A New Constitution-How About Applying The Old One First? Part II

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

A recent story in the UK Telegraph (story can be read HERE) begins this way

This has got to be the weirdest news story of the year so far. Yesterday my iPad pinged with Breaking News from the New York Times: a mass grave, containing 30 bodies, had been discovered in Houston, Texas, it said.

This is about a VERY strange story out of Texas where a private home and property were searched with a search warrant, mind you, on the basis of a bogus tip. More on that later. Despite digging up a man’s private property and rooting around in his home, no bodies were found anywhere on the property nor was any evidence whatsoever uncovered of the “dozens of children’s dismembered bodies” that were supposed to be found there.

Important to note here is that the “paper of record,” the “Old Gray Lady,” the only source of news trusted by establishment liberals reported this story as  unquestionably demonstrated fact in its “Breaking News” bulletin.  Now, that’s not the point here but it is VERY satisfying to point out that not all reported as “fact” by media outlets turns out to be fact. Very often what is reported to be “fact” is 180o out of phase with the actual facts of the case. The New York Times and dozens if not hundreds or thousands of other news outlets got caught in a trap. Thee trap is a philosophy that says “if it bleeds, it leads” meaning the more sensational the story the more likely it is to get hyped. Sensation still sells papers (or radio and TV spots or internet news site hits).

What’s really important to this story is the facts of the case and how the so-called “watchdogs of liberty,” the much vaunted “fourth-estate,” the press has treated how the government has handled the searches of private property in this case. Well, OK. No harm, no foul though, right? WRONG! Dead wrong. There WAS harm here. It was to the United States Constitution and to the rights of not only the homeowner but to EVERY property owner.

All of the news media outlets are now treating this incident as something of a joke. It’s really no laughing matter. But to grasp why we need to review the constitutional reasons why this was not just incompetence on the part of law enforcement but criminal malfeasance. It’s the fourth amendment. here’s the text-

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Let’s examine the text here closely. People have an inalienable right (meaning that it is an intrinsic property of each and every free person by reason of their humanity) to be secure in their persons, houses, papers, and effects. The key word in this portion is secure. According to Webster’s 1828 dictionary the word secure means

1. Free from danger of being taken by an enemy; that may resist assault or attack. The place is well fortified and very secure. Gibraltar is a secure fortress. In this sense, secure is followed by against or from; as secure against attack, or from an enemy.

2. Free from danger; safe; applied to persons; with from.

3. Free from fear or apprehension of danger; not alarmed; not disturbed by fear; confident of safety; hence, careless of the means of defense. Men are often most in danger when they feel most secure.

Confidence then bore thee on, secure1

From the definition a free person should feel completely at ease regarding his right to not be subject to an unreasonable search. But what constitutes an unreasonable search? We’ll go to Webster’s 1828 again and look at the definition of unreasonable

1. Not agreeable to reason.

2. Exceeding the bounds of reason; claiming or insisting on more than is fit; as an unreasonable demand.

3. Immoderate; exorbitant; as an unreasonable love of life or of money.

4. Irrational. [In this sense, see Irrational.]2

Now many of you might ask “So what’s the problem? There was a search warrant issued, after all.” And indeed there was a search warrant in this case. But there’s an additional caveat in the fourth amendment. Warrants can only be issued on probable cause, on the strength of an oath or affirmation regarding the evidence of wrongdoing. So what was the evidence of wrongdoing in this case? See if you believe this to be reasonable. The sequence of events went something like this, at least according to the New York Times (read story HERE). 

…on Tuesday, the sheriff’s office received information that indicated there were the remains of children on the property….Liberty County’s top elected official, County Judge Craig McNair, told reporters that the woman first called about the house on Monday evening, claiming to be a psychic. Acting on her tip, deputies went to the general area of the house on Monday. On Tuesday the woman called back, describing the house in greater detail and telling officials where to search…When deputies went to the house, they found blood and noticed an odor. [emphasis added]

Presumably, at the discovery of the “blood and odor” the “law enforcement agency” then obtained a search warrant. On this point the Times is vague and possibly deliberately so. To have blasted out a “Breaking News” item trumpeting the discovery of “dismembered children” buried in someone’s back yard, rather than holding back and getting the facts straight and asking the tough questions about the search itself they made the editorial decision to go with a bogus story. That tends to make one want to cover their editorial tracks and side with law enforcement on the question of the reasonableness of the search warrant. So was the warrant issued on a reasonable suspicion of a crime? The Telegraph article says it best

