The Article V convention is not a subject on the front burner for most Americans. But among those who are familiar with it there are some very strong opinions. Certainly the most vociferous are those who simply oppose the whole idea of constitutional reform or constitutional amendments. They range from the conservative, to the skeptical, to the timid, to the goofy, to the criminal.
An example of one extreme was posted on the Internet on January 6, 2014, at 7:35 PM, at this URL: IIIpercent.blogspot.com/2014/01/article-v-constitutional-convention.html.
Here is what it says:
I have one position. It has not changed and it will not change. Con-con means war-war. Period. Full stop.
Warning to those who think this is a good idea. You are wrong. If you manage to schedule or convene a con-con, I will be there, and I will help to burn the entire fucking place to the ground, with as many people inside as possible. That is not hyperbole. I am not kidding, even a little bit.
We on the liberty side of the equation will not even get a seat at the table. And the people who would be in the room – I would not let them eat … my … trash. I don’t care what promises they might make going into the room, what ‘limits’ they promise to abide by, con-con is immediate, total war.
The moment they go into the room, we burn the entire fucking block to the ground.
That blog managed to attract some sympathetic comments:
Anonymous: January 6, 2014, 9:25 PM
Wish I was closer to ground zero. I wholeheartedly agree. The scumbags entering to renegotiate my confirmed and fought for B o R don’t give a shit about anyone of us in this country. They will be there for the banksters. Burn down the house … talking heads.
Anonymous, January 6, 2014, 10:14 PM:
Lock the doors and gas the nest.
Anonymous, January 7, 2014:
Rather than wait until they are all in a big hall, or convention center, with security all about, instead ask where the leaders and organizers sleep tonight. A stitch in time saves nine.
The III Percent Patriots organization is hardly what might be called a reflection of mainstream American thought. Still it reflects an attitude held by many who equate the United States Constitution with those articles of the Bill of Rights to which they are partial.
The people who posted those comments on the Internet are focused on firearms. To them, the constitution is all about guaranteeing them the right to own and shoot guns.
Their motto is a quotation from Thomas Jefferson:
Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.
Their vision of an Article V constitutional convention is a roomful of un-American communist pinkos, hell bent on repealing the second amendment.
It is perhaps safe to assume that the III Percent crowd are marginal at best, and might even be persuaded that some amendments proposed by Convention USA are reasonable and needed, precisely to ameliorate some of the very ills they complain of.
A far more effective and influential voice is that of the John Birch Society. Founded in Indianapolis in 1958 by retired manufacturer Robert Welch, Jr. and named for a Baptist Missionary who was killed by Chinese communists after World War II, the society counted some very wealthy businessmen among its founders.
Emphasizing educational activities and its conservative anti-communist agenda, the Society grew to about 100,000 members by 1961. Over the years, the Society has embraced a number of conservative causes, including withdrawal from the United Nations, and dismantling of the Federal Reserve System.
By the time Mr. Welsh died in 1985, the John Birch Society had declined in membership and influence. Its opposition to the Viet Nam War and other overseas military operations moved the Society closer to the political mainstream. In recent years, it has become a sponsor of the Conservative Political Action Committee (CPAC) that hosts an annual symposium for conservative politicians and election hopefuls.
In the last 25 years, the John Birch Society has been in the forefront of opposition to an Article V amendatory convention. When a balanced budget amendment marshaled 32 concurrent state applications for a convention, in the early 1980’s, the John Birch Society responded with a campaign to stifle the effort that successfully stalled it, then managed to persuade a number of the state legislatures to rescind their applications.
In the early 1990’s Utah Governor Mike Leavitt spearheaded a movement called the Conference of States that was intended to convene state delegates without an actual convention, but with the purpose of agreeing on structural changes in the relationship between the state and the federal government.
The John Birch Society labeled the effort a constitutional convention in disguise and mounted a successful campaign to defeat state resolutions in favor of it.
In 2012, a Texas businessman named Chip deMoss, working with Goldwater Institute senior fellow Nick Dranias, launched the Compact for America, an effort to persuade state legislatures to enter into an agreement to support an Article V convention on specific pre-determined conditions which would be contained in an interstate agreement known as The Compact for America.
