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Our Principles and Policies radio show for Saturday September 24, 2016. Barry Sheets and Chuck Michaelis deconstruct a presentation by Mark Meckler on the Convention of States Project (COSP) on attempts to call a new Constitutional Convention (disguised as a so-called “amendments convention) by supposedly “conservative” groups like COSP. There is a great deal of smoke generated in this interview but not much light. We supply the light.
By Chuck Michaelis
Vice-chairman Institute for Principled Policy
We often get inquiries asking for a defense or explanation of one argument or another we have made. Sometimes they are important enough questions to warrant a more lengthy written response. We recently received an inquiry with this level of importance-
Mr. Michaelis,
I just watched your 39-minute presentation against an Article V Convention (available HERE).
Therefore, in your opinion, how did the Framers mean for the States to do such a meeting of the States as they created in Article V?
Thanks much!
Whether it is called a “Convention Of States,” a convention of deputies of the several states, an amendments convention or any other name matters little; these things are synonymous…The question is important because of a number of presuppositions contained within it which must be answered to understand why we cannot support a new constitutional convention. Whether it is called a “Convention Of States,” a convention of deputies of the several states, an amendments convention or any other name matters little; these things are synonymous as we have demonstrated in earlier writings.
We need to look at the question in pieces in order to address it properly. The first piece of the question asks about the “Framers.†The capitalization points us to the 55 men who attended the Philadelphia Convention of 1787 (also called the “Constitutional Convention,†a “convention of the delegates of the several states,†an “amendments convention,†a “general convention,†a “national convention,†etc. by the various state and federal resolutions and commentators). More to the point, it refers to the 39 signatories to the resultant new Constitution as well as the 16 who left the convention early and/or refused to sign it or signed and later repudiated it. There seems to be an assumption in the question that these “Framers†were monolithic in their views regarding what type of government they were laboring to create and how the individual parts of it were to operate. Nothing could be further from the truth and it goes to the heart of the question.
There were 2 factions at the Philadelphia Convention. The first faction favored the creation of a centralized national government with the reduction or elimination of the sovereignty of the states as anything but administrative districts with administrators chosen by the new federal government. They assigned themselves the title “Federalists.†The Federalists worked diligently to create articles, sections, and clauses in the new constitution which, if not directly destructive of state sovereignty, then at least capable of being reinterpreted to give a strong central government a superior role. The other faction, which wanted to maintain a federated government with strong state sovereignty were given, in a brilliant propaganda coup, the title “Anti-federalists.†This faction worked diligently to keep the balance of power in the new government with the states, delegating authority to the central government in very specific areas with closely limited powers. Clearly, this was not a monolithic body.
The question, then, is whether or not these deep divisions left a mark on the Constitution itself and specifically on Article V and if so how it affects us todayThe question, then, is whether or not these deep divisions left a mark on the Constitution itself and specifically on Article V and if so how it affects us today. The answer is in the history of the creation of Article V. On May 29, 1787 a plan of government was submitted for consideration by Charles Pinckney a South Carolina delegate (not to be confused with Charles Cotesworth Pinckney, also a South Carolina delegate and the uncle of Charles Pinckney. Charles Cotesworth Pinckney is usually referred to as “Gen. Pinckney†in Madison’s notes. Charles Pinckney is usually referred to as “C. Pinckneyâ€). The actual language of Pinckney’s plan seems in serious doubt1 and some iterations of it appear to bear an uncanny resemblance to the final draft of the Constitution.2 Some think too close. Pinckney’s original plan is not among the papers of any of the note takers at the Convention nor is it contained in the papers accompanying the journal of the convention. Copies of Pinckney’s plan seem to have been submitted to some editors of notes on the Constitutional Convention as late as 1818. Max Farrand has used other records to reconstruct Pinckney’s original proposal and the uncannily similar language to Article V is not in sight.3 Then why mention it? Because Pinckney’s claim is highly illustrative of the point in question. Pinckney claims to have been the virtual author of Article V but the few examples of his speaking on it at the convention seem to indicate that he thought either that a constitutional mechanism for calling a convention was either not necessary or that calling one without agreement of the national legislature was neither proper nor necessary.