…on the back of one phone call by someone who claims to be able to read people’s minds, a massive police operation was launched, a man’s privacy was violated, and around the world Breaking News alerts informed millions of people that 30 dismembered kids had been discovered in Texas. You couldn’t have asked for a better snapshot of the astonishing credulity and weakness for crankiness amongst people in positions of power today. Police are now trying to track down the psychic. But when one psychic can impact on the world in this way, it is quite clear that the problem is *us*, and our capacity to believe the worst and our penchant for hocus-pocus, rather than them. It’s a daft world indeed that can allow itself to be led astray by an eccentric on the end of a phone.

This quote from the Times is most telling about what REALLY happened. This from the homeowner

Gena Bankson, 40, a long-haul truck driver who has lived in the house with her husband, Joe, for about four years, said in an interview on Tuesday evening that she believed the caller was a woman she knows who is “mentally unstable.”

This is the breakdown. On the basis of the word of a possibly mentally unstable “psychic” called police (at least twice) and made wild and unsubstantiated claims on at least one of the calls and claimed a “preternatural knowledge” of the layout of the property in question. On the basis of those calls police went and sniffed around the property in question and spotted blood and smelled decomposing garbage and therefore decided the “psychic” had credibility based on “knowledge of the property.” The blood turned out to be from an acquaintance who attempted suicide and is currently in a psychiatric hospital. The smell was some garbage in the sun. The “preternatural knowledge” of the “psychic” regarding the homeowner’s property was due to an acquaintance with the homeowner.

Does this all seem like a search warrant was issued on an oath or affirmation based on the reasonableness of the evidence? The blood and smell could have been cleared up with a mere knock on the door and checking the story of the homeowner. Was speed of the essence, as someone might claim? How long does it take to move more than 2 dozen dismembered bodies and clean up evidence of butchery of this magnitude, anyway? “But they might have escaped when it became obvious that the police were investigating” some might say. To go where? And does that justify the issuance of a warrant on incredibly thin “evidence” like the word of a mentally brittle “psychic?” But somebody in the police department decided they’d like nothing better than to discover dozens of bodies in some poor schlump’s (read taxpayer’s) back yard and make a big splash in the news. And that’s one of the reasons the fourth amendment is written like it is. Was the strict standard of reasonableness met? What do you think?

Well, the police made their big splash. Like the fat kid at the pool who does a bellysmacker off the high dive. But the press isn’t asking the right questions. Maybe this couple will contact a conservative civil rights organization who will ask the correct questions of the police who applied for the warrant and of the judge (or magistrate) who issued one on this incredibly flimsy evidence. The bottom line question is this- Will the fourth amendment prohibition against unreasonable searches and seizures be enforced? And here is the problem with those who point to things like this and say “See? What we need is an new constitutional convention to “fix” this problem.” No. Since a new constitutional convention is all but certain to weaken the protections we currently have in order to “protect” us you see, then perhaps we should actually try enforcing the constitution we have rather than replacing that which is unbroken.

Notes:

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1 http://www.1828-dictionary.com/d/search/word,secure

2 http://www.1828-dictionary.com/d/search/word,unreasonable

A New Constitution- How About Applying The Old One First? Part I

This entry is part 5 of 6 in the series Crises, Coups and Constitutional Conventions

We live in a period of crisis. The crisis we are in is a crisis of the Constitution. It is a two-fold crisis; the document is mostly unknown by the people whose rights are supposed to be protected by it and mostly ignored by the representatives who are elected by those people to properly apply the powers and protections it grants. In many cases the peoples’ representatives are at least as ignorant of the Constitution as the people who elect them, despite the peoples’ belief that their representatives are “experts” in what it contains.

One of the most important things a citizen of the United States can do is learn the Constitution. but it just isn’t enough to learn about the Constitution, a citizen must know how to use the Constitution. It is the most powerful tool in the arsenal of any citizen.

This has become a foreign notion to people who aren’t taught the Constitution in school or in college. This is, sad to report, most people in the United States today. This constitutional ignorance has a two-fold effect; it paralyzes the citizen confronted with a question of constitutional interpretation and it gives government employees and agencies a status as “experts” that is neither correct or deserved. This “expert” status gives them a free hand to make some of the most outrageous claims regarding their power and authority. It enables them to spuriously cite constitutional passages and claim that the text gives them powers that were never delegated to the federal government. And who will stop them? Constitutionally there are checks to federal power. But those checks require an informed populace. So how can one become informed?