Both DeMoss and Dranias are gentlemen of a conservative bent. Their principle constitutional goal is to require fiscal responsibility in Washington D.C., a rather typical and widely approved conservative objective.
No doubt they assumed that the John Birch Society, being traditionally and notoriously conservative, would be a natural ally, and they made a vigorous outreach to enlist Birch Society support for the Compact for America.
It was not to be. Despite repeated offers to explain, defend and even alter their initiative, deMoss and Dranias were unable even to schedule an audience with the top decision makers of the Society.
Finally, based on an article printed in the John Birch publication, The New American, deMoss and Dranias concluded that the Society’s position was:
o No matter what rules are written, and no matter that the rules are enforceable as both state and federal law, the governors at the convention will not follow them because they are bought and paid for by special interests and corporations and are actually conspiring to replace the Constitution with a new radical form of government.
o State legislators are too harried and overworked to be able to truly understand and be aware that by joining the CFA, they are actually stooges in the scheme and they are unknowingly enabling the governors to implement their plan to tear up the Constitution and replace it with a radical new form of government.
o State and federal enforcement officials are also part of the scheme to replace the Constitution and will not move to enforce the rules that the governors violate.
o Members of Congress are also part of the scheme and will readily submit the radical proposals to the state legislatures for ratification.
o The state legislators, who were too overworked to know what they are doing to begin with, will then continue their stooge roles and readily accept the new form of government schemed by the governors and Congress when it is presented to them.
That is a pretty harsh indictment. It is difficult to believe that the leadership of the John Birch Society are as paranoiac as Compact for America describes.
Still, the adamant opposition of the Birch Society to any Article V initiative is hard to explain. Certainly the Birch people are not disciples of the status quo. Their web site is replete with complaints about dysfunctional national government.
Among the core principles of the Birch organization is this statement:
The John Birch Society endorses the U.S. Constitution as the foundation of our national government, and works toward educating and activating Americans to abide by the original intent of the Founding Fathers. We seek to awaken a sleeping and apathetic people concerning the designs of those who are working to destroy our constitutional Republic.
It is hard to understand how an organization which “endorses the U.S. Constitution” and would “abide by the original intent of he Founding Fathers” could conclude that anyone who invokes the right to propose amendments which the Founding Fathers gave us is “working to destroy” the Republic.
One explanation is that the Birch Society leaders may have read the Tugwell constitution, and they think that any effort to promote constitutional reform is merely an extension or resurrection of that failed pipedream.
Rexford Tugwell was an academic, educated at the Wharton School of the University of Pennsylvania and at Columbia University. He helped to engineer Franklin Roosevelt’s New Deal. He was the one who introduced the idea of paying farmers not to farm.
Often called “Rex the red,” Tugwell was the quintessential social planner. When named to Roosevelt’s Resettlement Administration Tugwell went about moving urban slum dwellers and unemployed farmers to the suburbs until the courts declared the program unconstitutional.
In the years after World War II, Tugwell worked to create a ‘world constitution.’ Along about 1964, the Ford Foundation ponied up something like 25 million dollars to finance the drafting of a new constitution for our country. Tugwell was the point man, and after 40 drafts by over 100 academics, he announced the result: a constitution for “The New States of America.”
No need to detail it here. Suffice to say that Tugwell’s constitution substitutes ten ‘departments’ for the fifty States, and puts the federal government in charge of every aspect of everybody’s life.
It would be no surprise, then, to learn that the John Birch Society and many other well-meaning American conservatives instantly relate any effort to call an Article V convention to the discredited Tugwell fizzle.
They insist that an Article V convention would be a full blown revision of our nation’s charter, a constitutional convention or “con-con” as they like to call it. Not so. Article V authorizes only a convention to propose amendments to “this constitution.” ‘This constitution’ is the one ratified by the people in 1789.
Of course, no one doubts the right of the Ford Foundation, or Mr. Tugwell and his coterie of academic dreamers to draft a constitution. It’s a free country, after all. Any group in America can get together and propose whatever they want to propose. You can do that in a free country.
