Wednesday, December 18, 2013

A Test of Character on an Article V Convention


The conservative movement is being split over the idea of whether we should or should not back an Article V Convention for the purpose of amending the constitution.   I am at great disadvantage on this question because I cannot tell my friends what they wish to hear.   On the other hand, I am at a great advantage because I am telling them the truth, and for people of virtue the truth has a power all of its own.  Here then is my testimony and findings of fact in this matter for your consideration:

Most of the debate over whether we should pursue Mark Levin's plan for a Convention centers on the question of whether such a convention can be "hijacked" for purposes beyond the scope intended by those grassroots people who first got the ball rolling on it.   Of course it can.   The idea that such an attractive target, with so much power at stake in one central location, will remain confined strictly to the wishes of those back home who originated the idea, is completely unreasonable.   The chances of a hi-jack may be low, or they may be high, but they will not be zero.   I think they will be high.   As a rule, the more power you have at stake in a distant central location, the greater the chances that this power will be used in a way not anticipated by or agreed to by those far away from that location.   This is the whole problem of Washington in a nutshell.

Phyllis Schlafly and others point out that the convention which produced our present constitution was itself a "runaway convention." It was originally authorized by Congress only and solely to suggest amendments to the then-existing constitution, called the "Articles of Confederation".  The Continental Congress did not give the delegates any authority to produce an entirely new compact.  On the pro-convention side, men like Michael Farris attempt to dismiss Schafly's concerns.   Farris' highly deceptive arguments are dealt with here.   

If that link is not enough to convince you, consider that in the 1787 convention two-thirds of New York's delegation left when they realized that the convention had "gone rogue" and was exceeding their authority in writing a new constitution rather than suggesting amendments for the then-existing one.   Here is the report of those two delegates where they explain just that.  If any of you are wondering which side is telling you the truth about this issue, those two short links, the one in this paragraph and the one which ends the paragraph above, should tell you all you need to know.  It is then up to you if you want to side with those who are telling you the truth, or those who are not.

Levin sells readers on the idea that James Madison, considered the "father of the Constitution", included Article V as some sort of "fail safe" if people lost control of their government.   The truth is that Madison was a federalist.  One, to his credit, who accepted that the Constitution we wound up with gave the central government less power than he would have liked, but a federalist never-the-less.   His passages in the Federalist Papers that Levin cites are explanations of what an Article V convention would be like, not an endorsement of an article V convention.  If you want to know how Madison really felt about a "General Convention" which was similar to though not necessarily the same as an an Article V convention, then look to his letter to one G. L. Turberville in Nov. of 1788:

"3. If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system; it would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partizans on both sides; it wd probably consist of the most heterogeneous characters; 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. Under all these circumstances 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 and under all the disadvantages I have mentioned."

So while Levin is going around selling this thing as Madison's provision for the people to take back a wayward federal government, Madison himself thought a similar convention would be a disaster.  As a federalist, he much preferred that any changes go through Congress.   The option to go through the states to call a convention was an attempt to peel off supporters of the George Mason position that there should be a way to amend the constitution which completely by-passed Congress.   Mason lost that one, and many others.

Madison and the other federalists stole a march on the anti-federalists when drafting Article V. It is Congress which gets to issue the call to convention which produces whatever amendments the states are even allowed to consider. It is they who decide whether those amendments are to ratified by "conventions" or by the state legislatures. 

Who decides who gets to be a delegate at the amendments convention? The article is silent on that, but it does say Congress is giving the call, and it will take only one federal employee (a judge) to determine that they get to decide. Do you think I will get to be a delegate under that scenario? Do you think you will be? We will see conventions run by "community organizers" before we see that.  

Some Indiana Senator thinks he can use state law to insure that delegates to an Article V convention stay within the state-mandated call to convention.   That is an absurd vanity.   Congress, and Congress alone, is authorized by the Constitution to give the call to convention, and there is every reason to believe that any federal judges who would decide the matter would rule that what the Constitution itself says on the matter would trump Indiana law.   We discovered a decade or so ago that Arkansas cannot limit the terms of Congressmen because judges ruled that the federal constitution does not explicitly permit them to do so.  In the same way it is extremely probable that federal judges will rule that states cannot limit the purview of Article V convention delegates.  Indeed the case is even stronger for that because the Constitution is not just silent as to who has the power to define the terms of the convention, but explicitly says that Congress is to issue the call.