The Institute for Principled Policy has joined with Camp American to teach classes on the Constitution from materials provided by the Institute On The Constitution. Not just what it says, but how to apply it. The information offered below was taken from a practical application lesson given at a recent Institute On The Constitution class. The graphics are Power Point slides used in teaching the segment of the class.

The example used in the class is a recent article in the Transportation Safety Administration’s (TSA) blog. As background, the state of Texas is working on legislation that would outlaw the current use of “enhanced patdowns (in reality merely randomly administered obscene groping)” by TSA screeners at airports inside Texas. The blog article starts with a bold claim about Article VI of the US Constitution, often called the “Supremacy Clause”

 

What should a citizen who cares about his liberty do about a situation where someone or some agency who purports himself/itself to be an an expert has made a claim regarding his or the agencies powers under the Constitution? Is There some methodical way to examine the claim to determine whether or not the claim is valid or merely an attempt to sandbag the citizen by boldly bluffing regarding the extent of the person or agency’s powers?

Yes there is a method that is really rather straight forward and requires nothing more than the ability to read and reason.

 

 

We have already seen the challenge. It is an assertion (offered with no proof) that Article VI, §2 “keeps the states from regulating the federal government.” So, what should the first step be?

 

Here’s the text of Article VI, §2-

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

OK, a careless reading of the article and section could lead one to conclude that all laws made by the federal government were the supreme law with no recourse to local law or courts for relief. But is that all the effort we should put into the analysis? No. A little closer reading shows that there is a limiting factor to the “supremacy clause.” Look closely and find what it is. Do you see it? That limiting factor is one of the most important things you can know as a citizen- the Constitution itself. Look at the first clause of the first sentence- “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof.” That is a key part of the section of the Constitution in question. It raises the question “is the TSA’s action being done in pursuance of the remainder of the Constitution? If not then what of the TSA’s claim? The Constitution itself tells us that

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people- Amendment 10

So, from the Constitution itself, we know that if the TSA is operating outside the powers delegated by the states and the people to the federal government then their activities are illegal. But our analysis is not yet complete. The enumerated powers of Article II, §8 gives the federal government the power to regulate interstate commerce. Regulate here means “To adjust by rule, method or established mode;…To put in good order;…To subject to rules or restrictions;” 1 So we see that the federal government has the right to regulate interstate commerce, which covers most flights in the state of Texas- but certainly not all. Now we must ask if that power is absolute, and if not what are its limits? A quick glance at the 4th amendment gives us the answer

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Is a feel-up by a TSA screener as a condition of flying a reasonable search, especially considering the burden of proof and other conditions required by the amendment for the issuance of a search warrant? Arguably the answer is a hearty NO! So, now what?

 

 

One of the burdens of knowing what to do is the responsibility to do it. The slide is a suggestion for the action you can take once your analysis is complete.

One of the major issues we face is paralysis in the face of the challenges from out of control agencies like the TSA. This has prompted some with a weak understanding of the details of the Constitutional Convention or conventions in general to claim that we can cure the ills of the American Republic with a new constitutional convention. They are under the wildly irrational notion that men and women who willfully violate and ignore the Constitution we have will somehow fall into line and obey a new one to the letter.

What’s clear from this exercise, which is simply one of a nearly endless supply of constitutional violations from which to choose, is that the Constitution is viewed as mere formality to be avoided or reinterpreted to fit the needs of those wielding power. Before we roll a pair of loaded dice with a new convention, let’s try using the Constitution we have as it was intended to work.

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1) Noah Webster’s 1828 Dictionary online version, http://www.1828-dictionary.com/d/search/word,regulate

Position Statement- Position on an Article V Constitutional Amendment Convention

This entry is part 4 of 6 in the series Crises, Coups and Constitutional Conventions

The Institute for Principled Policy’s position on the calling of a new Constitutional Convention

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.

The Policy Institute takes the position that a new Constitutional Convention poses a grave hazard to the original intent for the design and function of the federal government of the United States. It is therefore a grave danger to the United States, its individual states and its citizens.

We agree with proponents of a convention that the system as it is currently executed (but not the document governing the system) is badly broken and in dire need of repair. We strongly disagree however that the way to fix the system is by imperiling the existence of the system upon opening it to the radical innovators awaiting such an opportunity . Even the proponents of a new convention acknowledge that it is, at best, a gamble.

