This article is a response to “Citizens Employing Little-Known Safety Valve to Rein in Federal Over-Reaches.” AlphaNews was kind enough to initially publish our response, “Counterpoint: Convention Of The State Is A Bad Idea.” We chose to republish our article here to ensure the endnote references were available.
Our Founding Fathers actually said to not rewrite Constitution to enforce it. [1] Convention of States (COS) Founder Mark Meckler’s Freudian slip July 6, 2017 on the Red Eye Radio Show revealed the truth. He was asked if an Article V convention, or anything, could keep these constitutional violations from happening again and again. Meckler said, “You know, I think that’s one of the best questions there is. And I’m going to give you the short and blunt answer which is NO!” [2]
COS attorney Robert Kelly taught about COS February 5th, 2018, in Boise, Idaho. An attendee asked, “What happens when you change the Constitution and they do not follow it?” Kelly answered that millions of activists will need to pressure legislators and litigation will be required to enforce the changes. The same man asked, “Why not skip amending the Constitution and enforce it now?” Kelly got agitated and had no answer. [3]
Yes, the federal debt has ballooned to $22 Trillion. Yes, the feds regularly reach outside their cage, usurping constitutional limits and encroaching on state powers, but they are aided and abetted by state legislators negligent in the performance of their oaths of office. State legislators take an oath under Article VI of the Constitution to support the Constitution and that includes resisting unconstitutional federal acts. [4]
Yes Mr. Davidson, The Founding Fathers “foresaw the risk of a federal government taking excessive power unto itself at the expense of the states,” however, amending the Constitution to stop that violation was never discussed. Col. Mason did highlight the need for states to be able to petition for amendments to correct defects in the Constitution. The Article V convention option was not designed to, nor is there any way it can, compel obedience. [5]
It is quite deceptive to claim Article V was unanimously ratified, without debate as COS does. This neglects the fact that seven motions that were voted on immediately after the section’s initial adoption on September 15, 1787. Col. Mason made one of those motions and seconded another. One of the motions seconded and voted on was to delete the Article V section entirely. Article V’s convention option was not passed unanimously and not without debate. [6]
An Article V convention may not be topic limited. [7] Three top-tier Article V convention-advocating attorneys are on record as saying there will be significant litigation if the 34 state requirement is reached, and a convention is called by Congress. [8] Advocates are pushing to resolve constitutional usurpation we all agree is aided and abetted by the Judiciary, yet their own experts tell them the Judiciary will be intimately involved in the process as a result of significant litigation once a convention is called. This effectively means they are advocating inmates to guard the prison. The Judiciary should recuse themselves of several important questions due to the Political Question Doctrine they have already ruled applies to Article V. [9] Massive litigation with courts refusing to hear the lawsuits? How could that possibly help?
COS advocates say that historical precedent will ensure that the convention stays within its limits. This is balderdash as the Constitution itself is the Supreme Law of the Land and is being regularly distorted, so why would a convention derived from it follow the rules? It is insane to think that a convention called in our modern toxic political climate, with ignorant people, and powerfully-influential PAC money, would stay within its limits.
Our 1787 Constitutional Convention in Philadelphia also had safeguards in place. Nine states and Congress itself specifically put language into the delegate commissions that amendments from the Convention had to be ratified by Congress and all 13 states. We know that Article VII of the Constitution required only nine states for ratification. The Founders appealed to The People for ratification to get around this, just as another convention could. August 31, 1787, in convention, James Madison said, “The people were in fact the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased.”
When the Supreme Law of the Land is being distorted, it is fundamentally invalid for COS to claim any convention will stay within boundaries. Congress will define the convention. [10] Dr. Natelson, a legal advisor for COS claims publicly, when promoting the convention, that it is one state, one vote. However, he also admits this can be changed by the convention. [11]
Convention advocates are promoting what they are being told without checking facts. Debate on the Federal Convention Act of 1973 [12] showed Congress will work to assert an Electoral College delegate allocation model and with few delegates, small state’s input to a convention will be ignored. The intense debate on the National Popular Vote issue currently flowing in America shows that all states being equal is not understood, taught, or embraced in America.