If any amendment, any words on paper, really could turn dishonest men into honest ones then the plan will still fail because the dishonest men get to decide on what amendments may be considered for ratification, and to some unknown extent even who votes to ratify those words into the constitution.   Even if the conventions in the states are not picked by Congress, what those conventions get to vote on is decided by a convention which will be. 


OK, so the risk of having an Article V Convention is not zero, the risk may even be high, but if the potential reward is also high couldn't that justify the high risk?   Perhaps.  But the potential reward is not high.  No matter how well he sells it, even if Levin got every amendment he is pushing ratified into the Constitution it would not fundamentally solve any of our government's problems.   I have broken down the policy value of four of his amendments, but the one on taxation is most instructive because the math is so clear.   Read this analysis of the policy impact of his suggested amendment on taxation and then decide if you think he is selling real answers or false hope.  It is the same on the others.  No monetary proposal which leaves the Federal Reserve system unscathed will fundamentally solve any of our problems in this vital area of government.

There then, are enough of the facts of the matter so that an honest person might distinguish between who is offering you hard truth and who is selling false hope.   I know that people are anxious right now, and this is the political equivalent of a "get rich quick" scheme.   We don't have to do the hard work of turning over our state legislature from the sellouts who gave us Obamacare and called it another name.   We don't have to purge our federal delegation who consistently vote against our interests.  We don't have to purge our political party, or God forbid, sever our ties and quit lending our good name to one of the two political gangs which have bankrupted our nation.   No, we can skip all of that hard work.  We don't have to cut our expenses, we don't have to work harder and get more income.  We need only give our account information to this nice salesperson who offers us this way to escape from our dilemma without having to make all of those hard choices.   

This is an enticing idea, but its not the truth.   We are going to have to make some hard choices.  We did not get in this mess in one year or ten and we are not going to get out of it in one year or ten either.   We have a lot of hard work ahead of us, but if we will honor and work for what is true we can, by the grace of God, do it.    But we have to love the truth enough to embrace it even when it involves some pain.  We have to hate lies enough to reject them even when they sound so sweet and relatively easy.  This, like much of life, is not just a choice, its a test of character.

13 comments:

  1. The tragedy of the fear-mongering diatribe you have articulated is, that carried to its logical conclusion, it will assure the utter dissolution of our most sacred document. Why? Because Washington will continue to systematically dismantle the Constitution until it becomes no more than dust on the ash heap of history. At its core, with all the rhetorical trappings removed, your argument is simply that the States are populated by stupid and evil men that can’t be trusted, and only Washington knows best. James Madison and Colonel Mason must be turning in their graves.
    An Article V convention is not a constitutional convention. If you are not clear on that, you need to do further study. An Article V convention is a Convention of States for proposing amendments to the existing constitution, not rewriting it. Moreover, an Article V Convention of States cannot change one word of the Constitution. Any work product of such a convention is still subject to ratification by 38 states in the same manner as amendments proposed by Congress.
    Do you really believe that some small group of conspiratorial delegates to a Convention of States could hijack the convention, convince 2/3 of them to support some wildly radical set of rogue amendments, propose them to the States and that 38 states would then blindly ratify them. Get real. Such a perspective is not rational. You need help.
    The Founders provided the Article V Convention of States provision to deal with an out of control federal government. Its time has come. It may well be the last chance for the people, acting through their state legislatures, to rein in the out of control federal government, restrict its power, limit its jurisdiction, restore our liberties, and reestablish the sovereignty of the states.

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    1. "The tragedy of the fear-mongering diatribe you have articulated is, that carried to its logical conclusion, it will assure the utter dissolution of our most sacred document. Why? Because Washington will continue to systematically dismantle the Constitution until it becomes no more than dust on the ash heap of history."

      So I am the one who is writing a "fear-mongering diatribe" eh? Washington is violating the Constitution in practice, they can't dismember it officially without amending it or changing it in some way. You propose to give them that opportunity.

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    2. "At its core, with all the rhetorical trappings removed, your argument is simply that the States are populated by stupid and evil men that can’t be trusted, and only Washington knows best. James Madison and Colonel Mason must be turning in their graves."