False “either/or” dichotomy

Retired law professor Robert G. Natelson, Senior Fellow at the Goldwater Institute and author of position papers that are being used as the “go to” arguments employed to refute objections to a new convention, wrote the following

“Of course, abuses of the Article V amendment processes are possible. But the possibility must be viewed against the clear and present danger to individual rights and freedom of doing nothing.”1

The Institute for Principled Policy contends that there is far more than just a “possibility” of an abuse of the process. And it is the clear sentiment of his paper’s larger quote that the US is in a crisis and the crisis is rapidly worsening. We would agree with this sentiment.

However we must contend that the solution to the system dysfunction will not be quick and certainly will not be the result of a risky gamble in a rigged game with everybody at the table “all in” but will come from dedicated citizens working to restore respect for and obedience to the highest law of the land- the Constitution.

Crisis is inevitable in government, and part of the purpose of government is to deal with crises while maintaining order and justice. No major change in government can be made without the presence of a crisis (or crises) which the current structure is allegedly unable to handle. There is simply no reason to believe that elected officials who openly ignore the both the letter and the spirit of the current Constitution would be any more likely to obey new amendments or a new constitution that might be proposed and ratified by a new convention than is currently the practice.

Which crisis is critical enough?

There has not been enough evidence provided, or likely will be, to convincingly argue that the current Constitution leaves no method of solving whatever supposedly insurmountable crisis is being proffered as the rationale for the call for convention. There are several candidates for this position- a balanced budget, personhood of the unborn, state negation of federal law, forcing Congress to obey the same laws passed for individuals, etc. etc. In every case there has been shown NO compelling evidence that the current Constitution is not adequate to control these crises, all of which are legitimate concerns.

Sadly, the first Constitutional Convention was the result more of a purposefully manipulated crisis (Shays’ Rebellion) than the nation’s real difficulty, which could have been solved by agreement of the 13 states, regarding interstate trade issues.2 The solution to our current crises is the election of representatives who will obey, uphold, defend, and protect the Constitution, not bend, re-shape, dismember or ignore it according to the will of personal and special interest.

Reading into Article V: First salvo

The most prevalent argument among groups calling for a new constitutional convention is based on the language of Article V:

‘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…’

There are two clauses in this language that proponents of a new convention consider to be great bulwarks of their position. The first “…on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments…” is believed to give the states and the states alone the power to force Congress to call a “shackled” or “limited” convention, bounded by “strongly worded” state legislature-written resolutions authorizing the convention and appointing delegates to it for the purpose of amending (and only amending) the current Constitution.

There are several serious breaches in this seemingly formidable defensive wall that render it vulnerable if not completely useless. The first breach is in the legal and historical precedent set by the first Constitutional Convention. Despite a very strongly worded resolution written by Congress asking the states to authorize a convention in Philadelphia limited to the “sole and express purpose of revising the Articles of Confederation” and VERY strongly worded resolutions authorizing delegates to attend and requiring them in nearly every case to discuss amendments to the Articles of Confederation ONLY, the first convention was a runaway. Despite the “strong shackling,” the first act of the Philadelphia convention was to vote to act in secret and the very first day was spent in deciding to discard the Articles of Confederation and write a new constitution. Many objected that this completely violated the clear letter if not intent of their written charters but in the end 39 of the 55 framers signed the new document.

So, did a “shackled” convention supposedly restrained by “strongly worded” resolutions have any effect in preserving the Articles? Not for a majority of participants.   Professor Natelson makes a long and complex argument regarding the meanings of words contained in the resolutions to try and make a case that the states really knew that they were going to be entirely re-writing the Articles of Confederation. Sadly, he resorts to equivocation in the meanings of key words and phrases in order to bolster his case. Despite his claims, at least sixteen of the convention members from several states appear not to have been privy to this knowledge prior to attendance, and several states seem to have been left out of this general knowledge as well. In the end his argument is refuted by an examination of his claims in light of the very same historical documents the author himself cites.

