adult population of this country—and organize, equip, and train that population to deal with varied Local, State, and National emergencies—I should like to know what they are. Certainly, no new amendment of the Constitution has been suggested by the proponents of an “Article V Convention” which would address the question of Americans’ unpreparedness. So, even if an “Article V Convention” were held, the Militia would nevertheless need to be revitalized for the purpose of overcoming that deficiency as quickly and thoroughly as possible.
In addition, revitalization of the Militia is the only means available to obviate the threat of “martial law”. As my forthcoming book, By Tyranny Out of Necessity: The Bastardy of “Martial Law”, will explain, “martial law” as most Americans understand it is anti-constitutional bunkum. The only “martial” institutions to which the Constitution delegates the authority and responsibility “to execute the Laws of the Union” are the Militia. So the only constitutional form of “martial law”—that is, “law” administered in a fully constitutional manner by some “martial” institutions—must be executed by the Militia, and only the Militia or only subject to the Militia’s control. The Militia, of course, are comprised of We the People themselves. So, if constitutional “martial law” had to be put into effect as the result of a national economic crisis, it would be controlled by the People themselves, and on that basis would hardly pose a threat to the People, unless the People were so politically psychotic that they would go about oppressing themselves. Again, no new amendment of the Constitution has been suggested by the proponents of an “Article V Convention” which would address the question of “martial law” (and no amendment is needed, either, because the Constitution already provides sufficient authority to the Militia in that respect). So, even if an “Article V Convention” were held, the Militia would nevertheless need to be revitalized for the purpose of assuring that “martial law” remained under the People’s control.
It also should be obvious that revitalizing the Militia avoids the worst practical problems associated with an “Article V Convention”. In contrast to the process under Article V: (i) Under the present Constitution revitalization of the Militia can be accomplished with no need for any constitutional amendment, convention, or other extraordinary proceeding—a single statute in each State being sufficient. (ii) Revitalization of the Militia does not require two thirds, or three fourths, or even a majority of the States to act in unison, but can be accomplished State by State, one State at a time, no matter what other States do or refrain from doing. (iii) Revitalization of the Militia does not require any participation by Congress. And (iv) revitalization of the Militia involves direct participation by all of We the People, not just the few who might be selected—by Heaven knows what sort of political swindle—as delegates to a convention.
• Fourth, even if all the warnings prove to be wrong, and no national economic crisis breaks out after all, the Militia will still have to be revitalized. The proponents of an “Article V Convention” all claim that they wish to preserve the merits of the original Constitution, and simply pear away by amendments the accretions of usurpation and tyranny which have developed over the years, particularly at the level of the General Government. If they are telling the truth, then they must want to preserve—and to see properly enforced—the Second Amendment and the Militia Clauses of the original Constitution. For none of them has suggested that some new amendment should repeal those provisions.
What, though, does the Second Amendment tell us? That “[a] well regulated Militia” is “necessary to the security of a free State”. “Necessary”, not optional. Which is also why the original Constitution incorporates the Militia as permanent parts of the federal system. Are the Second Amendment and the original Constitution both wrong? If not, then why are the proponents of an “Article V Convention” not expending at least some of their considerable energies to revitalize the Militia? Why should anyone concern himself with amendments to the Constitution, the value of which is debatable, when the institutions which the Constitution describes as “necessary”, and the value of which is therefore beyond debate, remain moribund in every State? Should not everyone’s priority be to revitalize the “necessary” institutions before taking on arguably unnecessary (and perhaps counterproductive) tasks? Or are we to accept the glaring self-contradiction that, although the Militia are “necessary”, nevertheless no need exists to revitalize them? Can the Militia be “necessary” and yet “unnecessary” at the very same time?!
Perhaps some proponents of an “Article V Convention” do not believe that “[a] well regulated Militia” is “necessary to the security of a free State”. If so, they should candidly describe what they do consider “necessary” for that purpose, and just how the new amendments they propose will achieve that goal even while the Second Amendment and the Militia Clauses of the original Constitution are left unenforced. Inasmuch as the overriding purpose of the Constitution as a whole is precisely to guarantee “the security of a free State” to all Americans, it would seem that if the Second Amendment and the Militia Clauses are not to be enforced, then something absolutely needs to be included in the compendium of new amendments in order to perform their erstwhile function. I, for one, wait with breathless anticipation for the proponents of an “Article V Convention” to describe the new amendments which they claim will serve that end.