      Anger and denial seems to have gotten the better of your wits. That was not my argument at all. If anything, it was James Madison's argument. I was quoting the man you say would be turning in his grave. Why would he, when I am only citing his opinion? And I was not citing it to make the point that I think the America is full of morons, though over 50% of them did vote for Obama, but to make the point that Mark Levin was being dishonest when he makes out like Madison placed the state call in Article V as some sort of rescue device for the Republic if FEDGOV goes astray. His honest opinion was that we were very lucky or blessed to have gotten away with it once and the next time was likely to be a disaster.

      My position is that the further power is removed from those who have to live under that power, the more unjust its decisions will tend to be. And a convention, especially if composed of delegates selected from among the current political class, is just such an example of distant centralized power. I am not saying we are all fools or knaves, but we have a political system where such tend to gain access to the system while principled men tend to be weeded out. That system needs to be changed before we can trust it to produce a convention which will have a positive result.

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    3. "An Article V convention is not a constitutional convention. If you are not clear on that, you need to do further study. An Article V convention is a Convention of States for proposing amendments to the existing constitution, not rewriting it."

      I studied the words of the man who wrote the thing, who is considered the Father of the Constitution, James Madison. The quote is right there in the article. He holds an amendment V convention to be the same thing as a "general convention". And if one reads the first two links in the article, overwhelming evidence is presented that the original convention which produced our present constitution was itself a "runaway convention" which was only tasked with proposing amendments to the then-existing constitution of the Confederation.

      But this may be a distinction without difference. I deal with legal documents on a regular basis. A short time ago I was dealing with a lawyer who did not like the terms of a right of way that my client had across his client's property. It was poorly written, I admit that, but in a way favorable to my client. Their side wanted a new easement. My client did not want that, but because some of the details were unclear my client was willing to consider amending the easement to clarify a few issues. When I told their attorney we would not agree to a new easement, but only amend the old one, he said, and I want you to hear this "Fine. I am going to amend that thing out of existence."

      In the end we did not let him do it, but he did try. He produced amendments that would completely undo the protections that my client liked in the original document. My point is that it in a very real way it does not matter if a convention can re-write the constitution or merely amend it. If they are creative enough, the latter can do almost as much damage as the former.

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    4. "Any work product of such a convention is still subject to ratification by 38 states in the same manner as amendments proposed by Congress."
      Do you really believe that some small group of conspiratorial delegates to a Convention of States could hijack the convention, convince 2/3 of them to support some wildly radical set of rogue amendments, propose them to the States and that 38 states would then blindly ratify them. Get real. Such a perspective is not rational. You need help."

      I am sure the folks who got blindsided by the 1787 "Amendments Convention" felt the same way. Five of the thirteen ratified it with 55% of the vote or less. But let's move on to today....

      The most likely outcome is that Congress will write a call to convention so that the convention is filled with party hacks and special interests who will shoot down anything that would really hold Congress accountable or threaten the DC two-party looting machine in any way. Remember that the "leadership" of each party gets along with each other much better than they get along with the outsiders of, or the grassroots of, their own party.

      So I think one of the two most likely outcomes is that the "Amendments Convention" blocks everything that does any good and sends for ratification only amendments that will be the barest of window dressing or even somewhat worsen our current troubles. The most likely outcome from that is that the state ratifying conventions will shoot them all down, thus making the whole thing a gigantic waste of time and effort because the grassroots wanted to take a short cut and did not want to do the difficult groundwork necessary to make such a convention a success.

      The other likely outcome is that one or two amendments that appear to do some good will get ratified, and the grassroots will go home thinking they did something, and a only a few years later will they realize that nothing has really changed or that things have actually been made worse. For example, Levin's suggested amendment to stop Judicial Tyranny won't have any substantial effect on Judicial Tyranny, but it would do considerable damage to the State Nullification and Interposition movement, for reasons described here http://localismaphilosophyofgovernment.blogspot.com/2013/09/levin-vs-localist-solutions-on-stopping.html . That won't be immediately obvious though.

      A much less likely outcome, though not outrageously so given the unprincipled people who currently run things, is that Congress will write a call to convention which not only insures that the "Amendments Convention" is stacked with hacks, but attempts to lay restrictions and guidelines for who can be in the state "ratifying conventions" as well. This is highly improper of course, but it would only take a handful of federal employees- judges whose authority could be threatened by a fair process, to rule that it is within their power to do so because Article V gives Congress the power to write the call to convention AND determine if the ratification is done by legislatures or state conventions.