Missing the point

Another serious breach is found in a flaw in the language of Article V. Note that while the states are empowered to force Congress to call a convention for amendment purpose there is NO language requiring them to leave delegate appointments to the states. Therefore Congress has a free hand to appoint delegates themselves or set a list of strict requirements (“constitutional scholars,” “legal scholars,” law school professors, political scientists, etc.) upon the selection process. But there is absolutely NO reason to believe the states will be in charge of appointing delegates to or setting the agenda of any new convention. The language that needs to be there is simply missing. The Institute for Principled Policy has been making this point for over 2 years now, since the Ohio legislature held hearings on a federal Constitutional Convention call resolution in December, 2008. Only recently has it been tacitly admitted by groups like ALEC (American Legislative Exchange Council) that we were correct in the form of their ‘Madison Amendment’, an amendment that is supposed to fix this flaw in Article V.

ARTICLE ___. The Congress, on Application of the Legislatures of two thirds of the several States, which all contain an identical Amendment, shall call a Convention solely to decide whether to propose that specific Amendment to the States, which, if proposed shall be valid to all intents and purposes as part of the Constitution when ratified pursuant to Article V.

Please look closely and see if you can spot the flaw in this “fix” based upon our earlier discussion. This amendment does NOTHING to fix the problem of enforcing state participation and control of a new convention. ALEC completely missed the point.

Prof. Natelson does fine historical work on this issue by carefully building a convincing case that the original intent of the framers was that the states would be in control of any convention called to revise the Constitution. In this assessment we heartily agree and believe that Natelson has built a rock-solid case. But Prof. Natelson then demands that original intent be the guiding light of Congress in authorizing a new convention.

This is tilting at windmills in the form of federal hegemony. Having spent 150 years wiping out any vestiges of state sovereignty, to expect the Congress which has worked so hard alongside the other federal departments to destroy as completely as possible state sovereignty to suddenly surrender on the mere demand of the emasculated states that those states be placed in control of a convention which will in all probability strip the central government  of the power accumulated over decades of Constitutional infidelity is a breathtaking display of self-delusion.

Currently, the state sovereignty and original intent that Natelson’s argument depends on for functionality are dead letters at the federal level. Until the states decide to exercise their 10th amendment powers and work to repeal the 17th amendment, the letter will remain dead.

Who’s in control?

Now there is a third issue that Prof. Natelson attempts to address but his efforts strain the limits of credulity. That is the issue of whether or not a convention, once authorized, can be controlled at all, let alone by one or the other authorizing body. He makes the point that many of the 16 men who refused to sign the Constitution at Philadelphia were complying with what they understood to be their fiduciary responsibility to their state legislatures.

But clearly 39 others viewed their fiduciary responsibilities quite differently.  Dr. Natelson defines fiduciary responsibility as follows and we find it a satisfactory definition

A “fiduciary” is a person acting on behalf of, or for the benefit of, another, such as an agent,  guardian,  trustee, or corporate officer.3

We have looked at 350 years of history with regard to conventions to see if we can come to an understanding of the relationship between legislatures and conventions and how one may interact with the other. There simply is not room in this introductory work to address the complexities of this relationship. We can report in shorthand what we have learned so far.

First, the Constitutional Convention delegates set several precedents for American law by ignoring their charters. But why did they believe this was acceptable? The answer we get from our historical and procedural studies is that both legislatures and conventions of a given entity are at least, legally speaking, equals. In both the English and American republican structures of government a legislature is a body representing the governed that makes law within a framework of a higher, limiting authority. A convention that has been chartered to make a constitution for an entity is also a body representing the governed that frames the higher law that legislatures must submit to and obey. In that light a convention is a higher body of representatives of the governed than is the legislature, even though the legislature may have originally sanctioned the convention call.

So, can a convention called by a legislature be controlled by it? Former Chief Justice of the US Supreme Court Warren Burger answered that question in a letter to Phyllis Schlafly on June 22, 1988

“I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey.”4

The bottom line in these two points is that any convention that is called by a “body politic” is the highest law making body in that body. John Randolph Tucker states rather succinctly:

“This principle, the supremacy of the Body-politic as constitution-maker and the subordination of the government as the delegated agent of the Body-politic, with no powers but those derived from the Body-politic by virtue of the constitution, is therefore the foundation of American Constitutional Law.”5

Control of conventions, in the form of rules of procedure and the agenda, is in the hands of the delegates to it, not in the hands of any legislative body that calls it. The delegates’ fiduciary responsibility is to the body-politic (‘We the people’ from the constitutional preamble); not to legislative representatives. Therefore the question of delegate selection becomes of paramount importance. What people are the delegates responsible to? Clearly what Tucker means are the people of the political divisions in which they live:

“And let it be noted here that the Body-politic is not the Government, nor the persons admitted to participate in the functions of Government — but it is the whole body of persons politically associated. The organic force of the Body-politic, that social power which controls persons and things, for peace, order and the common weal, is what we call Government. The expression of that force is Law.”6

Strong special interests will obviously strenuously demand that they be represented at any convention which means that the will of the body-politic as a whole will be diluted by the will of special interests claiming to represent the “good of the whole.” With no language in Article V requiring the states to choose delegates, leaving delegate selection to Congress by default, any new convention will likely be populated by blocs of delegates with agendas and fiduciary responsibility to their particular interest groups. This is a formula for disastrous re-writing of the Constitution.

Reading into Article V:  Second salvo

Returning to Article V, proponents resort to their “iron-clad” defense of their position:  that of the Article V ratification clause requiring the legislatures or conventions of three-fourths of the states to ratify any amendment submitted to Congress. It is claimed that this is an absolute defense against wholesale changes in the current Constitution. But is it?

The Articles of Confederation had a requirement contained in Article XIII that required unanimous consent for amendments to the Articles

‘…nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.’7

How did the founders get around this seemingly ironclad law especially since only 12 of the states actually participated in the Philadelphia convention (Rhode Island chose not to send delegates)? The same question could be asked about the Article V requirement of three-fourths of the states. Could it be circumvented as the Articles were?

The answer is that, yes, indeed it could be circumvented in the same way the first Constitutional Convention avoided the rule- by calling for ratification by state conventions. Why state conventions? Please refer back to the previous discussion on conventions and the body politic. The state legislatures were parties to a binding “perpetual” contract and bound by law to obey the superior authority of the Articles. BUT, a state ratifying convention had the delegated authority, as a representative of the people of the state, to withdraw from that contract with the other states and even to create a new contract.

That is exactly what the state ratifying conventions did. They agreed to conditionally secede from the old union under the Articles and form a new one under the Constitution. The condition was that at least 8 other states also agree to secede and join them. And what would happen to the states refusing to participate? They would be left in possession of the old and essentially useless union.

If this seems unlikely, consider the fact that when George Washington took his first oath of office there were only 11 states in the union. North Carolina and Rhode Island did not come into the new union until late 1789 and spring 1790 respectively. Consider further that the framers were simply following an earlier precedent set by the Continental Congress in declaring independence from the British Crown, the exact equivalent of seceding from that union, and then writing the Articles of Confederation as a national constitution of a new and perpetual union between their individual states. How was this possible? It was possible because the Continental Congress was elected as a convention of delegates appointed by state conventions.8, 9, 10 What does this fact do to ALEC’s ‘Madison Amendment’ that was designed to ensure state legislative control over convention activities? If a convention is really a higher body than a legislature, which it is, then the ‘Madison Amendment’ is rendered a meaningless jumble of high-sounding but impotent verbiage.

New States, no states

Now that we know that it is possible to bypass the current ratification procedure we need to think about how it might happen. There is a model for a new US Constitution that was written in the 1960’s by a group of progressives with funding from the Ford Foundation. The group was called the Center for the Study of Democratic Institutions and was directed by a former underling of Franklin Roosevelt named Rexford Tugwell, who was chosen because he had been heavily involved in an earlier progressive effort to write a world constitution. Since this new constitution was supposed to make the U.S. capable of moving directly into a world governing body and Tugwell knew the model already, what better choice?

His model constitution is called the Newstates Constitution and few today grasp that important concepts of this model are already in place and at work in the United States. If Newstates became the model of choice by a runaway convention (a conceivable scenario should Congress control delegate selection) its ratification procedure consists not of ratifying conventions but a direct plebiscite called and completely controlled by the sitting president who is in virtual total control of the entire process.

Under the Newstates Constitution there are actually no longer any states but mere federal regions in which officials are appointed or elected at the national level. No states means no state ratification. Therefore the new constitutional model bypasses the old one’s ratification procedure in 2 different ways.11

As you can see, the Institute for Principled Policy has serious issues with the calling of a new constitutional convention. There are a number of serious difficulties that must be addressed and must be addressed with legal, historical and procedural scholarship, an effort that the arguments of proponents of a new convention have yet to accomplish.