• Fifth and last, NewsWithViews readers have been instructed by one of the foremost advocates of an “Article V Convention” that we all need to be “pragmatic”. Now, one might dismiss such a recommendation with the old saw that “the problem with pragmatism is that it does not work”. But, being scientifically trained myself, I am inclined to perform the experiment and see if the results predicted by theory are confirmed in practice. The Constitution tells us that “[a] well regulated Militia” is “necessary to the security of a free State”. To test that theory, one needs to have “[a] well regulated Militia”. To have “[a] well regulated Militia” today requires the revitalization of the Militia, State by State. Once that experiment has been performed, either the States which revitalize their Militia will achieve, or at least move in the direction of, “the security of a free State”, or they will not. The experiment will verify or falsify the theory. And that fairly quickly, in decided contrast to the elongated process of an “Article V Convention”. So, as “pragmatists” to the extent of being willing to test the theory of “pragmatism”, why do we not perform the experiment of revitalizing the Militia—even in just a single State—and see what happens? If the experiment succeeds, it may obviate the supposed need for an “Article V Convention” entirely, or at a minimum put into sharper focus than we have now what ought to be done through such a convention. If the experiment fails, it may convince the opponents of an “Article V Convention” to change their minds—for if the Constitution could be so wrong as to describe the Militia as “necessary to the security of a free State” when they are not, it could very well be wrong in many other particulars, and therefore might need a comprehensive overhaul.
In any event, let us not try to “fix” a tool which is not broken; and let us determine whether the tool is really broken by putting it to its prescribed use, and gauging the results against the promises made by the manufacturer.
To be fair to the proponents of an “Article V Convention”, I must add that most of the opponents of such a convention, too, seem to have missed the constitutional point I am trying to make. America’s problem is that We the People who ordained and established the Constitution have defaulted on their sovereign responsibility to enforce it. And not just indirectly through their careless selection of incompetent and even disloyal “representatives”. But by themselves directly. After all, the Constitution explicitly provides for, and expects, its enforcement by the People through delegation to the Militia of the authority and responsibility, the power and the duty, “to execute the Laws of the Union”. To execute that power and perform that duty the People need to have their Militia extant, operative, and effective. This can be accomplished without any amendments, conventions, or other essentially “Star Trek” science-fiction schemes to refashion the Constitution. But it will require that the People demand it.
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Category: Constitutional Convention
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Published on Sunday, 01 December 2013 16:32
By Dr. Edwin Vieira, Jr., Ph.D., J.D.
October 16, 2013
NewsWithViews.com
Timothy Baldwin’s latest column, “The Fallacies of Anti-Article V Advocates”, is (as usual with him) a well-presented statement of his position on the advisability—perhaps he would say the urgency or even the necessity—of calling “an ‘amendment-proposing convention’”. Yet I detect at least three problems with his argument: two of these relating to the main issue of the utility of such a convention, the third to whether such a convention is really the course of action the law and the times dictate.
I. Article V of the Constitution provides that “[t]he Congress, * * * on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments”. The language “shall call a Convention for proposing Amendments” sets out a constitution duty in Congress. It embraces a constitutional power as well. That brings into play Article I, Section 8, Clause 18, which delegates to Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [that is, in Article I, Section 8, Clauses 1 through 17], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”. The power to “call a Convention for proposing Amendments” is one of those “all other Powers”. Therefore, pursuant to that power, Congress may enact whatever “Law[ ] which shall be necessary and proper for carrying into Execution the * * * Power[ to call a Convention]”.
What might such a “Law[ ]” entail? First, it would not necessarily have to accede to every jot and tittle of whatever proposals appeared in “the Application of the Legislatures of two thirds of the several States”. Article V does not require Congress, in the manner of a robot, mechanically to adopt “the Application of th[os]e Legislatures” word for word. An “Application” amounts to a request to Congress for it to exercise its power in the premises, not a dictation by the States of how that power must be exercised. This raises an host of both substantive and procedural questions.
