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Questions That Demand An Answer- I

This entry is part 3 of 6 in the series Crises, Coups and Constitutional Conventions

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There is currently a movement in the United States that is gaining a disturbing momentum. The leaders of the movement are agitating state governments to petition Congress to call a new constitutional convention. While groups on the left have been demanding a new convention for the purpose of re-writing the existing Constitution for decades  the current calls are coming from groups that most would place in the “conservative” category. The liberal groups are calling straightforwardly for a convention with plenipotentiary constitution making authority while the conservative elements are calling for a convention limited by charter for the purpose of amending the existing Constitution.  While the latter sounds reasonable it is the opinion of the Institute For Principled Policy, not on our own authority but based on extensive research on the legal, historical, and procedural precedents set by conventions of the United States, colonial America, and Great Britain, that the chartering of a so-called controlled or “shackled” constitutional convention will have the same result as the calling of a convention with plenipotentiary authority. That predicted result in either case is a new constitution. Based on further research into existing constitutional models, parts which are already being implemented, we believe that the government created by any new constitution will be divorced from both the bedrock philosophical moorings laid out in the Declaration of Independence and from the shackles imposed by the current constitution. In this light the Hegelian Dialectical nature of the debate over a new constitutional convention is exposed.

In this series we will present the case and documentation that are the foundation our positions.

_______________________________________________________

“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master that’s all.”
Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them—particularly verbs, they’re the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot! Impenetrability! That’s what I say!” –Humpty Dumpty in Alice Through The Looking Glass

Why all the questions?

In the previous section we posited that there are important questions that must be answered and the answers confirmed. All of the questions pivot around the necessity of a new convention, the historical and procedural precedents set during previous conventions, and parliamentary rules and procedures.  You will find that some of the questions asked here have purportedly been answered by one or another of the pro-convention advocacy groups and think tanks. Our contention is that the answers to the questions do not hold up to close examination and must be rejected. And this is where much of the problem discussed earlier lies. The answers given have been taken at face value because the people asking the question have trusted the organizations supplying the answers. And in some cases that trust has been misplaced, with the result being the magnification and propagation of spurious information about the controllability of certain types of conventions.

In researching the answers to these questions we have encountered much scholarship both American and European and spanning the period from the 17th century to the present. Some of the scholarship we examined, especially from the 20th century, contains subtle arguments based on claims of special knowledge of the meaning of key words and phrases from 18th century documents. Much of the argumentation that grows out of the historical evidence is therefore subject to interpretation. And because the interpretation can be based on specialized knowledge, it is also subject to equivocation regarding the meanings of words and phrases to support the case that the writer is working to build.

Words have meaning- and why that matters.

For an illustration of this principle the reader is invited to read and compare Joseph Story’s Commentaries On The Constitution of The United States with Abel P. Upshur’s A Brief Enquiry Into The True Nature And Character Of Our Federal Government, John Taylor of Caroline’s New Views of the Constitution of the United States, and St. George Tucker’s View of the Constitution of the United States. In these 4 volumes, all based on the same basic set of documents and historical facts, the authors draw very different conclusions regarding the original intent of the framers of the Constitution on the subject of the nature of the government created by it. Story (and to a lesser extent commentators like William Rawle in his View of the Constitution of the United States) take a position that the Constitution created a sovereign national government, in effect arguing that not only did the states not retain sovereignty but that they never actually had it, sovereignty having passed from the British Crown directly onto a single united entity in the body of “the people,” the states being mere organizational and administrative entities. Upshur, Taylor, and Tucker all argue that under the polity created by the Constitution the states retain full sovereignty except that which they have voluntarily ceded to a federal government limited by charter for the purpose of presenting a united defense, diplomacy and trade posture to a hostile world. Upshur and Taylor’s works were actually written as direct refutations of the basic premises contained in Story’s Commentaries. In the first position the union created the states; in the second the separate states united to create the union.

These very different arguments grew out of the views of the two major parties at the Constitutional Convention regarding the nature of the new Constitution. The federal position (ironically championed by men labeled “Anti-federalist” by the more propaganda savvy opposition who fought for a national government but labeled themselves “Federalist,” a label which stuck) is the position that eventually prevailed at the Constitutional Convention. Nationalists, deeply disappointed at their failure to eliminate the state governments began to work on strategies for shifting sovereignty from the states. The method they chose was to use the federal judiciary to, in the words of Thomas Jefferson referenced previously, “…make it [the Constitution] a blank paper by construction.” Jefferson meant by construction what we today refer to as deconstruction or the equivocation of key words and phrases in order to create confusion in the reader about what the writer meant. The writer then capitalizes on the confusion to build an argument reconstructing the meanings of the words in support of his position on the issue.