A series of resolutions were offered to the convention just prior to Pinckney’s plan by Edmund Randolph of Virginia. The relevant section, resolution 13 read-
13. Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto. (emphasis added)4
…what you can’t see here is that Randolph’s proposal virtually eliminated the state governments… You can see an embryonic reference to providing for a method to call a constitutional convention and the idea that the consent of the national legislature wasn’t necessary. But what you can’t see here is that Randolph’s proposal virtually eliminated the state governments as Robert Yates of New York points out in his notes for May 29
-He candidly confessed that they were not intended for a federal government — he meant a strong consolidated union, in which the idea of states should be nearly annihilated.5
Furthermore Yates, a staunch Anti-Federalist, comments on the Pinckney plan in the same passage
Mr. C. Pinkney, a member from South-Carolina, then added, that he had reduced his ideas of a new government to a system, which he read, and confessed that it was grounded on the same principle as of the above [Randolph’s] resolutions.
Pinckney was a committed Federalist. Randolph is one of the 3 delegates who refused to sign the new Constitution, but he is difficult to label as either Federalist or Anti-Federalist. The historical record shows that the earliest mention of a mechanism for calling a new convention was contained in Randolph’s resolutions. Pinckney’s claim to have offered the main sections of the Article V language is dubious at best. Resolution 13 did not elicit much excitement. It was not discussed until June 6 and then Madison only reports two comments- Charles Pinckney’s and Elbridge Gerry’s. Pinckney’s remarks demonstrate a disdain for permitting the states the power to call a convention-
Mr. PINCKNEY doubted the propriety or necessity of it6
Gerry, an Anti-Federalist and another one of the 3 delegates who refused to sign the new Constitution, supported the measure, according to James Madison
Mr. GERRY favored it. The novelty and difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the government. Nothing had yet happened in the States where this provision existed to prove its impropriety.7
Resolution 13 was discussed by the Committee of the Whole (hereafter CW) on June 11. According to Madison’s notes
(Resolution 13.) for amending the national Constitution hereafter without consent of Natl. Legislature (being) considered, several members did not see the necessity of the (Resolution) at all, nor the propriety of making the consent of the Natl. Legisl. unnecessary. Col. Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendmt. Mr. Randolph (enforced) these arguments. The words, “without requiring the consent of the Natl. Legislature” were postponed. The other provision in the clause passed nem. con. (i.e. without dissent- CM)8
This resolution reported out of the CW on June 13 where it had been altered after the vote of June 11 and assigned a new designation – Resolution 17 which read
17. Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary.9
The resolution was sent to a Committee of Detail (hereafter CD) which took the resolutions passed by the CW and created the language to be further debated by the convention. A report was issued by the CD to the convention on July 26. This is the language that the committee worked out for amending the proposed constitution
This Constitution ought to be amended whenever such amendment shall become necessary; and on the Application of (two thirds) the Legislatures of two thirds of the States of the Union, the Legislature of the United States shall call a Convention for that Purpose.10
The only real authority conveyed here is to the Federal Legislature as the use of the words “application†and “call†make clear. The questions regarding who will be the delegates to such a convention, or more importantly who will choose them are not addressedObviously, the language is ambiguous regarding a number of key questions. It merely states that a convention will be called by Congress (the Legislature) upon the application of 2/3 of the states. The only real authority conveyed here is to the Federal Legislature as the use of the words “application†and “call†make clear. The questions regarding who will be the delegates to such a convention, or more importantly who will choose them are not addressed. This left each side of the convention with the belief that they were pounding out a procedure that would serve their purposes.
And that’s about the extent of the “debate†of the proposal to create a constitutional mechanism to call a new convention. Note that the clause which allowed for invoking a convention without federal consent has been eliminated. Also note that Federalists either did not want to provide a constitutional mechanism for calling a new convention or at least did not want the states to call one without federal consent, or in other words at the will of the federal legislature. Anti-Federalists like Gerry and George Mason, another delegate who refused to sign the new Constitution, strongly supported not only a constitutional mechanism for a new convention but one which could be called without federal legislative approval, that is, at the will of state governments.