First, Congress could arguably influence the substance of such a “Convention”. Presumably, an honest Congress would include in its ultimate “call[ing of] a Convention” the particular amendments the States had proposed, as part of the “Convention’s” agenda. But nothing seems to preclude an honest Congress (and certainly a dishonest one) from offering its own proposed amendments for consideration at the “Convention”—if, for example, the “necessary and proper” “Law[ ]” Congress enacted for “call[ing] a Convention” were passed by a two-thirds majority in each House, so that it could be said that the “Law[ ]” also satisfied the requirement of Article V that “[t]he Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments”. This would not be a “run-away convention” according to the plain text of Article V; but it certainly might be according to the fears of many opponents of a new “Convention”, especially given the rogue Congress that now sits in the Disgrace of Columbia to the vexation of this country.
Second, Congress arguably could influence—I should think could control—the procedures employed at the “Convention”, with decided, if not decisive, effects upon the “Convention’s” substantive outcome. And, self-evidently, some procedures must be specified. For example, Congress might determine how delegates to the “Convention” were to be selected, or perhaps could select them itself. Congress might determine when, where, and for how long the “Convention” would meet. It might specify what rules of order were to be used, including whether a simple majority of the delegates, or some super-majority, or voting by individual delegates or only by States were allowable. And so on.
II. Who is to say that such a “Law[ ]” as hypothesized above would not be, at least in the collective mind of Congress, “necessary and proper”? Indeed, who is to say that some such “Law[ ]”—embracing the composition, agenda, and rules of procedure of a “Convention”—would not be “necessary and proper” in the mind of any rational individual? According to what I take to be Mr. Baldwin’s view of “judicial supremacy”, though, only the Supreme Court would enjoy the ultimate, final, and unreviewable authority to pass on the “necessity” and “propriety” of that “Law[ ]”. Now, I do not share Mr. Baldwin’s opinions as to the powers, the role, and especially the supremacy of the Supreme Court in America’s constitutional system. In this country, only WE THE PEOPLE, not any (or all) of their fallible agents, enjoy such supremacy.
There is, for example, no question that the more grotesque of what Mr. Baldwin charitably calls “judicial errors” can be corrected by impeachment of errant Justices pour encourager les autres. Impeachment would seem to be a far simpler exercise of Congressional power than amendment of the Constitution, especially inasmuch as an admitted “judicial error” (let alone a “judicial crime”) is, by legal hypothesis, not part of the Constitution at all, and therefore does not need to (and logically cannot) be expunged by an amendment. Impeachment, of course, is not the only way, short of an amendment, to deal with “judicial errors” that derive from simple stupidity, let alone those better characterized as calculated usurpation and tyranny. I have dealt extensively with this problem in my book How To Dethrone the Imperial Judiciary, and will not repeat all of that here.
But let us take as a given, for purpose of argument, that Mr. Baldwin is correct, and that “judicial errors”, no matter how corrupt, dishonest, or even criminal, can be corrected only by an amendment of the Constitution. What, then, if the scenario posited above actually occurs, the proponents of Mr. Baldwin’s “‘amendment-proposing convention’” find themselves hoisted with their own pétard, some of them somehow manage to bring a “Case” or “Controversy” to the Supreme Court (perhaps in the Court’s “original Jurisdiction” in the name of one or more of the States which originally submitted the “Application”), and the Supreme Court rules in favor of what Congress has done?! Then what?
Obviously, Mr. Baldwin has, somewhat imprudently, left out of consideration the problem that, if the need for a new “Convention” arises out of the long list of “judicial errors” which derive from the (false) doctrine of “judicial supremacy”, but that (false) doctrine is not corrected before the new “Convention” is held, then the “Convention” (as well as its aftermath) will remain at the mercy of the (false) doctrine it is meant to correct. Holy self-contradiction, Batman! That does not appear to be a plausible way of dealing with the problem, especially in light of the vast amount of time-consuming and costly political wheel-spinning which would have to be put into obtaining the “Convention” in the first place.
It would seem, therefore, that any proposal for a “Convention” must, first and foremost, describe in some detail exactly how the “Convention” will solve, or at least circumvent, the problem of “judicial supremacy”. Absent such a solution, the call for a new “Convention” appears to be little more than “pie in the sky” without a crust to hold it all together.