But whether a proposal gets laughed at and ignored or whether it makes sense and grows legs depends on what it says and how it is understood and received by the folks who buy stock, join unions, shop at Walmart, attend church and vote.
A constitution is written by and for the people. It is not an esoteric encryption addressed to the intelligentsia. Amendments that are written by the people will be adopted by the people, and they will not be socialist pipedreams.
The John Birch Society has been the major force in discouraging public approval of an Article V convention, and they have been quite successful in persuading conservative legislators.
A key point in their argument is always the assertion that a con con would be a ‘run away’ convention that would rewrite the entire 1787 document, much as the Tugwell people did.
To bolster their point and to counter those who say an Article V convention could only propose amendments to the existing constitution, opponents of the convention often cite a letter from Chief Justice Warren Burger to Phyllis Schlafly.
Here is that letter:
Chief Justice Burger,Retired
I am glad to respond to your inquiry about a proposed Article V Constitutional Convention. I have been asked questions about this topic many times during my news conferences and at college meetings since I became chairman of the Commission on the Bicentennial of the U.S. Constitution, and I have repeatedly replied that such a convention would be a grand waste of time.
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. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress “for the sole and express purpose.”
With George Washington as chairman, they were able to deliberate in total secrecy, with no press coverage and no leaks. A constitutional Convention today would be a free-for-all for special interest groups, television coverage, and press speculation.
Our 1787 Constitution was referred to by several of its authors as a “miracle.” Whatever gain might be hoped for from a new Constitutional Convention could not be worth the risks involved. A new convention could plunge our Nation into constitutional confusion and confrontation at every turn, with no assurance that focus would be on the subjects needing attention. I have discouraged the idea of a Constitutional Convention, and I am glad to see states rescinding their previous resolutions requesting a convention. In these bicentennial years, we should be celebrating its long life, not challenging its very existence. Whatever may need repair in our Constitution can be dealt with by specific amendments.
One of seven children of a Minnesota traveling salesman, Warren Burger grew up on a family farm near St. Paul. He worked his way through college and earned his law degree in night school. Ambitious and focused, he moved up through the ranks of the legal profession, until President Richard Nixon appointed him Chief Justice of the United States Supreme Court in 1969 to succeed Earl Warren.
Despite his humble beginnings, Burger was not a populist. While Nixon and others hoped he would move the Court away from the liberal track espoused by his predecessor, Burger was soon joining the Justices who had voted with Earl Warren.
He had always aspired to be a member of the intellectual elite. As Chief Justice, he achieved that goal. Thus, it was possible that a man who sprung from humble beginnings could ultimately opine that doing what the Founders of our nation enable us to do would be a “waste of time.”
He was quite right, of course in saying that a convention makes its own rules and sets its own agenda. That is what a convention does.
When he wrote that there would be no way to stop a convention once convened, he was playing on the foolish notion that a convention can somehow change the constitution, which of course, it cannot do. Only ratification by three quarters of the states can do that.
His claim that the Philadelphia convention ignored limits set by the continental Congress simply isn’t true. The 1787 convention was charged to revise the system of government, not to amend the Articles of Confederation. Revise means to rewrite, to do over, to rethink and that is just what they did.
Burger’s fear of television and press coverage is consistent with his elitist disposition. To him, a constituent assembly would be a gathering of riff-raff and trouble-makers. He much preferred government by nine cloistered men and women who know what is best for the people.
His letter was curious enough as an epistle by a learned man, but what was most preposterous was the last sentence.
Article V clearly authorizes only specific amendments to this constitution. That is what Article V is for. To oppose an Article V convention and then say we can always adopt specific amendments is patently contradictory.
Still, it must be conceded that there are a great many people who insist that our government is in need of repair, but who incomprehensibly oppose the very means of repair that our Founders gave us.
One of those is Phyllis Schlafly, founder of the Eagle Forum. Now in her ninetieth year, Mrs. Schlafly came reluctantly to the ramparts of those who would defend the constitution from itself. She joins Harvard’s Lawrence Tribe, hardly her philosophical bedmate, in spraying the idea of an Article V convention with a fountain of questions.