And this is the great divide which affected what the Federalist and Anti-Federalist “Framers†each believed that they had created in Article V. And that brings us back around to the original question. Now on to the second part of the question that needs to be answered. The question implies that the Framers designed a mechanism for the “States to do a meeting of the States†and that they created this mechanism in Article V. To answer that question we’ll be looking at the actual final language of Article V to see if the presuppositions stated in the question are valid. The relevant section of Article V states
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;
The word “Application” creates a hierarchy in the process. It places Congress squarely in control of the convention processThe language of Article V seems prescriptive. The use of the word “shall†in the second clause makes it look like there is an imperative to call a convention whenever 2/3 of the state legislatures apply to them for one. But let’s examine the problem in detail. The word “Application†implies that the controlling body is Congress, not the states. The same can be said of the word “call†which means “To convoke; to summon; to direct or order to meet; to assemble by order or public notice;†according to Webster’s 1828 dictionary. So, again, the key words are “Application†and “call.†Furthermore “Application†is capitalized in the text of Article V meaning that the word was being given special emphasis by the convention. The word “Application” creates a hierarchy in the process. It places Congress squarely in control of the convention process. Congress controls the compilation of applications. Congress controls the criteria for compiling the applications. Congress counts the applications and sets the criteria for whether or not the applications have been submitted properly by the states. Congress controls this mechanism and not the states.
Perhaps more importantly, the question arises regarding what a new convention would be, exactly. The implication of the question we are working to answer is that the states would be in charge of a number of key details of the convention including delegate selection, agenda of the meeting, location of the meeting, length of the meeting, etc. If this is the case then why was this not specifically stipulated in the text of Article V? That is the “what†question. The “who,†“where,†“when,†“why,†and “how†questions are not specifically answered in the text of the article. But in a report issued by Thomas H. Neale of the Congressional Research Service, a body employed by Congress to advise it of its powers, rights and responsibilities, the role of Congress in the convention was strongly asserted
…while the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including (1) receiving, judging, and recording procedures state applications; (2) establishing procedures to summon a convention; (3) setting the amount of time allotted to its deliberations; (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; and (6) arranging for the formal transmission of any proposed amendments to the states.11
…did the “Framers†create a “meeting of the States?†If they did then they did not say so in Article V…It cannot be too strongly stated that the real issue then is the ambiguous language of Article V agreed to by both the advocates of State sovereignty and the advocates of Federal hegemony at the convention. The Federalists assumed that the Federal legislature was in control of any amendment convention process. The Anti-Federalists assumed that the state legislatures were in control of any amendment process. And on those assumptions and that ambiguous language pivot the modern notions of who will call and control a convention and, more importantly, who will be the delegates. So did the “Framers†create a “meeting of the States?†If they did then they did not say so in Article V and that leaves the question of how will the meeting be done up to the body which the language of Article V hands power to- Congress.
Conclusion
The Framers were not of one mind about what they were creating in the Constitution in general or in Article V specifically. The Federalists intended to create an amendment process in the control of the Federal government. The Anti-Federalists intended to create an amendment process in the control of State legislatures. Both believed the ambiguity of the language was in their favor due to popular will while appeasing the other side. In the early part of the republic the Anti-Federalists were correct in their assumptions and the state legislatures were the winners. In modern times the idea of State sovereignty is considered a dangerous and anachronistic anomaly of history which a strong Federal government has made obsolete and so Congress is the winner.
Therefore, it can be confidently stated that the answer to the question “How did the Framers mean for the States to do such a meeting of the States as they created in Article V?†absolutely depends on which of the governing philosophies of the 2 factions of “Framers†holds sway today. The answer then is that the Congress will exercise the power to decide how it will be done because Article V gives them the authority to do so.
©2015 The Institute for Principled Policy. All rights reserved. May not be copied or quoted without express written consent of the author.
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Our Principles and Policies radio show for Saturday April 4, 2015. Chuck Michaelis hosts as he discusses a recent presentation that he made to the Shelby County, OH Liberty Group, arguing against a new constitutional convention then dissects an interview conducted by Glenn Beck with Mark Levin on the “convention of states” issue. Finally, Chuck presents a class given by Tom Deweese of the American Policy Center at Camp American in 2010 on the subject of “Precedents and Conventions.”
Links- Video copy of Tom Deweese’s presentation “Precedent’s and Conventions
Tom Deweese coming to Ohio to teach us how to combat Agenda 21-Registration
Chuck Michaelis presents a case against an Article V Convention to an Institute On The Constitution class graduation-
[youtube]http://www.youtube.com/watch?v=kZ9U8_N_yts[/youtube]
There is a great deal of talk, more like shouting really, about Article V of the Constitution and what it does and doesn’t say. Currently, the “pro” side of the argument seems to have a nearly unstoppable momentum. Some proponents, many of them bearing the ill-defined and self-appointed political label of “conservative,” are working tirelessly to assure rightfully suspicious opponents and fence-sitters over to, if not actively opposing, a new convention. That these proponents have been as successful is testimony to the methodology they are using. It is our duty, however, to point out that the methodology they are using is that of the political left.