III. Finally, I feel the need to emphasize once again (and as far as I am concerned, for the last time in this context) that the constitutional remedy which I contend is actually “necessary” at this juncture in the course of human events, and which the Constitution itself tells us is “necessary” at all times—that is, revitalization of “the Militia of the several States”—does not posit, let alone require, (in Mr. Baldwin’s words) “having to use force”, in some “revolutionary” manner, in order to enforce the Constitution. The Constitution itself delegates to the Militia the authority and the responsibility “to execute the Laws of the Union” (and the laws of the several States within the States, especially to the extent that those laws might contravene “the Laws of the Union”). This authority and responsibility is thus to be exercised within the Constitution, perforce of the Constitution, and for the purpose of enforcing the Constitution—not extra-constitutionally let alone un-constitutionally.
And it is an authority and responsibility to be exercised by the Constitution’s very principals, WE THE PEOPLE themselves, not simply by their incompetent and even disloyal “representatives” and other putative “agents”. As I have written several books on this subject, I need do no more than remind readers of this column that printing has been invented, and that they should take advantage of this invention.
In sum, it seems that the debate on this subject takes us back, once again, to the Grand Salon of Titanic on that fateful night. The great liner is sinking—about that no possible doubt can be entertained. Mr. Andrews (the ship’s designer), Captain Smith, and other well-meaning and well-informed individuals are gathered around a table, drafting plans for a new and better liner. As Mr. Andrews points out (perhaps correctly), if in the new ship the watertight bulkheads are raised well above “E deck”, the calamity which has befallen Titanic will be obviated. That, however, will not save Titanic, let alone the hundreds who must perish with her. In the case of the great ship of state America, the lives, fortunes, and freedoms of millions, not just hundreds, are now at stake. And time is rapidly running out. Can we really afford to be drafting new designs for a future which may never come? Or should we instead focus on maximizing damage-control with the very tools the Constitution describes as “necessary”, and which are available now if only we put them to use? On the theory that “it is better to light one candle than to curse the darkness”, I submit that it is more prudent to go about lighting the actual candle we have at hand than to concern ourselves with other merely theoretical candles which may very well turn out to contain neither wick nor wax.
Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment. He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com His latest book is: "How To Dethrone the Imperial Judiciary" ... and Constitutional "Homeland Security," Volume One, The Nation in Arms...http://newswithviews.com/Vieira/edwin262.htm
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Category: Constitutional Convention
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Published on Sunday, 01 December 2013 16:20
Publius Huldah
September 21, 2013
NewsWithViews.com
What Mark Levin says in “The Liberty Amendments” in support of an Article V convention is not true.
[1] On one side of this controversy are those who want to restore our Constitution by requiring federal and State officials to obey the Constitution we have; or by electing ones who will. We show that the Oath of Office at Art. VI, last clause, requires federal
[2] and state officials to support the Constitution. This requires them to refuse to submit to - to nullify - acts of the federal government which violate the Constitution. This is how they “support” the Constitution!
We note that the Oath of Office requires obedience to the Constitution alone. The Oath does not require obedience to persons, to any agency of the federal government, or to any federal court.
We understand that resistance to tyranny is a natural right – and it is a duty.
We have read original writings of our Framers and know what our Framers actually told the States to do when the federal government violates the Constitution: Nullification of the unlawful act is among the first of the recommended remedies–not one of which is “amendment of the Constitution.”
[3] It is already proved in “
James Madison Rebukes Nullification Deniers” that our Framers endorsed nullification by States of unconstitutional acts of the federal government. Thomas Jefferson and James Madison summed it up as follows:
“…when powers are assumed which have not been delegated, a nullification of the act”[4] is “the natural right, which all admit to be a remedy against in supportable oppression…”[5]
The claims of the nullification deniers have been proven to be false. To persist in those claims - or to do as Levin seems to do and ignore the remedy of nullification - is intellectually and morally indefensible. So why don’t they apologize to the public and recant their errors?
Instead, they continue to tell us that what we need is a “convention of the States” (which Levin and his mentors insist is provided by Article V of the Constitution) to propose amendments to the Constitution, and that this is the only way out.
Yes, they tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is …. to amend the Constitution!
Do you see how silly that is?
Levin’s Amendments
Levin starts his book by saying how bad things are and how the federal government has trampled and mangled the Constitution. Those pages are true. And they serve the purpose of making readers believe that Levin is “on our side.” And because of that, many are induced to lay aside their critical thinking skills and accept on trust what Levin tells them. That is a deadly mistake.