Nowhere is this use of equivocation to steer the course of debate more evident than in Joseph Story’s Commentaries. Story spills much ink in attempting to explain that the colonies and the states that replaced them as they declared independence from the British Crown were not ever sovereign political entities. He does so by positing an advantageous definition of the word sovereignty then working to demonstrate that the states never comported with his definition.4 He then cherry-picks quotes from state ratification debates to support his main premise that sovereignty passed not to state governments but directly to Congress.5 Story also supports his argument with this whopper-

In the next place, the colonies did not severally act for themselves, and proclaim their own independence. It is true that some of the states had formed incipient governments.6

Abel Upshur deftly dismantles Story’s argument of this specific point as part of a broader dismantling of his deconstruction of the word sovereignty. He demonstrates that several states, including Virginia, declared independence unilaterally prior to the July 4, 1776 declaration by Congress7 and further refutes the argument that sovereignty passed directly from the King to Congress.8 John Taylor anticipates Story’s attempts to redefine the meaning of sovereignty (the argument was not original to Story but can be traced back to nationalists at the Constitutional Convention) in a chapter that specifically examines the definitions of words being used in the argumentation. Taylor knew that in order to truly evaluate the arguments from the various positions on constitutional interpretation there must be a clear understanding of the definition of the key words being used.9 It is interesting to note that despite the superiority of the argumentation from Upshur and Taylor, Story’s Commentaries remain the standard reference on the structure of the federal government as created by the Constitution. That can be seen in congressional debates like the so-called Webster-Hayne debate of 1830 in Congress over the creation of a protectionist tariff. Though Daniel Webster gets most of the attention of modern historians it was Robert Hayne who was considered the winner of the debates at the time. Webster relied on the groundwork laid by Alexander Hamilton, John Marshall, and Joseph Story in redefining the meaning of sovereignty in order to argue that states didn’t have it. Hayne argued Taylor, Upsher, and, Tucker’s position based on the unequivocal meaning of the word as it was clearly understood at the time of the establishment of the republic.

Redefining key words remains the technique of choice in modern debates over constitutional issues when obfuscation of one fact or another is necessary to swing opinion on the debate. Therefore, we have laid out a list of questions that must be answered and answered in a manner consistent with established definitions of key words and phrases. We will endeavor to uncover equivocation of key words and phrases when we find them.

Question 1) What crisis is the new constitutional convention call to address?

There are MANY groups agitating for what they call “single issue” convention calls (more on this further down the question list)- balanced budgets, illegal immigration, the so-called “Fair Tax,” an end to abortion, etc. One proposal calls for an amendment to the Constitution that would allow the legislatures of 2/3 of the states to negate federal legislation. We would ask what these advocates think the 9th and 10th amendment do, exactly (not to mention why they’re not working to repeal the 17th amendment instead of asking for a new constitutional convention)? Apparently, they believe that the 9th and 10th amendments are mere philosophical statements and not organic law of the republic reiterating the clear principle that the enumerated powers are the limits of federal authority and that the checks and balances mechanism extends to the external authority of the states, rather than allowing the federal government to be the final judge of the extent of its own powers. It is precisely this paradigm which has allowed federal power to slip the leash and become a rogue.

The hot topics during the current “constitutional crises” that supposedly require a convention to fix are 1) a federal balanced budget amendment and 2) the aforementioned amendment that would create a constitutional provision for the states to negate federal laws with the concurrence of 2/3 of their legislatures, the so-called Repeal Amendment. Many groups including those with a great deal of influence on conservative state legislators like the American Legislative Exchange Council (ALEC) and those who have influence at the grass roots level like 10 Amendments for Freedom and Citizen’s Initiative are very active in applying pressure to call a convention for these specific purposes. It appears though that neither the legislative lobbying groups nor the grass roots have put much time or effort into looking into the Constitution to determine if there is any existing solution to these “crises.”