What would the convention do? How would it work? Who would make the rules? How would delegates be chosen and by whom?
She summons up the vision of a national partisan nominating convention, with all its ruckus and disorder, and harkens back to the Democratic convention of 2012 and its summary and obviously railroaded disposition of a contested motion about putting a reference to God in the platform.
The unfounded fear of an Article V convention seems particularly to infect civic-minded people who become involved in grass roots efforts to reform our national government. It is an inexplicable phenomenon, since the Founders adopted Article V for the precise purpose of empowering the people of the states to fix the national government when necessary.
The Council on Domestic Relations is one such group. Founded by radio talk show host Jackie Petru and others, its web site chronicles countless hours of efforts to prevent the calling of an Article V convention, despite forceful recitation of the need for reform of our national government.
On February 19, 2009 Rick Santelli, an editor of CNBC Business News, took to the airways to rant against the Homeowners Affordability and Stability Plan, an edict by President Barack Obama designed to reduce people’s mortgage payments. The gist of Santelli’s opinion was that people shouldn’t borrow money they can’t afford to repay. He ended by suggesting that it might be time for Americans to rise up in a symbolic reenactment of the Boston Tea Party.
His video went viral, and became a rallying cry for the creation of the nationwide Tea Party movement. The Tea Party was quickly characterized as the embodiment of the fictional character Howard Beale in the 1976 satirical motion picture, Network. Like Beale, many Tea Party activists seem merely to be shouting, “I’m mad as hell and I’m not going to take it any longer.”
To its credit, of course, the Tea Party had an impact on the Congressional elections, especially in 2012. Still, there is no evidence that the Tea Party as an organization is interested in promoting constitutional reform, despite the conversion of Tea Party leader Mark Meckler to the cause.
So the question remains, Why do conservatives, who are vocally concerned about our dysfunctional government, who rail against unconstitutional actions by all three branches of the federal government, and who work tirelessly to recruit and organize the nation at its grass roots, either ignore efforts to call an Article V convention or actively oppose the idea?
Clearly they perceive a danger that an Article V convention might propose amendments that are contrary to conservative principles and ideals. On this, it must be conceded that, theoretically, they have a point. To the extent that the convention is a step in the process of constitutional amendment, it certainly could propose any kind of an amendment.
But opposing the convention for that reason alone is irresponsible. Just because a Congress might pass unpopular laws is no reason not to have a Congress. Political power, like atomic power or electricity has the capacity to cause damage, but properly used, these sources of energy are useful to mankind.
It is argued, however, that there is unnecessary risk in holding a convention because the problems of our dysfunctional national government can be alleviated in other ways. Elect different people, for example. That route, however, has lost its charm. With the help of Tea Party endorsed candidates, the Republican Party won a majority in the House of Representatives in 2010. There has been no discernable improvement in the nation’s capital.
The John Birch Society, however, says that our problems can easily be solved when the several states begin to exercise what they claim to be the right of nullification.
As generally understood, nullification is an act by a state legislature declaring that a law passed by the Congress and signed by the President will not be valid or obeyed in that state.
Article VI of the United States Constitution says in plain English that laws of the United States made in pursuance of the constitution are the supreme law of the land and the Judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
The John Birch Society and its supporters may argue, of course, that a law which is not constitutional – that is, one not made “in pursuance of the constitution” is not the supreme law of the land, and may be declared not binding. That argument ignores Article III, the Judicial Article, which asserts that the judicial power of the United States is vested in one Supreme Court and the other federal courts, and goes on to say that the judicial power shall extend to all cases arising under the constitution.
In short, the Founders told us that valid federal laws are binding on the states, and the only place to challenge their validity is in a federal court.
That is the legal argument and it makes sense. But there is another, practical and political argument that is even more persuasive. In 1833 South Carolina passed an ordinance of nullification against a federal tariff law. The matter was resolved by a new tariff law, but not before about a month of military preparations both in South Carolina and Washington.