Levin’s amendments actually gut our Constitution. Most increase the powers of the federal government by making lawful what is now unconstitutional because it is not an “
enumerated power.” Others put a band-aid on a problem without solving the problem. The amendments pertaining to “overrides” undermine the Constitution as the Objective Standard of what is lawful and what is not – and substitute majority vote therefore.
[6] A Defective Constitution? Or a Disobedient Federal Government?
We must distinguish between defects within a Constitution, and a government’s refusal to obey the Constitution to which it is subject. These are different problems calling for different remedies.
There were defects in the Constitution produced by the Federal Convention of 1787, such as provisions permitting slavery. Provision for amendment must be made to repair such defects.
[7] But our problem now is a disobedient federal government. That calls for different remedies – and our Framers spelled them out.
[3] It is idiotic to assert that you can rein in a federal government which ignores the Constitution by amending the Constitution! Yet, that is “The Levin Plan.”
Now let us read Article:
What Article V Really Says
“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…” [boldface mine]
Note that Congress “calls” the Convention. The States don’t “call” it – all they can do is apply to Congress for Congress to call it.
There are many questions about Article V conventions; and James Madison raised them on two occasions at
the Federal Convention of 1787:
[8]
• On September 10, Madison remarked on the vagueness of the term, “call a Convention for the purpose”: How was a Convention to be formed? By what rule decide? What the force of its acts?
• On September 15, Madison commented on this again, and said that difficulties might arise as to the form, the quorum, etc., which in constitutional regulations ought to be avoided when possible.
Mr. Madison saw that these questions are not addressed by Article V. Eagle Forum has also raised this issue in
Twenty Questions about a constitutional convention. But since Congress “calls” it, Congress has the power to appoint whomsoever they will as delegates;
[9] and nothing in the Constitution says they can’t do this.
Now note that Art. V provides for two conventions:
• The first is the one called by Congress to propose amendments.
• After amendments are proposed, Art. V empowers Congress to select the mode of ratification: Shall the State Legislatures be the body to ratify or reject? Or shall each State convene a convention for the purposes or ratifying or rejecting the proposed amendments?
The only convention Art. V authorizes States to convene is one within their respective borders to ratify or reject an amendment proposed by Congress or by the convention Congress called.
What Levin Claims Article V Says
As you see, Art. V makes no provision for a “state convention process” where the States control the convention.
Yet Levin makes the bizarre claims (cp 16-17) that Art. V authorizes this “state convention process”; and that the convention called by Congress pursuant to Art. V is really:
• A “creature …of the state legislatures”;
• That during ratification of our Constitution, the Founders always talked about conventions for proposing amendments as representing the States; and
• That the state legislatures determine the method for selection of their delegates; and the subject matter of the convention.
Does Levin cite any authority for these claims? Words of our Framers, perhaps?
No! He cites an article written by former law professor, Robert G. Natelson, who Levin says is an “expert” on this “state convention process” (p16, notes 28 & 29).
Here is the article by Natelson Levin cites as “authority” for his claims. Note that:
• Natelson announces that he will no longer call what he wants a “constitutional convention.” Henceforth, he will call it a “convention for proposing amendments,” an “Article V Convention,” an “amendments convention” or a “convention of the states.”[10]
• Natelson doesn’t cite any authority from our Framers for the claims Levin regurgitates in his book. Instead, Natelson cites other law review articles; and
• Natelson claims it was “custom” at the time of our Founding for States to have all these powers in conventions.
Custom?
Natelson’s article is no authority at all. And even if he had proven that the “custom” at the time of our Framing was for States to have all these powers in conventions [someone really should have told James Madison about this “custom”]; what is there to make the Congress of today follow this 18th century “custom” when Congress“calls” the convention under Art. V?
Levin also says he knows Congress’ role in the “state application process” is minimal and ministerial because:
• The Framers and ratifiers adopted this “state convention process” for the purpose of establishing an alternative to the congressionally initiated amendment process; and
• Alexander Hamilton said so in Federalist Paper No. 85.
Here, Levin commits the logical fallacy of “
circular reasoning”: We know, Levin argues, that Congress’ role in the state application process is “minimal and ministerial” because the Framers adopted this as an alternative to the method where Congress proposes the amendments directly. Do you see?
