Wednesday, September 4, 2013

I Smell Another Rat

"I small a rat"- Founder Patrick Henry on why he did not attend the Constitutional Convention in 1787

The hero further complained, "The Federal Convention ought to have amended the old system, for this purpose they were solely delegated: the object of their mission extended to no other consideration."

By "the old system" Henry meant the "Articles of Confederation", which served as the original constitution of the thirteen colonies. Did the original Convention which produced our present constitution exceed their original authority? You don't have to be a constitutional lawyer to be able to decide for yourself, you only have to be able to understand one sentence of English. The applicable act of the Confederation Congress reads thus: A Convention of delegates should meet “for the sole purpose of revising the articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”

Notice that the above call to convention uses the Articles of Confederation and "federal Constitution" interchangeably. It does not say they are to render "a" federal Constitution that is adequate, but rather render "the" federal Constitution adequate. That is, the Articles of Confederation. The original constitutional convention began as an "amendments Convention" which wound up writing an entirely new document when they were only originally authorized by the Congress to amend the Articles of Confederation. In other words, it was supposed to be similar to what writer Mark Levin is calling a "Convention for the purpose of proposing amendments" or "Amendments Convention". People who are worried that such a convention could "run away" have a historical precedent for such a fear- the convention which produced our own constitution.

Micheal Farris and others have attempted to argue that the phrase "render the federal Constitution adequate to the exigencies of government and the preservation of the Union" to mean they had permission to not only propose a package of amendments to the then-existing constitution, but to propose a new one to replace it as well. I guess you have to be a constitutional lawyer to train your mind to the point where you cannot understand the plain meaning of that phrase. It did not say "render a federal Constitution" but rather "render the federal Constitution". That is, the articles of Confederation, which was the existing federal Constitution of that time.

That is also the only interpretation of that phrase which makes any sense at all when compared to the first part of the sentence it appears in, which said the convention was " for the sole purpose of revising the articles of Confederation". Just in case there is any doubt, it further specified that the convention was to provide "such alterations and provisions therein." Therein where? In the Articles of Confederation. Read the key excerpt two paragraphs above again if you have any doubt. In my mind there is none, Farris has it wrong.

So I agree with Patrick Henry. It was a run-away convention. The convention was very controversial at the time, five of the original thirteen states conventions ratified it with 55% of the vote or less even with tremendous pressure on them to do so. That does not make the Constitution illegal, it just means that they exceeded the scope of their call, as might happen again should we have a very similar "Amendments Convention" under Article V (though the convention which produced our constitution was not an article V convention per se because obviously article V had not been drafted yet). So the anti-federalists were right on that point. And that was not the only thing that the anti-federalists were right about. History has shown them to be correct in almost all of their warnings. The promises of the federalists that we would be a nation with a central government whose powers were "few and defined" relative to the states have not been kept.

Now some of the same people who got blind-sided when the Republicans in our state (Arkansas) legislature helped the Democrats implement Obamacare in this state just sound so confident that an "Amendment Convention" can't get out of control because it will be run by, drum roll please........the same legislature which just knifed them. Why, the state legislature is controlled by Republicans and Democrats, and when have either of those two groups ever led the country astray? Of course we can trust them to not screw up an "Amendments Convention." If any of you do not understand I am speaking with great sarcasm here, please stop voting.

My point is that there is plenty we can do to fix our real problems, like a broken candidate selection system, that can be done without amending the constitution. And furthermore, until those things are done we will not have a legislature accountable to us enough to trust with such a convention anyway. Understand that I am not against the idea of an Amendments Convention in principle, but not until we fix our candidate selection system so that the people running it will be people actually representing us instead of the political apparatus which is ruining America. Here is my prior piece on why these are the wrong amendments, and some things we need to do first.

Even if we could trust our state legislatures to advance Levin's amendments and no others, they won't work as advertised, because giving shysters, sociopaths, and assorted other low-lifes better instructions does not cause them to behave better. The real problem we have to address is how to get better people in office, not how can we make a law so perfect that even scoundrels will be made to behave. Scoundrels don't care what's written down on paper. When the problem is that they ignore the limits placed on them in the current constitution, placing more limits on them in that constitution cannot be the solution.

But let's say we live in an alternate universe where we could, and where we had faithful state legislatures. Even in this fantasy universe, we still won't get such amendments through because the federalists stole a march on the anti-federalists when drafting Article V. It is Congress which gets to issue the call to convention, it is they who decide whether it is 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. 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.

I share your frustration with where this nation is heading and I don't argue that such a convention should never be used, but rather I argue that we have much work to do first.   We ought to do that work instead of expending more energy and effort trying to take a short cut which will only get us further lost. I implore my countrymen to by guided by reason, virtue, and honor as we begin the hard but worthy work ahead.

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