This question is first on the list because it is by far the most important. If there is an existing constitutional remedy or if the problem can be fixed by some remedy already existing in law then it is obvious that a constitutional convention is a completely unwarranted gamble. What’s worse is that it also means that there are those actively calling for constitutional conventions who know they are not necessary. Why? The only reason to agitate for an unnecessary thing in the realm of government policy is that there is political gain to be had from it. The agitating groups know that there is a strong probability that a new convention means a new constitution.

This leads us to the next question, really a sub-question since the first leads directly to the second.

Question 2) Does this crisis have an existing constitutional solution?

This author was recently interviewed on this topic by Steve Deace on WHO radio in Iowa prior to the election in which 3 Iowa Supreme court justices were removed from office in what is called in Iowa a retention vote, a process in which judges appointed by committees can be removed by voters after a term in office. The question was regarding the calling of a state constitutional convention to handle what many in Iowa (a substantial majority it turns out) viewed as judicial abuse of authority. I argued that if there was an existing constitutional remedy then the calling of a convention was a dangerous gamble. You can access this interview HERE. My portion begins about 20 minutes into the segment.

In every case of the previously cited “crises” purported to require a new convention as “the only answer” close analysis demonstrates that there is an existing constitutional remedy to the “crisis.” Besides the 9th and 10th amendment powers solution to the Repeal Amendment “crisis” mentioned earlier there are also existing solutions to the so-called “Balanced Budget” crisis. The “balanced budget” problem is not constitutional. The problem is with politicians who buy re-election with expensive programs that are already unconstitutional, and therefore forbidden. What is actually occurring in many of these cases is that someone with a limited understanding of the inner workings of a constitutional convention call and even less understanding of the consequences involved has determined that the threat of a new constitutional convention is a wise tactic that will move his organizations “ball” towards the goal. In effect, these groups are engaging in what Russell Caplan, who was at the time he was writing his book an attorney with the US Justice Department, called “constitutional brinksmanship.”10

Constitutional Brinksmanship

Constitutional brinksmanship is characterized by the use  or creation of a “constitutional crisis” to create a sense that “something must be done, immediately.” Once the sense of crisis is established, one side of the issue or another (or several) puts pressure on Congress to remedy the situation. If the crisis is serious enough to require that Congress actually do something about the problem (real or created), but it is clear to Congressmen and Senators that doing something about the problem might lead to one segment or another of the electorate becoming disaffected enough to actively campaign to remove that member of Congress, they will attempt to put off any real solution with some meaningless or temporary legislative patch to appease voter segments. Realizing that this is being done, the activists behind the pressure then step it up in the form of petitioning state legislatures for passage of resolutions petitioning Congress to call an Article V “amendment convention.”

This has been an effective tactic when there is sufficient emotional capital behind the issue to create enough grassroots pressure accompanying special interest group pressure on both Congress and state legislatures to move them. Under these conditions all sides inexorably move toward the precipice of a constitutional convention. The people knowledgeable of the potential consequences on either side of the drive know that a constitutional convention is a vast unknown quantity but they work to keep the parties applying the pressure and the legislatures assured that everything can be controlled knowing full well that the delegates alone control any constitutional convention and therefore is a gamble. The brinksmanship game then becomes really interesting because what is supposed to happen is that all sides reach the edge of the precipice, peer into its murky depths and decide that some compromise short of a convention is necessary. Hence it is a Hegalian dialectical exercise of thesis-antithesis-synthesis. In nearly every case the result is a re-interpretation (meaning elimination or reduction) of one or several Constitutional liberties by the use of, in Jefferson’s words, construction. But what if neither of the sides blinks? Those pushing for a new constitutional convention have adopted the attitude of the smoker working in a fireworks factory that decides to sneak a smoke at his workstation and thinks to himself “how bad could it be?” The answer is much, much worse than you know.

Next we deal with the question “can a convention be controlled at all?”

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4 Story, Joseph, LLD, Commentaries on the Constitution of the United States, 2010, Lonang Institute, www.lonang.com (Kindle Version), Book 2, §200-210

5 Story, Joseph, LLD, Commentaries on the Constitution of the United States, 2010, Lonang Institute, www.lonang.com (Kindle Version), Book 2, §212

6 Story, Joseph, LLD, Commentaries on the Constitution of the United States, 2010, Lonang Institute, www.lonang.com (Kindle Version), Book 2, §211

7 Upshur, Abel P., A Brief Enquiry Into The True Nature And Character Of Our Federal Government: Being A Review Of Judge Story’s Commentaries On The Constitution Of The United States, 1868, Van Evrie, Horton & Co., New York, NY, pp. 53-56, A facsimile document which is an HTML Conversion of the original is available from the Constitution Society http://www.constitution.org/ups/upshur.html. The authors of this paper use a comb bound, paginated version of this HTML document separated into chapters. Page references are from this document. Contact [email protected] for inquiries on this version.