Levin next claims that in Federalist No. 85, Hamilton said, respecting an Art. V convention, that Congress has “no option,” “will be obliged,” and that “nothing in this particular is left to the discretion of that body” (p 16-17).
Levin misrepresents what Hamilton says. In
Federalist No. 85, Hamilton merely says that Congress must call a convention when two-thirds of the States apply for it:
“… By the fifth article of the plan, the Congress will be obliged … on the application of the legislatures of two thirds of the States … to call a convention for proposing amendments … The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. …”
Levin wrongly extends Congress’ lack of discretion on the issue of “to call or not to call” to what follows the “call”: How the convention is to be formed, the appointment of delegates, the other questions raised by Madison on September 10 & 15, 1787, and Eagle Forum’s Twenty Questions.
I have never seen any of the Framers say that Congress has no power over what follows Congress’ “call”; and Levin doesn’t produce evidence that any of them ever did.
Levin misrepresents what happened at the Federal Convention of 1787.
This 4 page chart lays out what really happened at that Convention respecting Article V.
To introduce his discussion of that Convention, Levin makes the following fanciful claims:
“The Constitution itself provides the means for restoring self-government and averting societal catastrophe (or, in the case of societal collapse, resurrecting the civil society) in Article V.” (p 12)
“The fact is that Article V expressly grants state legislatures significant authority to re balance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful…” (p12-13)
Of course, Article V says no such thing!
Levin then quotes Edmund Randolph & George Mason, delegates to the Convention, as support for his claims respecting the purpose of Art. V.
Mr. Randolph & Col. Mason wanted a method of amendment Congress had nothing to do with. This became an issue at the Convention; Randolph & Mason held the minority view.
On September 15, 1787, Randolph & Mason said they would not sign the Constitution unless Art. V were amended to require another general convention to approve amendments proposed by what they called “state conventions.”
So they moved that the following be added to Art. V:
“that amendments to the plan [Constitution] might be offered by the State conventions, which should be submitted to, and finally decided on by, another general convention.”
This was voted on and all the States answered, “No.”
So Randolph & Mason - on whom Levin relies to support his fanciful claim that the purpose of Art. V is for the States to hold conventions to amend the Constitution when the federal government gets out of line - didn’t sign the Constitution because Art. V didn’t provide for the “state conventions” and the “general convention” they demanded; and Congress retained its major role in the amendment process.
Do you see? Levin and his mentors are trying to resurrect Randolph’s & Mason’s plan of “state conventions to propose amendments” which was REJECTED by the Federal Convention of 1787!
Our Framers’ Concerns about “Conventions”
Now let us examine the “convention for proposing amendments” which Congress calls pursuant to Art. V; the “runaway” the Federal Convention of 1787 turned into, and “general conventions.”
We saw that James Madison raised concerns on
September 10 & 15, 1787, about Art. V conventions called by Congress, because of questions respecting how was a Convention to be formed, by what rule, & the procedures of such conventions.
Yet Levin claims that in Federalist No. 43, Madison shows he considered an Art. V convention as prudent a method of amendment as having Congress propose the amendments (p 15).
Madison does not say that in Federalist No. 43!
[11] Second, Levin’s claim is contradicted by
Madison’s words in his letter of November 2, 1788 to G. L. Turberville on the same subject.
In his letter to Turberville, Madison speaks, with reference to modes of originating amendments, of both a “general convention” and an “Article V Convention,” on the one hand; and, on the other hand, “the origination of amendments in Congress.”
Madison advises that amendments be originated in Congress - not in an Art. V Convention, for the various reasons set forth in his letter; and that:
“2. A [“general”] Convention cannot be called without the unanimous consent of the parties who are to be bound by it, if first principles are to be recurred to; or without the previous application of - of the State legislatures, if the forms of the Constitution [Art. V] are to be pursued. The difficulties in either of these cases must evidently be much greater than will attend the origination of amendments in Congress, which may be done at the instance of a single State Legislature, or even without a single instruction on the subject…” [boldface mine]
Do you see? Madison advises that when States want amendments, they instruct their Congressional delegation to pursue it. This is the best way for the States to “originate amendments”!