Nullification is the cousin of secession, and it invites the same response from the central government. One may admire the chutzpah of someone like Publius Huldah, the brilliant, anonymous lady constitutional lawyer, who insists that history supports state nullification of unconstitutional federal enactments, but her fine legal reasoning does not obviate the simple truth that a state cannot make a federal law go away.
John Birch Society spokesman Joseph Wolverton insists that James Madison approved of nullification, in support of which he quotes Madison saying this in an 1830 letter to Edward Everett:
And in the event of a failure of every Constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil, than resistance and revolution, there can remain but one resort, the last of all; an appeal from the cancelled obligations of the Constitutional compact, to original rights and the law of self preservation. This is the ultimate ratio under all Governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra constitutional right, to make the appeal.
Certainly no one who has read and admired the Declaration of Independence would quarrel with that statement by Madison. He wasn’t talking about a legal right of nullification. He was talking about a natural right of nullification. He was talking about the same natural right of civil disobedience that vaulted Dr. Martin Luther King into the history of our nation and the hearts of our people.
No free man is obliged by conscience to obey an unjust law, but in a wise and civilized society domestic tranquility is best preserved by peaceful resort to democratic institutions.
Enough blood was spilled on our soil in the mid nineteenth century. Better we debate our differences in convention before we take to the streets.
Much of the talk about nullification stems from public dissatisfaction with the Affordable Health Care Act. The Act’s provisions, permitting individual states to ‘opt out’ of using federally mandated insurance exchanges creates a kind of ersatz nullification which emboldens some to speak of opting out of other onerous federal enactments.
Americans are pragmatic folks. We like quick and easy fixes. Unfortunately, the crisis in governance we face is not conducive to quick fixes. The barnacles that have attached themselves to our ship of state have been a long time coming. They have dug deeply into the skin and bones of our nation.
Nullifying a few unpopular laws does not cure the problem of electing legislators who do not represent the people. You cannot cure lung cancer with cough drops. There are big, systemic problems in our nation’s capital. They grow out of an archaic structure that has been allowed to stagnate for more than two centuries. Guaranteeing a jury trial in twenty-five dollar civil cases is not exactly a provision that has kept pace with the times. Limiting appropriations for the army to two years as required in Article 1 Section 8 is a provision that is simply not observed by Congress. If parts of the constitution can simply be ignored by common agreement or lack of objection, of what possible value is a written constitution?
We don’t need a new constitution, but we need to fix the one we have. Public confidence in a ruling intellectual elite which saunters down the Ivy Corridor from Cambridge Massachusetts to Washington D.C. with pit stops in New Haven and New York, has worn thin. The ‘powers that be,’ the ‘one percent,’ the ‘mainstream media,’ and ‘Wall Street’ are all short hand ways of expressing the alienation of Main Street and the Fly Over space from the Alleghenies to the Rockies.
Aggressive and affirmative opposition to an Article V convention comes mostly from the political Right, which insists that the only thing wrong with our government is that the politicians don’t obey the constitution as it is written.. Opposition from the Left is quite the opposite. The political Left simply doesn’t believe in a written constitution. It doesn’t want a convention because it doesn’t want the constitution of 1787 to be improved.
The high priest of left wing opposition to an Article V convention is Louis Michael Seidman, the Carmack Waterhouse Professor of Constitutional Law at Georgetown University. His 2012 work, entitled On Constitutional Disobedience is a powerful indictment of the United States Constitution. To his credit, Professor Seidman makes no attempt to justify decisions of the United States Supreme Court as interpretations of the Constitution. On the contrary, he candidly admits that many court decisions have no basis in the words of the Constitution.
On December 30, 2012, the New York Times published an essay by Professor Seidman on its Op Ed page. Under the title “Let’s Give Up On The Constitution,” Seidman’s comment was as revolutionary as anything Tom Paine wrote in the eighteenth century. Because it so accurately reveals the mindset of the intellectual elite oligarchy that rules the United States of America in the twenty-first century, I am taking the liberty of quoting Seidman at length:
The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.
In the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.
What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.
The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.
What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.
If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.
If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.
As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.
Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.
No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.
Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)
In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.