8 Upshur, Abel P., A Brief Enquiry Into The True Nature And Character Of Our Federal Government: Being A Review Of Judge Story’s Commentaries On The Constitution Of The United States, 1868, Van Evrie, Horton & Co., New York, NY, PP. 17-92 (chaps. II-VII)

9 Taylor, John of Caroline Virginia, New Views of the Constitution of the United States, 2000, Regnery Publishing, Washington DC 20001, pp. 1-11

10 Caplan, Russell L., Constitutional Brinksmanship- Amending the Constitution by National Convention, 1988, Oxford University Press, New York, NY 10016

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Exactly!

One of the current pushes for a new constitutional convention is for an amendment that would allow 2/3 of the state legislatures to overturn federal legislation that upsets the balance of federalism.  Since this is an area of some interest to us at the Policy Institute we try to find scholarship that supports our position on such things.

Dr. Tom Woods explains in his book Nullification why the power to nullify federal law already exists in the form of the 9th and 10th amendments to the current Constitution.

In this video Dr. Woods also explains what happens when you propose solutions that the mainstream politicians and media don’t like or find to be “dangerous” (amazing that we live in an age where a shackled federal government is a dangerous idea). Especially since, as Dr. Woods book demonstrates in the book, nullification has been used highly successfully by states to turn back federal tyranny.

[youtube]http://www.youtube.com/watch?v=N_KuIL7icUc&feature=player_embedded#[/youtube]

Watch the video that follows and see if you get Dr. Woods point and the joke. An interview with a zombie.

[youtube]http://www.youtube.com/watch?v=TrcM5exDxcc&feature=channel[/youtube]

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Policy Institute On The Radio-The Con-Con Con Job On The “Mission America” Program

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On Tuesday January 18,2011 Barry Sheets, the director of the Institute For Principled Policy, was the guest host on Linda Harvey’s Mission America program on WRFD radio. His guest was Chuck Michaelis, the Vice-chairman of the Institute and Executive Director of Camp American. The subject was efforts by a number of nominally “conservative” groups to call a new “single issue”  or “shackled” constitutional convention.

The Institute For Principled Policy has done extensive research on the issue of “single issue” or “shackled” federal conventions and has drawn the conclusion, based on the evidence presented by proponents of such a convention, that the result of such a call would be a disastrous discarding of the current constitution and the creation of a new constitution.

You can hear the half-hour interview here.

Chuck Michaelis and Tom DeWeese have done several classes on the history and consequences of constitutional conventions at Camp America in 2009 and 2010. Videos of these talks are available at a nominal cost from Camp American- click here.

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Understanding The Game Behind The Curtain

This entry is part 2 of 6 in the series Crises, Coups and Constitutional Conventions

There is currently a movement in the United States that is gaining a disturbing momentum. The leaders of the movement are agitating state governments to petition Congress to call a new constitutional convention. While groups on the left have been demanding a new convention for the purpose of re-writing the existing Constitution for decades  the current calls are coming from groups that most would place in the “conservative” category. The liberal groups are calling straightforwardly for a convention with plenipotentiary constitution making authority while the conservative elements are calling for a convention limited by charter for the purpose of amending the existing Constitution.  While the latter sounds reasonable it is the opinion of the Institute For Principled Policy, not on our own authority but based on extensive research on the legal, historical, and procedural precedents set by conventions of the United States, colonial America, and Great Britain, that the chartering of a so-called controlled or “shackled” constitutional convention will have the same result as the calling of a convention with plenipotentiary authority. That predicted result in either case is a new constitution. Based on further research into existing constitutional models, parts which are already being implemented, we believe that the government created by any new constitution will be divorced from both the bedrock philosophical moorings laid out in the Declaration of Independence and from the shackles imposed by the current constitution. In this light the Hegelian Dialectical nature of the debate over a new constitutional convention is exposed.

