Friday, January 13, 2017

Convention of States Opponents Clueless and Disingenuous

Tim Brown’s arguments range from the careless (morphing “Conference on Constitutional Conventions” into “Convention on Constitutional Conventions”) to the dishonest, twisting Robert G. Natelson’s argument that there have been “conventions” in the past into claiming that Natelson maintains that there have been “Article Five conventions” before.  BTW the fact that the 1861 "Peace Convention" sent its amendment to Congress is not what distinguishes it from an Article Five convention which would also keep Congress in the loop from the outset, which is what the word “Application” suggests in Article Five; who do you think a Convention of States (COS) would apply to other than Congress?



The site of the 1861 convention in Washington, DC,
that proposed an amendment to prevent the Civil War


Participants in the Conference on Constitutional Conventions should not be assumed to endorse every other participant’s views on the subject. They might want to listen to others, discuss the history and, importantly, offer alternatives. (I am reminded of the joke about the Unitarian who faces the choice of going to heaven or attending a discussion about heaven and chooses the latter.)

The fact remains that the Articles of Confederation were weak precisely because Congress had no legal way to prevent, stop or invalidate a Constitutional Convention. All power rested with the states, and the Constitutional Convention had the lawful endorsement of the states - or at least ten of them. It did not need Congress’s approval. When the 1787 Convention was finished, George Washington sent an official copy of the new Constitution to Congress, and Congress was powerless to do anything but submit to the will of the states.


But the ratification of the Constitution meant that the states gave up things, among them, the right to call a future constitutional convention, because that would be unconstitutional under the Constitution.

The fifth article of the Constitution, even though it does not use the term “convention of the states,” says that the states can propose new amendments to the Constitution by means of a convention. The idea of a convention is offered because that was the primary way of doing things in those days. In fact, Article Five explicitly offers the convention as the means of ratifying amendments under either mode of making amendments, although it also allows that the state legislatures can vote on ratification of new amendments in their state houses under either mode. (Mark Levin has recommended a housekeeping amendment that would dispense with the need to hold conventions to propose amendments so that state houses could propose them going forward without a special convention.)


The anti-COS movement seems bloody-minded in upholding the half of Article Five that allows corrupt federal politicians to produce amendments (or not) while denying the legitimacy of the other half of the Article that allows legislators, who are officers of the respective states and closer to the people, to make amendments to our Constitution even though that is the right of the states under the Constitution. Fear of changing the Constitution is absurd when the members of the federal government have already been changing it for the worse and getting away with it, with no end in sight.

Just to give you a taste of how wrong are those who try to argue an alternative history of the Constitutional Convention and the meaning of Article Five, consider this quotation taken out of context by anti-COS advocate Kelleigh Nelson:

“Having witnessed the difficulties and dangers experienced by the first Convention, I would tremble for the result of the second.” —James Madison

James Madison


The context of this quotation is crucial: After the Constitution was presented for ratification, some anti-federalists, pointing out the flaws that they saw in it, called for a new convention to write another, better constitution. Such a convention would have been held while the United States was still governed by the Articles of Confederation, which gave Congress no power to prevent a new constitution from being written, and it would have been just as lawful as the 1787 Convention. Madison was speaking about this situation and not a constitutional convention called after the ratification of the Constitution – and he was certainly not against a convention of the states, which he had just voted to put into the Constitution. BTW, it is entirely possible, though he might have trembled at the idea of "going back to the drawing boards" in 1788, that Madison might be wrong about the advisability of doing so. James Madison was a great man but hardly infallible.

Nelson joins many in the error of thinking that Congress ordered the Convention not to go beyond discreet revision of the Articles, but the Congress actually advised and begged because they had no power or assurance that the Congress would not do what the states authorized it to do. She further believes that the states directed the Congress not to write a new constitution, but, in fact, only two states, Massachusetts and New York, forbade their delegates to write a new constitution. The rest empowered their delegations to do whatever was necessary to improve the Articles, including completely rewriting them. This is why there were three definite runaway delegates - Alexander Hamilton, the only New Yorker to sign the Constitution, and two delegates from Massachusetts - yet, on the whole, there was no runaway convention. (The delegation from Delaware might be considered runaway because, although they had instructions from their government allowing them to endorse a new constitution, they ignored one restriction that the Constitution violated.)


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