Whatever the merits of his other arguments, Seidman’s assertion that the convention of 1787 disobeyed its instruction is flat out wrong. In the first place the Philadelphia assembly was not originally called by Congress, but was organized at the behest of the men who met in Annapolis in 1786 at the “Meeting of Commissioners to Remedy Defects of the Federal Government.”
The resolution of Congress confirming their decision to meet in Philadelphia specified that they were to REVISE the Articles of Confederation. ‘Revise’ means to rewrite, to do over, to reconsider, and that is what the Founders did.
There is another word in the Congressional call for the 1787 convention that opponents of an Article V convention seem to ignore. Let’s look at the resolution again:
Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.
The Founders knew what a constitution is. They had all been involved in drafting and adopting constitutions in their home states. They knew that a constitution is a charter of government, in which the sovereign people give their consent to be governed in a certain way by officials chosen in a certain way. They also knew that the Articles of Confederation were not a constitution. The Articles were a “firm league of friendship” among thirteen sovereign states. The Articles of Confederation were simply a treaty, like the United Nations or NATO. It was an agreement among governments, not an agreement of the people.
The Philadelphia convention was expected to rewrite the arrangement among the thirteen states in such a way as to be a true constitution. The preamble of the Articles of Confederation begins with “we the undersigned Delegates of the States.” It then says that the name of the confederation is “The United States of America.”
As we have seen, In 1787 the “United States of America” was not a nation. It had no “people.” It had no citizens. Only the individual states had people, or citizens.
The preamble of the constitution written in Philadelphia begins with these words, “We the people of the United States, in order to form a more perfect union…”
They did not say “We the people of the United States of America” because the the United States of America was not then a nation, and it did not have “people.”
The delegates were not in Philadelphia to represent the governments of the thirteen states, they were there to act on behalf of the people of the thirteen states.
It is significant that the preamble ends with the words “ordain and establish this constitution for the United States of America.” They were saying that the entity known as the United States of America was now to have a constitution, that is a charter from the people rather than a mere agreement among governments.
The 1787 constitution created a nation. It is a peculiar, unique kind of a nation, in which the people have dual citizenship. They are citizens of the states and they are citizens of the nation. The nation known as ‘The United States of America’ was created by the people of the several states. It can only be changed by the people of the several states. It follows that an Article V convention is a convention of the people of the states.
There is one final argument that needs to be made on this subject. The attendees at the Philadelphia convention included some of the most distinguished and knowledgeable leaders of the day: George Washington, James Madison, Alexander Hamilton among them. They were good citizens and true patriots. It is obvious that they were of the opinion that it was right and proper for them to do what they did. To insist that the convention was a rogue gathering that ignored its rightful obligation is to suggest that these good men were consciously disregarding instructions.
Despite the fact that Professor Seidman makes the same erroneous claim about the intended purpose of the 1787 convention as does John Birch Society editor Joseph Wolverton, he comes from a very different perspective from that of the John Birch Society’s writer. Wolverton and his colleagues are unhappy about the way our government works. They believe that the Constitution is being ignored in Washington, D.C. They want the Constitution to be obeyed according to its plain meaning, and they believe that such faithful fulfillment of the oaths taken by our nation’s elected officials will essentially solve all of our problems.
Seidman and his ilk however, simply think that we don’t need a written constitution. England doesn’t have one. England has tradition, and, in the view of Professor Seidman, tradition is good enough. If Seidman has any complaints about how things are done in Washington D.C. and around the country, his preferred solution is simply more legislation and more activist Supreme Court decisions.
In short, opposition to an Article V convention from the Left essentially maintains that we don’t need an amendatory convention because we don’t need a written constitution.
James Madison famously observed that if men were angels, no government would be necessary. Perhaps it is also true that if all men were graduates of the Harvard Law School, no constitution would be necessary, either.
The truth is that we are neither angels nor Harvard graduates. We are a nation of people whose forebears believed that a written constitution is the only rational option to the bloody historic cycle from anarchy to dictatorship. Being the product of imperfect human beings, our system of government is not, and never will be perfect. But we must keep trying to make it better. To abandon the magnificent experiment after 230 years would be tragic madness.
Continue reading Chapter Three: AYES AND NAYS