In this series we will present the case and documentation that are the foundation our positions.

_______________________________________________________

You will understand the game behind the curtain too well not to perceive the old trick of turning every contingency into a resource for accumulating force in government– James Madison to Thomas Jefferson March 14, 17941

Who are the players?

There are four major views about the calling of a new Constitutional Convention (Con Con). One of them is by far the most dangerous, but it’s not the one you might think. That group will be revealed later in the discussion. The first position we are describing as the “What’s a Constitution?” position. While that’s something of an overstatement (all of these position descriptions are slightly caricaturized in order to simplify the discussion. In reality there are positions that are subtle blends of these positions), what can be stated without exaggeration is that constitutional literacy is at a nadir. We can also say without exaggeration that this is apparently the majority position. This group is, by and large, out of the debate over a new Con Con except insofar as it can be manipulated by one or the other of the remaining groups. Because this group is so grossly ignorant of the Constitution they are often easily swayed by attractively packaged sound-byte style arguments. Because they neither know nor care to know the historical conditions of the first Con Con, they are unable to discern that there are concerted efforts to create a public demand for a new Con Con using deception and outright falsehood to do so. For simplicity’s sake we will call this group “the disengaged.”

The second position is best characterized by the statement “A new Con Con is a dangerous idea in the current social and political climate.” This group is best described as “constitutionalist” rather than “conservative,” since they believe that there is nothing wrong with the country that cannot be solved by a return to foundational constitutional principles. This group would argue that the original intent of the Constitution should be the guiding principle of law, but that the intent of the framers was set aside long ago by “consolidationists,”- those who would concentrate government authority in Washington DC by any means necessary but mostly through the federal courts. Thomas Jefferson foresaw the problem of expansion of federal authority through the process of construction and stated to Wilson Nicholas in an 1803 letter-

I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.2

To make it clear, the Institute for Principled Policy takes this position. For simplicity we will refer to this group as “the constitutionalists.”

The third position is best characterized by the statement “A new Constitution MUST be written in a new convention immediately, if not sooner” position. This group can be spotted by their rhetoric. You will hear things like “the Constitution was written for a different time” or “the Constitution was written before mass communication, transcontinental travel, while the US was a small de-populated shoestring nation, before the ICBM, terrorism, etc., etc. etc.” Of course, all of these arguments are empty because they ignore the reason the Constitution was written the way it was.

The Constitution was written to restrict the ability to concentrate power in a central government. The desire to accumulate power is a timeless problem based on man’s sinful nature. The members of this group are radical revolutionaries. They are fully aware that the limits on government built into the Constitution simply cannot be sufficiently twisted, manipulated or re-interpreted to allow the confiscation and redistribution of wealth or to build the necessary power structures required to administer the giant welfare state that would have to be created.

This group believes strongly that the current Constitution represents an obsolete view of government as the protector of God-given rights in favor of the view that government is the fount from which springs all good things including man’s rights and needs. Because the document represents superseded theory of government it must be smashed and replaced with one that is more in tune with “modern theories” (in fact just rehashed ancient theories of despotism) of government. Members of this group, in accordance with their operational atheism (though many would claim agnosticism or some form of powerless faith in a deistic god), believe that the end justifies the means by which the smashing of the Constitution is done. They will say or do ANYTHING to get a new convention. They are media savvy and smart enough to realize that they are in a minority. Therefore, in order to get the convention they want a way must be devised to recruit members of another one of these groups. They realize that with a careful use of deception and manipulation of certain crises enough people from the first or second groups can be induced to change positions to the fourth group and the fourth group can be baited into joining them in calls for a new convention. For simplicity we will refer to this group as “the radicals.”

The fourth group is best characterized by the statement “a ‘shackled’ Constitutional Convention can be called and completely controlled by the states” position. Of the four basic positions this one is the most dangerous. Considering the description of the previous position you may find this surprising. But it is the combination of historical illiteracy and the legitimate desire to use existing legal procedures to solve crises in government that has led to a situation that can only be described using Paul Craig Roberts’ phrase, “the tyranny of good intentions”3. That is because they have taken the bait dangled by the radicals without doing the necessary historical research to confirm the assertions made by them. The bait is that a single issue convention can be called by the states and can be controlled by “strongly worded” state and federal constitutional convention resolutions, up to and including adding “criminal penalties” for failure to comply with those resolutions (creating major procedural and constitutional faux pas that will be discussed later). The problem with this is that the bait hides a hook. The hook is that all of the procedural rules and legal and historical precedents expose the fact that a “controlled” convention is a myth cut from whole and that a convention cannot be held to any legislative restrictions. Once the bait is taken and the hook set the fish finds itself in a situation that it neither expected nor wanted. The fisherman however has exactly what he set out to get.