How so? Primarily, it is how the message is being disseminated. For instance, Article V convention proponents, generally speaking, don’t like debate. So, they actively work in ways to squeeze out opponents in public forums. The American Legislative Exchange Council (ALEC) and the Goldwater Institute in recent years, as part of their well-funded convention campaign, invited state legislators from all over the country to attend meetings in a resort setting where they were treated to open bars, lobster and steak dinners, and golf outings sprinkled liberally with slick, professionally prepared handouts and Power Point presentations touting the wonders of the Article V convention process. These materials were prepared with talking points and “facts” compiled by so-called “conservative” constitutional “experts” and “scholars” who wrote papers purporting to prove that the Article V process was completely “safe” and totally in the control of the forces of constitutional conservatism. Furthermore, it was touted as the last, best hope to restore the republic to its roots in “liberty.” In the interim other groups like Convention of States have tapped into a mysterious fountain of money available to groups with large mailing lists of constitutionally uneducated families who can be easily swayed, out of loyalty to the leaders of these groups, to come over to the convention proponent side using the materials generated by ALEC and the Goldwater Institute.
Why would this be a problem? The problem is not with these groups using their wealth and influence to bring people to their viewpoint. That is how the game is played. The problem is with maneuvering opponents into a position of having no access to media, meetings, legislators, and other influential people and venues to counter their message. That’s not how the game is played if genuine debate is being courted. and that’s exactly the point. In Ohio legislators have given convention proponents nearly open access to committees and members of the Senate and the General Assembly. At the same time opponents have been relegated to discovering that convention-call resolutions have been fast-tracked, set for single hearings in committee followed by an immediate floor vote with only sponsor and proponent testimony (no opponents allowed!) are mere hours away and having to mount grassroots campaigns to get a fair hearing in a rigged environment AND prepare testimony. We have also found ourselves on the outside looking in when TEA Party groups hold state-wide meetings in which convention proponents are in control of the agenda and opponents are simply not permitted any access.
So, why are they running their campaigns this way? The answer is actually fairly simple. They know that we are well aware that their “scholars” and “experts” are hiding behind their degrees and reputations to offer less than honest presentations of what history, the Constitution, historical documents, court cases, etc. actually say about how a constitutional convention actually works and what it can and cannot do. They know that if we get equal access in these venues that we will ask questions, using the same materials they are presenting, that they cannot honestly answer in a way that supports their case, and they know we will call them on their dishonesty. They know what this will do to their case and will mean that the tens of millions of dollars (where is the money coming from?) spent on the campaign to get a new convention will have been wasted. And they also know we can do all this with short, simple and easy to understand presentations.
The video presented below is an illustration of what we mean.
Watch as we ask the following questions that the proponents of a new convention claim they have answered-
1) How many conventions of the type being asked for have there been in Anglo-American history?
2) What is the difference between an Article V “amendments convention,” a “convention of states,” and a “general” or “national convention?”
3) Is there any other kind of convention?
4) What exactly is an Article V convention and how much power does it have?
5) Why does a convention exist at all?
6) What has been the result of EVERY general convention called in Anglo-American history?
7) Who controls a convention?
8) Has any governing body ever controlled a convention? Has any body tried to control a convention?
9) Who is in charge of calling a national convention?
10) Why is the notion that it is the states who will control the delegates and agenda fatally flawed?
11) Why didn’t all 13 states send delegates to the Philadelphia convention?
12) What modern view of the relationship between the states and the Federal government insures that Congress controls all aspects of a convention?
13) What does Article XIII of the Articles of Convention mean for the supposedly iron-clad protection of the ratification procedure?
14) What did James Madison think would be the result of another convention?
15) What are the problems with what conventions are being called for and what are the problems with those proposed amendments?
[youtube]https://www.youtube.com/watch?v=kZ9U8_N_yts[/youtube]
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Our Principles and Policies radio show for Saturday December 7, 2013. Barry Sheets and Chuck Michaelis give the present of critical thinking by analyzing a recent correspondence that we were a part of. We demonstrate how to interpret and respond to questions raised in discussions.