That is the mode Madison strongly recommended; that is the mode we have followed. On
May 5, 1789, Rep. Bland (pages 258-261) introduced into Congress the petition from the State of Virginia for an Art. V Convention to propose amendments. But
on June 8, 1789, Madison (pages 448-460) introduced 12 proposed amendments for Congress to propose to the State Legislatures. And on
September 24, 1789, the House & Senate having agreed on the wording of the proposed 12 amendments; the House requested the President to transmit them to the States for ratification.
If we cannot elect to Congress people who will follow the instructions of their State Legislatures & constituents and propose those amendments which actually need to be made; how can we trust Congress to “call” a convention?
And as to another “general” or “runaway” convention, perish the thought!:
On
September 15,1787, in response to Randolph’s & Mason’s demands for a “general convention” to decide on amendments, Mr. Pinckney pointed out that nothing but confusion and contrariety will spring from calling forth the deliberations and amendments of the different States, on the subject of government at large. States will never agree in their plans; and the deputies to a second convention, coming together under the discordant impressions of their constituents, will never agree. “Conventions are serious things, and ought not to be repeated.”
In
Federalist No. 85 (9thpara), Hamilton spoke of:
“…the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded...”
James Madison warned against another general convention in
his letter to Turberville:
“3… an election into it would be courted by the most violent partisans on both sides; it … would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. … it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first Convention, which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America…” [boldface mine]
Do we have “violent partizans,” “individuals of insidious views,” and any who would exploit an opportunity to sap “the very foundations of the fabric” today? Yes, we do. They are in Congress, the executive branch, the federal Courts, “conservative” circles – and they are invading our Country at a furious rate. And what now is the “present temper of America”?
Why a “Runaway” Article V Convention is a Real Possibility and a Grave Danger.
Pursuant to the authority granted by Article XIII of
field%28DOCID%2B@lit%28rbpe17802600%29%29" target="_blank">The Articles of Confederation, the Continental Congress Resolved on
February 21, 1787 (p 71-74):
“Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions there in as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” [boldface mine]
So! The Convention of 1787 was called by the Continental Congress for the “sole and express purpose” of proposing revisions to the Articles of Confederation.
But the delegates ignored these limitations and wrote anew Constitution.
[12] As to delegates, the Continental Congress expressly directed the States to appoint the delegates.
But there is no requirement in Art. V of our Constitution that States be permitted to appoint delegates; and no “custom” from the era of the Continental Congress can bind the Congress of today.
So if Congress of today were to call an Art. V convention, Congress would most likely get delegates who would do what Congress wants.
And will Congress appoint Islamists as delegates? La Raza Mexicans? Other special interest groups? How can Congress be prevented from appointing whomsoever they will?
And if the delegates duly appointed by Congress, and acting under the Authority of Congress, come up with a new Constitution, will the new Constitution outlaw Christianity? (Obama is outlawing it in the military, and Congress isn’t doing a thing about it). Will it institute Sharia? Will it disarm the American People? Will it follow the UN Model where “rights” are privileges granted and withdrawn by the State? Will it outlaw private property?
And this new Constitution will have its own mode of ratification. This new mode of ratification can be whatever the delegates want – a majority vote in Congress, perhaps?
There is no way to stop them from “running away” and writing a new Constitution with its own mode of ratification. They can cram a new Constitution down your throat and you won’t be able to do a thing about it.
On page 15, Levin commits
a formal fallacy (an argument defective as to form) when he attempts to prove that an Art. V convention can’t possibly turn into a “runaway.” Here is the form of his argument:
1. He was originally skeptical of “the state convention process” because it could turn into a “runaway.”
2. Art. V says a proposed amendment has no effect unless ratified by ¾ of the States.
3. Therefore, the “state convention process” can’t result in a “hijack of the Constitution” [“runaway”].
His conclusion (3) is a form of non sequitur – it doesn’t follow from the premises (1 & 2). And our concern is not with amendments – those are subject to approval by three-fourths of the States. Our concern is that the convention will “runaway” and write a new Constitution with a new mode of ratification which does not require approval by three-fourths of the States. Do you see?
Conclusion
Few of us can name even 5 of the enumerated powers of Congress and 4 of the enumerated powers of the President. Why? Because we never bothered to learn our Constitution. Alexander Hamilton expected THE PEOPLE to be “
the natural guardians of the Constitution.” But you can’t “guard” the Constitution if you don’t trouble yourself to learn it.