The vulnerable group is the most dangerous in the Con Con debate because, in many cases, they have trusted moles from the radical group. The radicals have worked themselves into prominent positions in think tanks that the vulnerables trust to give them the correct information and have badly misled them. The radicals are willing and able to use personal relationships to pass along skillfully twisted versions of history and carefully constructed tendentious arguments in favor of a “controlled” single-issue convention. Though the vulnerable group is the most dangerous, they are not the enemy; in fact many good constitutionalists have adopted this position. Most of them believe in government limited by law. What has happened is that many in this group have been seduced by reasonable-sounding but false arguments regarding constitutional procedures and precedents. This group is well-meaning and enthusiastic about real reform and a lack of historical reference points makes them vulnerable to unscrupulous radical Con Con advocates with a knapsack full of convincing but false talking points. For simplicity we’ll refer to this group as “the vulnerable.”

Rules of the game

Most of the players are under the impression that there are a set of rules. They believe that all players have agreed to be honest in presenting their arguments and the facts that form the foundations of those arguments. In any game where at least one of the players believes that the end justifies the means (e.g., the radicals, including those who are posing as vulnerables) the rules the others are playing by are rendered meaningless by players who deny either the validity of the rules or that the rules apply to them. It is as if in a high-stakes poker game one of the players has slipped a marked deck into the game and additionally has concealed a number of face cards for later use. The cheater might attempt to defend himself with the excuse that his winnings will be used for “the greater good” but that does not change the fact he is a fraud and that his idea of the “greater good” not shared by the other players. This puts the other players at an extreme disadvantage because they still assume that there are rules that all of them are playing by. In the case of the Con Con call game, the rules are thought by the players to be honesty regarding arguments made about the historical, procedural and legal precedents of previous calls, resolutions and conventions. The stakes in the game of whether or not to call a new constitutional convention are too high to assume impeccable honesty on the part of those making the case for a new convention. Therefore the players must carefully examine the claims both for and against the calling of a new constitutional convention. In the words of Ronald Reagan, “trust but verify.” They must ask carefully crafted questions aimed at confirming the claims, pro and con, of the different players and, VERY importantly, they must CONFIRM the answers given. It is not enough to trust that the answers given are the honest truth. Remember, that the radicals will say ANYTHING to get a new convention and that they do not play by the rules. We realize that since this assertion is done in a way that puts the burden of proof on us and so we will make our case by providing the answers to questions that no one else seems to be asking (or if they are asking they are accepting answers at face value) regarding the calling of a new constitutional convention.

In the next part of this series we will begin to examine the questions that MUST be answered.

__________________________________________________

1 Madison, James, Letters and Other Writings of James Madison Fourth President of the United States in Four Volumes, Vol. II 1794-1815, J.B. Lippincott & Co., Philadelphia, PA, 1865, P. 7

2 Peterson, Merrill D., ed., Thomas Jefferson, Writings, Library of America, Literary Classics of the United States, Inc., New York, NY, 1984, P. 1140, letter to Wilson Carey Nicholas

3 Roberts, Paul Craig, Lawrence M. Stratton, The Tyranny of Good Intentions; How Prosecutors and Bureaucrats Are Trampling The Constitution In The Name of Justice, Forum (an imprint of Prima Publishing), Roseville, CA 95661, 2000

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Crises, Coups and Constitutional Conventions- Introduction

This entry is part 1 of 6 in the series Crises, Coups and Constitutional Conventions