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Our Principles and Policies radio show for Saturday November 23, 2013. Barry Sheets and Chuck Michaelis give a report on their recent testimony on Senate Joint Resolution (SJR) 5 which is an application to Congress to call a new constitutional convention purportedly to pass a balanced budget amendment. We detail Barry’s testimony regarding the true size of the federal debt and the true facts regarding what a balanced budget amendment would do to reduce that debt- nothing. We explain the faulty logic behind the balanced budget amendment. We also analyze the overall worldwide economic picture in order to bolster our points on this issue. To add insult to injury we discuss Rep. Paul Ryan’s pledge to do nothing to control spending by promising that no government shutdown will occur in January. And, yes, we tie it all together.
Article links- What’s a negative deposit rate, anyway?
European banks contemplate going to a negative deposit rate
Paul Ryan says there will not be a January shutdown
Dr. Laurence Kotlikoff shows what the true debt burden of the federal government is
Barry Sheets, Director of the Institute For Principled Policy , presented testimony before the Ohio House Policy and Government Oversight Committee on Tuesday November 19, 2013. The hearing was on Senate Joint Resolution (SJR) 5, a resolution applying to Congress for a new constitutional convention purportedly for a balanced budget amendment to the United States Constitution. Mr. Sheets spoke in opposition to the resolution. Opponents were given no opportunity to testify on this resolution in its assigned Ohio Senate committee.
_____________________________________________________________________________________
Chairman Dovilla and members of the committee, I come before you today to discuss SJR 5, a resolution memorializing Congress to call a Convention to propose amendments to the Constitution of the United States.
I have been before this committee recently on the House companion version of this resolution, and the comments I shared then continue to be one of the bases of the Institute for Principled Policy’s continued opposition to this resolution’s stated purpose. I wish to add further information to this discussion at this point.
There are only two means of amending the United States Constitution: one means does not involve a convention, the other means does. Congress may directly propose amendments without calling a convention; the states’ only means of proposing amendments for ratification is by the calling of a convention by Congress on the application of 34 states. This encompasses the entirety of Article V’s permissible means to amend.
The resolution before you does call for a Constitutional convention, regardless of what has been said by proponents. A convention which will not be limited in any way other than by the will of those who are empowered as delegates. Let the history of the 1787 Convention be a lesson to us all in this respect.
In a letter published in the January 14th, 1788 edition of the New York Daily Advertiser addressed to Governor Clinton of New York, appointed delegates Robert Yates and John Lansing detailed their reason for leaving the convention early. They noted that their instructions from the legislature of New York were to amend the Articles of Confederation, but what they were faced with at the convention was the adoption of an entirely new Constitution with greater centralized national power.
They stated “It is with the sincerest concern we observe that in the prosecution of the important objects of our mission, we have been reduced to the disagreeable alternative of either exceeding the powers delegated to us, and giving our assent to measures which we conceived destructive of the political happiness of the citizens of the United States; or opposing our opinion to that of a body of respectable men…â€
But Lansing and Yates were not alone. Elbridge Gerry also had grave reservations regarding the impact of Article V. In his book, “The Compromising of the Constitution†Rexford Tugwell, a high ranking Cabinet official in the Roosevelt administration, fellow of the Center for the Study of Democratic Institutions and a major proponent of a new constitutional model called the “Constitution of the New Statesâ€, stated this: “There was a further entry in Madison’s notes on September 10, when the Convention was nearing its end. On that day Gerry moved to reconsider the article providing that legislatures in two-thirds of the states might require Congress to call an amending convention. He asked whether this was a proper arrangement since a majority in a convention called by the Congress could bind the states to “innovations that might subvert the state constitutions altogether.â€
Those concerns mirror those of the Institute, who firmly hold that a national convention is a body with full power to set its own course and decide on its own how extensively to change our current Constitutional system, and whether or not to continue the existing ratification process or to choose new methods to achieve their goals. SJR 5 cannot, and will not, be able to bind delegates, unless they show the character of Yates and Lansing, seeing that they must choose principle over political or peer allegiance. We respectfully submit to you that a safer course of action is to not pass this resolution, and work with our Congressional delegation and United States Senators to curb spending and bring it in line with sound Constitutional parameters.