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Notes

1 Natelson, Robert G., Goldwater Institute Policy Report No. 241- Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Sept. 16, 2010,   p. 2

2 DeWeese, Tom, Charles Michaelis, Dangers of a New Constitutional Convention, Camp American, Louisville KY, June 2009; June 2010, 4-disc video series available at http://www.campamerican.com/?page_id=27&category=13

3 Natelson, Robert G., Goldwater Institute Policy Report No. 241- Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Sept. 16, 2010,   p. 4

4 Burger, Warren, Letter to Phyllis Schlafly, June 22, 1988, available at http://www.eagleforum.org/topics/concon/pdf/WarrenBurger-letter.pdf

5 Tucker, John Randolph, The Constitution Of The United States- A Critical Discussion Of Its Genesis, Development, And Interpretation, 1899, Callaghan & Co., Chicago, IL Vol. I, Chap. 1, §54

6 Tucker, Vol. I, Chap. 1, §3

7 Elliot, Jonathon Ed., The Debates In The Several State Conventions On The Adoption Of The Federal Constitution, J.B. Lippincott Co., Philadelphia PA, 1901, Kindle Version, locations 1645-1658

8 Taylor, John, of Caroline, New Views of the Constitution of the United States, Regnery Publishing, Washington DC, 20001, p. 9

Taylor explains the individual sovereignties of the separate state legislative bodies as they appointed delegates to the Continental Congresses. First by colonial legislatures or specific districts within a colony then, after independence, by the state governments to whom the sovereignty of King and Parliament had passed. Taylor does not detail that each colony had to pass through a convention legislature phase until state governing law in the form of a constitution could be passed.

9 Graham, John Remington, A Constitutional History of Secession, Pelican Publishing Co, Inc, Gretna LA, 70053, 2002, pp. 47-53, 90-96

Graham details the change of government from dependent colonial governments to sovereign independent state governments and demonstrates that each state had to pass through a period of either a convention legislature or electing a convention to build a new state constitution to bind the governments of the new entities. He builds the case that this was based on an understanding of the Common Law precedents set by the so-called “Convention Parliaments” of 1660 and 1688 in Britain. Though the argument is complex, it boils down to the idea that sovereignty only resided in the body of the King and Parliament in Britain as long as the governed, from whom the power to govern flows, consented. He cites the fact that James II was deemed to have abdicated by the Convention Parliament of 1688 because he had refused to rule and abandoned his realm. Without a king, Parliament was left to operate as a convention under the British Constitution until a new occupant for the throne could be agreed to by the delegated authorities of the convention. The convention asked William III to assume the throne along with his wife Queen Mary, James II’s sister. He agreed under the condition that he would only rule as a constitutionally limited monarch and if certain rights were codified into the permanent law of Britain which the convention agreed to, thus creating the current form of the British constitutional monarchy.

10 Tucker, St. George, Notes of Reference to Blackstone’s Commentaries, reformat of the 1803 edition, Lonang Institute, Livonia MI, 48154, Kindle Version, 2010, Appendix to Vol. I, Note C: Of the Constitution of Virginia, Positions 1543-2590

In discussing the origins of the creation of the state government of Virginia in 1776, Tucker presents an ironclad argument that a convention is the highest lawmaking body of any political entity and cannot be limited by the existing constitutional legislature, executive or judiciary. He cites Blackstone’s Commentaries on the legal implications of Britain’s Convention Parliament of 1688 and the Convention of the French Revolution as support for the argument that a convention can do something that a constitutionally limited legislature cannot- dissolve and replace the existing constitution of the political entity. He also explains in clear detail Virginia’s transition from colonial government under the King to independent political entity with no constitutional authority for a government to a constitutionally governed state government. The citizens of the newly independent Virginia understood the necessity of creating a new constitutional authority before a new government could be formed.  Therefore a convention of citizen-delegates had to form a new constitution to properly create the legal authority necessary to design the constitutional governmental structures and create the laws governing the election of representatives to fill the offices created by the constitution. The convention created the highest political law of the state, the state constitution, which bound the elected representatives by oath to obey the limits on their offices and their power imposed by it. The legislature was bound by the higher law. Therefore the convention is the higher body.

11 Tugwell, Rexford G., The Emerging Constitution, Harper & Row, New York NY, First Edition, 1974, pp. 595-621

Questions That Demand An Answer- I

This entry is part 3 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.

_______________________________________________________

“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?”

____________________________________________________________________________________________

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

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

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