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).