Mr. Davidson’s advice, “If we are to continue to be a government of, by and for the people, the people must play their role,” is quite correct, but grossly misapplied. The Founders let us know that We The People must be involved in our government. The Constitution is just a piece of paper that cannot enforce itself. They told us what to do:
“I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.” –Thomas Jefferson to William C. Jarvis, Sep 28, 1820
“it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the general government. The only barrier in their power is a wise government….” — Thomas Jefferson To Archibald Stuart written December 23, 1791
We don’t follow the Constitution, so the Constitution isn’t the problem. Our not following the Constitution is the problem. So, changing the Constitution is not the solution.
End Notes:
[1] Thomas Jefferson was clear: “Then it is important to strengthen the state governments: and as this CANNOT BE DONE BY ANY CHANGE IN THE FEDERAL CONSTITUTION, (for the preservation of that is all we need contend for,) it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the general government. The only barrier in their power is a wise government….” (Emphasis added) — Thomas Jefferson To Archibald Stuart, December 23, 1791 [2] https://newswithviews.com/meckler-admits-convention-of-states-wont-solve-the-problem/ Note: I have an MP3 file of his interview. The show took it off the Internet. [3] I was in the room in the Idaho Legislature building and witnessed the presentation and question and answer period myself. – Shawn Meehan, Founder, Guard The Constitution [4] “The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.” — U.S. Constitution – Article VI, Clause 3, Source: http://avalon.law.yale.edu/18th_century/art6.asp“In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own.” Massachusetts v. Mellon, 262 U. S. 447, 482 (1923) . The States are separate and independent sovereigns. Sometimes they have to act like it.” — John Roberts, writing for the majority in the first Obamacare opinion, NFIB v Sebelius, 567 U.S. 519 (2012)
“If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated” — Federalist 16
[5] “any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers” — Federalist 85, 13th paragraph [6] Tuesday September 15, 1787, in Convention, http://avalon.law.yale.edu/18th_century/debates_915.asp [7] Numerous references support the argument an Article V convention very likely may not be topic limited.“Because no amending convention has ever occurred, an important question is whether a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amending conventions in the nineteenth century were general, the modern trend is to call for limited conventions. Some scholars maintain that such attempts violate Article V and are therefore void.” — Spalding, Matthew; Edwin Meese; David F. Forte (2005-11-07). The Heritage Guide to the Constitution (p. 266). Regnery Publishing, Inc.
“Writing at the height of debate over the 1980s campaign for an Article V Convention to consider a balanced budget amendment, former Solicitor General Walter Dellinger asserted that the Framers deliberately sought to provide a means of amending the Constitution that is insulated from excessive influence by either the state legislatures, or by Congress.” — Walter E. Dellinger, “The Recurring Question of the ‘Limited’ Constitutional Convention,” Yale Law Journal, volume 88, issue 8, July 1979, pp. 1623-1640.
“…any new constitutional convention must have the authority to study, debate, and submit to the states for ratification whatever amendments it considers appropriate (emphasis added). According to his judgment, an Article V Convention must be free to pursue any issue it pleases, notwithstanding the limitations included in either state applications or the congressional summons by which it was called….” — Walter E. Dellinger, “The Recurring Question of the ‘Limited’ Constitutional Convention,” Yale Law Journal, volume 88, issue 8, July 1979, p. 1624.
“If the legislatures of thirty-four states request Congress to call a general constitutional convention, Congress has a constitutional duty to summon such a convention. If those thirty-four states recommend in their applications that the convention consider only a particular subject, Congress still must call a convention and leave to the convention the ultimate determination of the agenda and the nature of the amendments it may choose to propose.” — Walter E. Dellinger, “The Recurring Question of the ‘Limited’ Constitutional Convention,” Yale Law Journal, volume 88, issue 8, July 1979, p. 1624.
“Convention” had a familiar … public meaning in 1787. It referred to a deliberative political body representing the people, as it were, “out of doors.” Representatives or delegates to such a convention might well operate to some extent pursuant to “instructions” of the people thus represented, but a convention was not a pass-through or a cipher, but rather an agency ― a deliberative political body.” — Michael Stokes Paulsen, “How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention,” Harvard Journal of Law and Public Policy, volume 34, issue 3, 2011, p. 842.