There is currently a movement in the United States that is gaining a disturbing momentum. The leaders of the movement are agitating state governments to petition Congress to call a new constitutional convention. While groups on the left have been demanding a new convention for the purpose of re-writing the existing Constitution for decades  the current calls are coming from groups that most would place in the “conservative” category. The liberal groups are calling straightforwardly for a convention with plenipotentiary constitution making authority while the conservative elements are calling for a convention limited by charter for the purpose of amending the existing Constitution.  While the latter sounds reasonable it is the opinion of the Institute For Principled Policy, not on our own authority but based on extensive research on the legal, historical, and procedural precedents set by conventions of the United States, colonial America, and Great Britain, that the chartering of a so-called controlled or “shackled” constitutional convention will have the same result as the calling of a convention with plenipotentiary authority. That predicted result in either case is a new constitution. Based on further research into existing constitutional models, parts which are already being implemented, we believe that the government created by any new constitution will be divorced from both the bedrock philosophical moorings laid out in the Declaration of Independence and from the shackles imposed by the current constitution. In this light the Hegelian Dialectical nature of the debate over a new constitutional convention is exposed.

In this series we will present the case and documentation that are the foundation our positions.

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About once a decade or so, over the last 40 years, a group of social activists decides that a new constitutional convention would be a good idea for one reason or another. The 2010’s have proven to be no exception. What is exceptional about the early 2010’s is that there is a looming governmental and economic crisis that could conceivably provide the “tipping point” necessary for a new convention. In the past, issues like the so-called “Fair Tax,” immigration reform, a balanced budget amendment, state sovereignty (already covered in the 9th and 10th amendments to the Constitution) and a host of others, one group has a list of 10 proposed amendments, have been used as motivating issues. Up to this point, none of these issues, taken singly, have had the horsepower necessary to create the political pressure necessary to trigger a serious call for a constitutional convention.

The concept of the “tipping point,” a rapid and pivotal change in public opinion or the opinion of key players at critical points of history that occur prior to and which drive key historical events1,  is a crucial concept in the history of  the Constitution. The number of constitutional conventions held in the United States is small, only one so far, but the histories of the convention are voluminous. And, sadly, much of what is written in these histories is wrong, based on the writings of those who were diligently working to create a shift in public opinion and were not above a healthy dose of propaganda to create a “tipping point” in favor of replacing the confederated government of the Articles of Confederation with a new, “national” government which would eliminate the states as sovereign entities. After working for years to undermine the authority and effectiveness of the Articles of Confederation, nationalists (those in favor of a new national government) in Massachusetts, found their state embroiled in a crisis, which if sold properly, could be used to mold public opinion and the opinions of key players like George Washington into demanding a new constitutional convention. Men like Henry Knox, Benjamin Lincoln and other former members of Washington’s Continental Army staff, many of them members of the society of the Cincinnati, began writing exaggerated and inflammatory accounts of the events of Shays’ rebellion to key players in Congress, the press and George Washington. Thus Shays’ Rebellion, a local crisis based on a failure of the Massachusetts state government to redress the grievances of its citizens, was turned into an embryonic popular revolt that “threatened to spread across state lines” using carefully constructed accounts of the events that created something of a panic. These were all but a complete fiction. And yet the evidence of this has only been chronicled in any detail in the early 21st century by a scholar who discovered that his university was in possession of the official archives of the rebellion and decided it was time for a fresh look at the data. What he discovered was that the generally accepted accounts of the rebellion don’t match the events painted by the official records.  History truly is in the hands of the victors.

The question we must ask in light of this information is, can something similar happen in our time? Are there individual or groups who want a fundamental change in our form of government and are they willing to exploit a crisis or create one to achieve the goal? Secretary of State Hillary Clinton, a progressive product of 1960’s radicalism, demonstrated that her training was not wasted. “Never waste a crisis” she told the European Union when speaking on global climate change and the global economic meltdowns (speaking of created crises). [youtube]http://www.youtube.com/watch?v=B62igfNu-T0[/youtube]Clinton knows history. She knows that no radical change to government is possible except as a reaction to some crisis that is perceived as having no existing remedy that   requires quick and decisive action. Thus the quote attributed to James Madison- “Crisis is the rallying cry of the tyrant”- is demonstrated to be an important insight, whether or not Madison actually said or wrote it.

What if a “perfect storm” of concern and outrage over a combination of two or more of the “hot button” issues from the list above or some other societal problems begins to gain momentum? What about a complete economic collapse? What about more “Obamacare” or bank/financial bailout type situations?  Do people really understand that the problem with our current  government lies not in its structure but in the fact that its limits as outlined in the Constitution, the highest law of the land,  are repeatedly ignored or directly flouted by the very people they return to office election cycle after election cycle? Do people who should, really understand the ins and outs of a new constitutional convention or have the waters regarding the first convention, what happened there and what those precedents mean for a new convention been too muddied by historical revisionism and malignant neglect?  Or have those events been clouded by a fog of general ignorance of the history and causes of the first convention in combination with deliberate efforts to obfuscate them?