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In an addendum Mr. Sheets testified to the enormity of the current indebtedness of the United States and the virtual impossibility of reducing or eliminating that debt by simply adopting a balanced budget amendment. He provided the committee with an article from Forbes magazine by way of support for his additional testimony. We provide links to that Forbes article as well as an analysis of the numbers from another article.
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Chuck Michaelis, Institute For Principled Policy Vice-chairman, presented testimony before the Ohio House Policy and Government Oversight Committee on Tuesday November 19, 2013. The hearing was on Senate Joint Resolution (SJR) 5, a resolution applying to Congress for a new constitutional convention purportedly for a balanced budget amendment to the United States Constitution. Mr. Michaelis spoke in opposition to the resolution.
Opponents were given no opportunity to testify on this resolution in its assigned Ohio Senate committee.
_______________________________________________________________________________
Thank you, Chairman Dovilla and to the House Policy and Government Oversight Committee members for the opportunity to testify today on Senate Joint Resolution (SJR) 5.
Chairman Dovilla, my name is Chuck Michaelis and I am Vice-chairman of the Institute For Principled Policy. We are an Ohio-based public policy think tank.
I come before you today to speak in opposition to SJR 5. The goals of SJR 5 are noble if, probably futile. As we have or will hear today the problem with the deficit is far worse than even the sponsors of this Balanced Budget Amendment seem to realize.
Based on the scope of that problem I question the wisdom of calling a convention as a means to pass a constitutional amendment which will have no effect on deficit spending. Why do I say this? In 1992 an amendment which was part of the original 12 amendments to the Constitution was finally ratified by the requisite ¾ of the states to become the 27th Amendment to the Constitution. That amendment prohibits a pay raise for Senators and Representatives until such time as there has been an election for their seat. In other words, they can’t vote themselves a pay raise whenever they want one. So are federal representatives prevented from getting pay raises during their terms as the amendment requires? No. Thanks to the efforts of our public servants, many of them purporting to be fiscal conservatives, the prohibitions of the amendment have been bypassed by a “compensation commission†created by Congress for that purpose. The amendment has been rendered impotent.
And that is what I believe will happen with the Balanced Budget Amendment, meaning that all the toil, strife, and disharmony necessary to call a constitutional convention, even on the extremely remote chance that the proponents manage to get one called and are somehow able to control it, will turn out to be a colossal waste of time and effort. The so-called “emergency clause†of the amendment (a freight train-sized loophole) will be invoked and the pork barrels will roll unobstructed through Congress just as quickly as the 27th amendment was bypassed.
But my real focus is on the major procedural issues associated with a convention call. This body has been told not to worry. It has been told that those who believe that there is any danger in the states not being in control of a convention or that there even is any such thing as a “constitutional convention†in the Constitution are “delusional.†This comes from a line of argumentation that makes the wild claim that “everyone knew†that the Philadelphia convention was being called to re-write the Articles of Confederation.
When I testified on HJR 7 I handed you all a booklet which contained the unedited text of the state resolutions and commentary. The booklet demonstrated that not only did everyone not know about the plan to re-write the Articles but that some were expressly forbidden to do what was done at Philadelphia. The states had called a limited convention and attempted to control it with strongly worded resolutions regarding what could and could not be done. The different state delegations also had strongly divergent views regarding what the “defects of the union†were. And yet, this “controlled and limited†body of delegates threw out the Articles of Confederation they were empowered only to amend and wrote the Constitution, a fundamental change in the governmental structure of the nation. This means that those who propose that a convention can be “called, limited, and controlled†by the states through “strongly worded†resolutions have no constitutional historical precedent to back their claims.
And because of this fact we can state unequivocally that those who argue for a “controlled and limited†convention, no matter if it’s called a “convention of states†or an “amendments convention†or even “Uncle Sam’s Tattoo Contest And Constitution Hoedown†is, in fact a plenipotentiary constitutional convention if it is called by 2/3 of the states in application to Congress to alter the Constitution.
There is a second line of argumentation which is far less certain in its outlook on the controllability of a federally called convention. This line argues that a controlled and limited convention could probably be called (maybe) but that the controlling body would be the federal courts. This is based on the claim that federal jurisprudence has grown since 1789 and must certainly have a final arbiter’s role in determining the agenda and limits of any convention. This position can also cite exactly no precedents in constitutional history to back their claims. It also does not invoke warm and fuzzy thoughts and feelings regarding the safety of the procedure.