      In that case you would have "state" conventions where the hacks from both parties were delegates, where the heads of the state branch of Planned Parenthood and Sierra Club and other interest groups "stakeholders" were granted seats as delegates, and so forth. Only a small minority of the delegate seats would be reserved for true grassroots citizens. And so you would have 50 state conventions, but stacked with people who did not represent the average person of that state at all but were rather tied in with these D.C. based groups voting on whether to ratify the amendments. If that happens, its good-bye Republic, even on paper. They will do like the lawyer I referenced earlier wanted to do and "amend that thing out of existence."

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    5. "The Founders provided the Article V Convention of States provision to deal with an out of control federal government. Its time has come. It may well be the last chance for the people, acting through their state legislatures, to rein in the out of control federal government".
      ....

      Some of them wanted to insert it for that purpose, but they got out-maneuvered by the federalists with the provision that any call to convention had to be routed through Congress. Madison surely did not insert it for that purpose if his own words in that letter are anything to judge by. If it had been written the way George Mason had wanted it written, it might be useful for that, but the way it is actually written you can't use it for that purpose until Congress has been taken back. It goes through them before it ever gets to the states. So let's quit pining for this "get rich quick" scheme that we can somehow skip all the hard work of taking back Congress and go straight to an Amendments Convention. Good grief, we have a STATE legislature full of sell-outs who voted to fund Obamacare six months after running for office promising not to fund it. How can you even trust them at this point, much less Congress?

      I know it is not fun, but we have to do the groundwork first. Charging into this battle without first making the proper preparations ensures defeat.

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    6. Rebuttal 1 says “Washington is violating the Constitution in practice, they can't dismember it officially without amending it or changing it in some way.” (emphasis added), then claims I, “propose to give them that opportunity.”
      In fact, I propose the opposite, to deny them that opportunity by doing a complete end run around Washington and taking advantage of the Article V Convention of States option.
      The statements emphasized show you well know what Washington is doing. With the new rules for confirmation of judges, how long will it be before our courts are stacked with progressive activists who will orchestrate further dismantling of the Constitution. Apparently you prefer to trust the dismantlers over States you see as largely moronic and untrustworthy.
      Rebuttal 2 makes my point. As Thomas Jefferson said,
      "When all government ...in little as in great things... shall be drawn to Washington as the center of all power; it ....will become as venal and oppressive as the government from which we separated."
      You inaccurately attribute positions to Madison and accuse Mark Levin of being dishonest. Here are relevant facts. In Federalist 43, Madison specifically argued that states should use the Article V power to correct errors in the Constitution. In Federalist 85, Alexander Hamilton said the Article V amendment process was the means by which the states would rein in an out-of-control federal government. The Convention of States option in Article V is largely the work of George Mason. An illuminating historical synopsis is provided in a Harvard Law paper, The other way to amend the constitution. I believe you owe Mark Levin an apology.
      As to rebuttal 3, nowhere in the Constitution will you find the words ”general convention” which you place in quotes and attribute to Madison as if it is found in Article V. You parrot the Schlafly mantra that the original constitutional convention was a runaway convention. Please study a comprehensive rebuttal by Professor Robert Natelson found at Was the Constitutional Convention a “Runaway?”. Natelson’s rebuttal to Schlafly found at The Myth of a Runaway Amendments Convention is further illuminating.
      Robert Natelson, Professor of Law (ret.), from the University of Montana, taught constitutional law and constitutional history, and currently serves as Senior Fellow in Constitutional Jurisprudence at the Independence Institute. He is a widely-published scholar on the Constitution and on the amendment procedure. Several Supreme Court opinions have relied on his work.
      Rebuttal 4 continues the doom and gloom. You know how everything is going to turn out and it is all bad. It proves my point that at its core, with all the rhetorical trappings removed, you argue that the States are populated by stupid and evil men that can’t be trusted. As to the issues, I refer you to two Congressional Research Services papers, “The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress” and “The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress.” These rebut doomsday myths, explain the process, and the difference between ministerial and discretionary duties of congress.
      Those that oppose a Convention of States generally fall in to two groups: (1) Naysayers who are more interested in the dismantling of the Constitution rather than its preservation and (2) Constitutional conservatives who are sincerely skeptical of the Convention of States option, mistakenly fearing that it represents a risk of rewriting or further dismantling of the Constitution.
      Those in the second group with open minds will draw conclusions based upon facts. They will study the matter and upon reflection will often move to become supporters of the Convention of States option. Some that come to mind include Mark Levin, Tom Coburn, Mike Huckabee, Glen Beck, the participants in the Mt. Vernon conference, yours truly and an awakening sleeping giant across the country. Give it some thought and perhaps you too can find your way to the truth.