In that vein, are you able to spot both the drum beat of  crisis and the fatal problems with this “model resolution” calling for a “shackled” constitutional convention for one purpose and one alone?

Federal Relations Working Group Resolution on Article V of the U.S. Constitution2

Whereas the growth of federal government power at the expense of states has accelerated in recent years; and Whereas limiting the continued unchecked growth of federal power may require Constitutional reform; and

Whereas Congress is unlikely, without outside encouragement to propose any Constitutional Amendment that limits its own power; and

Whereas two-thirds of the states should have the same power to propose individual amendments to the Constitution for ratification as does two-thirds of Congress; and

Whereas when state legislators understand that legal and political procedures could limit an Article V Convention to the consideration of just one amendment, the balance of power between the federal and state governments would be fundamentally altered;

Therefore be it resolved that the American Legislative Exchange Council (ALEC) support and facilitate the education of state legislators about how an Article V Convention called by state legislatures could be reliably limited to an up or down vote on the text of a single amendment to the U.S. Constitution, including the possibility of an amendment that would give two-thirds of the states the explicit right to propose amendments without having to obtain the consent of Congress;

Therefore be it further resolved that ALEC facilitate times for legislators interested in working on this issue in more detail to meet during future ALEC meetings and events.

The drumbeat of the crisis is readily evident . But did you find the far more subtle problem in the “Whereas’s?” It’s there and it’s big. But don’t feel bad if you can’t find it. Most can’t. That’s because there has been so little effort put into teaching the Constitution, how it works and it’s history in primary and secondary education. Colleges, aside from a few isolated outposts of original intent thought teach a dreadfully deconstructed version of the events surrounding its development, how it’s supposed to function and the document itself. That’s why this series is being written.

Since many don’t know the history leading up to and during the Philadelphia Convention in 1787 we’re going to walk through some of the high points (and some of the low) and point out where there has been unintentional and where there has been deliberate blurring of those events.  Some of the history isn’t pretty and some readers will find that founders they had looked at almost as demi-gods will emerge as men of much lower stature, men of great ability who sometimes used their God-given talent to further their own, sometimes less than lofty goals and ends. This is not necessarily a bad thing. Deification of men, no matter their historical importance and personal abilities is a dangerous matter. We will also expose some rather gaping flaws in the Constitution. This will challenge the beliefs of some who believe the Constitution is a Divinely inspired document handed down in revelatory style, on par with the Bible. It will also challenge those adherents to the American civil religion, the First Church of the United States, wherein American citizenship somehow automatically rates a free trip through the Pearly Gates as long as the holy sacraments are received by the congregants.

Don’t misunderstand; the Constitution is a brilliantly written document and is unequaled in history. It has some glaring mistakes, something that is to be expected of a document written by men with different backgrounds, motivations and viewpoints. It is marvelous, eloquent, flawed and in modern political discourse bantered about for public consumption but mostly ignored by the men and women we have charged with a solemn oath to uphold and defend it.

And most of all, it needs to be preserved, defended and protected from those who would like nothing better than to replace it with governing documents that will disconnect our government from its Christian philosophical foundation and  radically redistribute power and wealth and alter American society.

This series will be comprised of 3 parts. Part I is a historical examination of the series of crises that resulted in the  Philadelphia convention in 1787. Part II will be an examination of what is happening today to create or use existing crises to gin up a public cry for a new convention. In the final section we will expose existing plans, already partially implemented as part of the existing system of government, much of it in violation of the current Constitution, just waiting for the exploitation or creation of the level of crisis necessary to create the “tipping point” for a new constitutional convention.

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1 Gladwell, Malcolm The Tipping Point: How Little Things Can Make A Big Difference; Little, Brown, and Co., Boston, 2002, rear cover, “The tipping point is that magic moment when an idea, trend, or social behavior crosses a threshold, tips, and spreads like wildfire”

2 American Legislative Exchange Council Resolution Passed by the International Relations Task Force and Federal Relations Working Group on December 4, 2009. Approved by the ALEC Board of Directors on January 8, 2010