“Perhaps the most assertive expression of the open or general convention argument centers on the doctrine of “conventional sovereignty:” According to this theory, a convention is, in effect, a premier assembly of the people, a representative body charged by the people with the duty of framing the basic law of the land, for which purpose there devolves upon it all the power which the people themselves possess. In short, that for the particular business of amending and revising our Constitution, the convention is possessed of sovereign powers and therefore is supreme to all other ”Government branches or agencies.” — Brickfield, Problems Relating to a Federal Constitutional Convention, 16.
“Constitutional scholar Charles Black offered emphatic support of this viewpoint: “I believe that, in Article V, the words ‘a Convention for proposing such amendments’ mean ‘a convention for proposing such amendments as that convention decides to propose.” — Charles Black, “Amending the Constitution: A Letter to a Congressman,” Yale Law Journal, volume 82, number 2, December 1972, p. 199.
“In fact, he went on to assert that limited conventions would be constitutionally impermissible for the reason that no language is found in Article V that authorizes them: It (Article V) implies that Congress cannot be obligated, no matter how many States ask for it, to summon a convention for the limited purposed of dealing with electoral apportionment alone, and that such a convention would have no constitutional standing at all.” — Black, “Amending the Constitution: A Letter to a Congressman,” p. 199.
“When delegates are presented with a choice of writing a new constitution or submitting a number of amendments to the existing document, they have exhibited a desire to become part of history by framing a new constitution.” — Russell Caplan in Constitutional Brinkmanship
“Congress’s inability to limit the scope of a convention suggests that a limited convention, even if requested by the States is not permissible.” — James Kenneth Rogers, Harvard Journal of Law & Public Policy [Vol. 30]
“What about a runaway convention? Yes, it is true that once you assemble a convention that states have called, they can do anything they want.” — Virginia Attorney General Ken Cuccinelli, on the steps of the Capitol in Richmond on Jan. 17, 2011
[8] Attorneys Michael Farris, CEO and General Counsel for Alliance Defending Freedom, and co-Founder of Convention of States, Dr. Robert Natelson, head of the Independence Institute’s Constitutional Studies Center and its Article V Information Center and a legal advisor to COS on Article V, and Nick Dranias, Policy Advisor and Research Fellow with the Heartland Institute on Article V, are all on the record as agreeing that an Article V convention called will instigate significant litigation. [9] “As a rule, the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require, and Article V is no exception to the rule.” — Dillon v. Gloss 256 U.S. 368 (1921) [10] “And the few cases that have been asked to deal with issues comparable to the one now tendered to this Court have uniformly held questions as to compliance with Article V’s requirements are within the sole province of Congress and not the courts — in the language that has come to characterize such issues, they are political” (that is, nonjusticiable) questions.” — United States of America, Plaintiff, v. Wayne Wojtas, Defendant, No. 85 CR 48, United States District Court for the Northern District of Illinois, Eastern Division, 611 F. Supp. 118; 1985 U.S. District. Lexis 19914, May 10, 1985“As a rule, the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require, and Article V is no exception to the rule.” — Dillon v. Gloss 256 U.S. 368 (1921)
[11] “Interstate conventions traditionally have determined issues according to a “one state/one vote,” although a convention is free to change the rule of suffrage.” Dr. Natelson writing in the ALEC Handbook, “Proposing Constitutional Amendments by a Convention of the States,” a Handbook for State Lawmakers, 2013 version, Section E, page 15. [12] The U.S. Senate passed Federal Convention Act of 1973 on July 9, 1973. Two key sections from that act are: “SEC. 7. (a) A convention called under this Act shall be composed of as many delegates from each State as it is entitled to Senators and Representatives in Congress.” “SEC. 7. (c) Delegates shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at a session of the convention, and in going to and returning from the same and for any speech or debate in the convention they shall not be questioned in any other place.” Source: The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress by Thomas H. Neale, April 11, 2014, Congressional Research Service, 7-5700, R42589, Pg. 36, “Providing a Framework: The Precedent of Congressional Proposals to Shape an Article V Convention”