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    7. "Rebuttal 1 says “Washington is violating the Constitution in practice, they can't dismember it officially without amending it or changing it in some way.” (emphasis added), then claims I, “propose to give them that opportunity.”
      In fact, I propose the opposite, to deny them that opportunity by doing a complete end run around Washington and taking advantage of the Article V Convention of States option."

      No, you DO propose to give them the opportunity to change the constitution. They can presently ignore it, but they can't formally change it without an article V convention. And even if the state legislatures petition for such a convention, CONGRESS is authorized by the article to write the call to convention, and CONGRESS is to determine the method of ratification. Ergo- we cannot hope to hold such a convention with a reasonable chance of success unless the control of the legislature is returned to the citizens.

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    8. "With the new rules for confirmation of judges, how long will it be before our courts are stacked with progressive activists who will orchestrate further dismantling of the Constitution. Apparently you prefer to trust the dismantlers over States you see as largely moronic and untrustworthy. "

      Look you are not correctly describing either my position or your own. You are the one who wants to give the powers that currently be a shot at changing the text of the constitution, yet you claim I am the one who wants to do that. I am the one who wants to keep what we have until we have a better Congress because no matter how you initiate an Article V convention, Congress has significant authority over it ever from what is in the article, and the blanks are going to be filled in by federal judges who will give them even more.

      No I don't trust the states, especially the ones who voted for Obama, to rewrite the constitution. I don't trust our own state legislature either relative to the trust I have for the existing constitution. And I definitely do not trust Congress who will still have a powerful say in an Article 5 convention no matter how it is initiated.

      The judges cannot dismantle the actual words of the constitution. Only an Article V convention can do that. Judges can only ignore or pervert the meaning of what is there, but so long as the words stand they bear constant witness against such tyranny. Thus the states can still appeal to the actual words, so long as they are there, as their moral ally in any dispute with the federal government. The bad guys can't dismantle the constitution without an article V, they can only disrespect it.

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    9. "You inaccurately attribute positions to Madison and accuse Mark Levin of being dishonest. Here are relevant facts. In Federalist 43, Madison specifically argued that states should use the Article V power to correct errors in the Constitution. In Federalist 85, Alexander Hamilton said the Article V amendment process was the means by which the states would rein in an out-of-control federal government. The Convention of States option in Article V is largely the work of George Mason."

      You have not described accurately either my position, or your own, or Madison's, or Mason's. Madison described such a process, but I quote from, and link to, a letter in which he makes it very clear that he dreaded the idea of a convention prompted by the states and much preferred Congress forwarding the amendments. I give the link to the letter right there in my article. I give the quote. If you have a quote from Madison that says differently, then let's hear it.

      As for Hamilton, he was an empire builder and he was trying to sell the states on taking a deal that would have them give up more of their authority than many were comfortable with. His position for a strong and energetic central government is well know. His assurances on this issue amount to little more than the salesman assuring the buyer.

      That leaves Mason. Mason wanted a way to amend the Constitution that completely by-passed Congress. He didn't get it, both ways have congress right in the middle of it. Further, he did not vote to ratify the constitution, so that should give you some idea of how much he thought his ideas were in it.

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    10. "nowhere in the Constitution will you find the words ”general convention” which you place in quotes and attribute to Madison as if it is found in Article V. "

      Madison called it that in his letter which I quoted and linked to in the article.

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    11. As for whether the original convention was a runaway convention, it clearly was, and I linked to two articles explaining exactly why. Don't just drop Natelson's name, because his reasoning could be just as flawed as Michael Farris' was. Go click on the links I have already provided and read the letter from two of the New York delegates who left because they decided the Convention had exceeded its authority. Natelson can spend 50 pages trying to lawyer his way around the plain words of the Continental Congress' call to convention and the testimony of the delegates, but it only takes a few sentences of reading to see that the 1787 convention went beyond their congressional mandate.

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    12. Unfortunately, it appears you are one of the hopeless ones. Good luck to you

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