As my colleague at the Institute for Principled Policy Barry Sheets testified on HJR 7, there is a third line of argumentation involving a government body who has weighed in and claims control over the agenda and delegates to any convention- Congress through their Congressional Research Service. This claim is based on the flaw in Article V which allows states to call conventions through Congress but is silent on who appoints delegates, how they’re appointed, by what criteria they are appointed, how the convention will be assembled or structured, etc. There’s no reason for this state body to believe they’ll be in charge of the appointment of delegates under this scenario. This position can also cite exactly no precedents in constitutional history to back their claims. What they can cite is a deeply flawed Article V which should but does not structure that authority.
There is yet another line of argumentation. This is our position. We believe we can prove, based on precedents in constitutional history, that a convention, properly called, is plenipotentiary and fully capable of abolishing, amending, or completely restructuring the form of government. We base this on the 4 conventions in Anglo-American history, all of which were plenipotentiary and all of which fundamentally altered the structure and function of the national government. It is simply undeniable that a convention is always the highest law-making body in any political entity.
A court applies law that is made by a legislature. This makes the idea that a court controlling the delegates, the agenda, or the limits of a convention something of an absurdity. Courts interpret and apply written law. Legislatures make the law that courts apply. Control of a convention by a legislature is also not possible. Legislatures write law within the limits on power and authority as created by a constitution, either written or unwritten. All political organizations and, in fact, all organizations in general have a constitution whether or not it is written. It is the rule set under which they operate. And the only body which can create those rules in a political entity is a convention.
Under the model we propose to show is the correct one delegates are controlled only by their own consciences, the rules of the convention, and their perceived fiduciary responsibility. And that’s a problem because this state body assumes that the delegates will feel a fiduciary responsibility to them. The real fiduciary responsibility of delegates is to the body-politic, or every member of society within the political boundaries of the entity appointing them.
Obviously, this makes the ability to select delegates of paramount importance to the direction of the convention. The legislators have been told that it is a near absolute certainty that they will be in charge of delegate selection. Based on what? The precedent of the Philadelphia convention? There is a major flaw in this thinking. In 1787 the states were mostly autonomous. The Articles of Confederation had no official convention procedure written into it. The ONLY bodies which could appoint delegations were the state governments. In 2013 the picture is much different. The Constitution has a convention procedure. State sovereignty has all but eroded to nothing and the convention procedure’s silence combined with this erosion of sovereignty means that the Federal government sees itself as the primary controlling entity on any Article V convention. They understand that allowing states to select delegates might just mean losing a significant amount of the power that they have concentrated in Washington since 1789. And that means they will do whatever is necessary to prevent that.
If the Congress or the federal courts are allowed to set criteria or qualifications for delegates or reserves slots for special interest groups, you can probably kiss the idea of a Balanced Budget Amendment with anything like teeth goodbye.
As you can see there are many questions that must to be answered and many important concerns to be worked through before a Constitutional Convention can safely be petitioned for. I’m not sure that I’m convinced that a proper amount of contemplation of these questions and their broader consequences has been considered when I observe the speed which is being employed to push this measure through the legislative process.
Chairman Dovilla, I want to thank you and the members of the committee for your patience and indulgence in hearing my testimony. I would be more than happy to answer any questions you might have of me.
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Our Principles and Policies radio show for Saturday November 16, 2013. Barry Sheets and Chuck Michaelis analyze an article written by Timothy Baldwin called Constitutional Hypocrisy at a website called News With Views. Baldwin attempts to build 
a case that since some opponents of an Article V convention are proponents of state interposition against federal tyranny (sometimes called nullification as a pejorative) and since nullification isn’t specifically listed in the Constitution and therefore does not exist, then it follows that these people are mistaken in believing that there are things implied in Article V that exist even though they are not written. Not only that, but anyone who opposes a new convention is delusional and in league with the federal usurpers. We argue that Baldwin, son of former Constitution Party Vice-presidential and Presidential candidate Chuck Baldwin, ignores history, especially historical primary source documentation, in favor of modern constitutional “scholars,” primarily Dr. Robert Natelson, an open partisan in favor of a new convention who purports “neutral scholarship.”
We also review an article in the National Journal which calls for “blowing up the Constitution in place” which shows how the radical left views a new constitutional convention as a golden opportunity to radically alter or re-write it.
Article links-Â http://newswithviews.com/Timothy/baldwin199.htm