Since we never bothered to learn the Constitution, we elected politicians who also hadn’t bothered to learn it. So they ignored the Constitution when they assumed office.
This is why, after more than 100 years of electing politicians who ignore the Constitution, we are now under tyranny and headed for disaster.
Do we now want a way out which allows us to avoid confronting our own personal failures as Guardians of the Constitution? When charlatans who “sound good” offer us a scapegoat, do we jump on it? Do we chant, “The Constitution is broken! Fix the Constitution!” And shall we pretend that we too know all about how to amend a Constitution most of us never bothered to read?
Our Constitution depended on our knowing our Constitution and in electing representatives who would obey it - and getting rid of them when they didn’t. James Madison said on
June 20, 1788 at the Virginia Ratifying Convention:
“…. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.”
We are in a “wretched situation” because we lost our virtue. Renounce handouts and pride in pretended “knowingness.” Learn the enumerated powers of Congress and the President.
This chart will get you started. Learn about
nullification. Form delegations and go to your State Legislators, educate them and demand they start nullifying unconstitutional acts of the federal government.
States should nullify obamacare! If Legislators aren’t willing to renounce federal funding, recall or defeat them!
Endnotes:
1. We must stop believing whatever we are told. We must demand proof by original source documents, and think for ourselves.
2. The President’s Oath is set forth at Art. II, §1, last clause.
3. These are among the remedies our Framers advised when the federal government usurps power:
-In
Federalist No. 44 (12thpara from end), Madison say select more faithful representatives!:
“… In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers…”
But we keep reelecting the same sorry people because we know their names and they are in our party.
-States should nullify unconstitutional acts of the federal government! This is proven with links to original sources in
James Madison Rebukes Nullification Deniers.
-In
Federalist No. 46 (last half), Madison shows how individual States or several States carry out various degrees of resistance to the federal government’s unconstitutional encroachments. See also:
What Should States Do When The Federal Government Usurps Power? -In
Federalist No. 28 (last 5 paras), Hamilton says:
“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success …” [italics mine]
“…The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them…”
“It may safely be received as an axiom …that the State governments will … afford complete security against invasions of the public liberty by the national authority…. The legislatures … can at once adopt a regular plan of opposition…”
“…When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people … who are in a situation, through the medium of their State governments, to take measures for their own defense...”
4. Thomas Jefferson,
The Kentucky Resolutions of 1798, 8th Resolution.
5. James Madison,
field%28DOCID%2B@lit%28jm090163%29%29" target="_blank">Notes on Nullification (1834). The quote is near the end. Use “find” function.
6. Later, I will show why Levin’s proposed amendments gut our Constitution. Meanwhile, you read the Constitution, learn the
enumerated powers of Congress, and see if you can figure out what is wrong with the proposed amendments. Use your own head and trust no one.
7. Alexander Hamilton said on
Sep. 10, 1787 that an easy mode should be established for fixing defects which will probably appear in the new system ... the National Legislature will be the first to perceive, and will be most sensible to, the necessity of amendments…
8. What happened at the Federal Convention of 1787 respecting Art. V is laid out in
this 4 page chart.
9. “Citizens for Self-Governance,”
headed by the
Michael Farris who is pushing the “parental rights amendment, represents that the “Convention of the States” will soon:
“…open the application process for leadership positions across the country. Consider applying to be a District Captain, Legislative Liaison, or State Director…”
thereby making the gullible believe that they can be a “player” in this “Convention of the States.”
10. Phyllis
Schlafly, Kelleigh
Nelson, Henry
Lamb and others have done such a magnificent job of warning The People of the dangers of a constitutional convention, that many now understand that such is likely to result in anew Constitution - with its own method of ratification - being forced on us.
So! Proponents now cal lit by another name: “Convention of the States” or “state convention process.” Is the purpose of the name change to deceive you?To make you think it is something “different” from the Art. V convention Congress calls?
11.
In Federalist No. 43, Madison comments on Art. V:
“8…That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other…”
12. We were fortunate (except for slavery) with the Constitution of 1787, even though the Federal Convention was a “runaway”. Look who was there!: George Washington, James Madison, Alexander Hamilton, and Benjamin Franklin; and they weren’t drowned out by subversives. They would be today.
http://newswithviews.com/Publius/huldah122.htm
