Thread: The Development of Article V, U.S. Constitution, at the Federal Convention of 1787

The Development of Article V, U.S. Constitution, at the Federal Convention of 1787

Published on: August 23, 2014

Page numbers refer to the hard bound ed. of the Journal of the Federal Convention Kept by James Madison (ed. by E.H. Scott; R. R. Donnelly & Sons Co., Chicago, 1893). Hyperlinks to an online edition are also provided.

Summary of the Dispute during 1787

The dispute was whether Congress would have any power over the amendment process:

• Mr. Randolph & Geo. Mason wanted States to be able to make amendments without the assent of Congress (May 29, June 11) and in a manner which did not depend on Congress (Sep. 15, 1787).
• Several questioned the propriety of making Congress’ assent to amendments unnecessary (June 11, 1787).
• Gov. Morris, Hamilton & Madison thought Congress ought to be able to propose amendments (Aug 30, Sep. 10, 1787).

Some delegates spoke of a “convention” in connection with amendments:

• With Congress calling the convention (Aug. 6); whenever Congress pleased (Aug. 30, 1787).
• Mr. Gerry worried about States obtaining a convention and binding the Union to innovations which subverted State Constitutions (Sep. 10, 1787).
• Mr. Hamilton thought Congress should have power to call a convention to propose amendments to correct defects which would probably appear in the Constitution (Sep. 10, 1787).
• Mr. Madison remarked on the vagueness of the terms, “call a Convention for the purpose”: “How was a Convention to be formed? – by what rule decide? – what the force of its acts?” (Sep. 10); and “difficulties might arise as to the form, the quorum, &c., which in constitutional regulations ought to be as much as possible avoided” (Sep. 15, 1787).

The final version of Article V provides for two methods of proposing amendments to the Constitution: Congress either:

• Proposes the amendments; or
• “Calls” a convention when the Legislatures of 2/3 of the States apply for it. [Now see Art. I, §8, last clause.]

From James Madison’s Journal

May 29, 1787: The work of the Convention begins. Mr. Randolph presented 15 resolutions to “open the great subject of their mission” (p 59). Randolph’s 13^th resolution was:

“Resolved, that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto” (p 63).

June 5, 1787: Randolph’s 13^th resolution is taken up (p 110): Mr. Pinckney “doubted the propriety or necessity of it.” Mr. Gerry favored it, pointing out that the “novelty and difficulty” of what they were doing required periodical revision; that the prospect of such a revision would give intermediate stability to the government; etc. The matter was postponed for further consideration.

June 11, 1787: Randolph’s 13^th resolution for amending the national Constitution, hereafter, without consent of the national Legislature, was considered (p 149): Several members did not see the necessity of the Resolution, nor the propriety of making the consent of the National Legislature unnecessary.
Geo. Mason urged the necessity of such a provision: Amendments will be necessary; it is best to provide for them “in an easy, regular and constitutional way, than to trust to chance and violence. It would be improper to require the consent of the National Legislature, because they may abuse their power, and refuse their assent on that very account.” Mr. Randolph agreed.
The words, “without requiring the consent of the National Legislature,” were postponed. The other provision in the clause passed unanimously.

June 13, 1787: The Committee of the Whole presented a revised set of resolutions. Randolph’s 13^th resolution was renumbered as the 17^th resolution, and now read:
“Resolved, that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary” (p 162).

June 23, 1787: The 17^th resolution was agreed to unanimously (p 409).

August 6, 1787: The Report of the Committee of Detail presented a draft Constitution. Article 19 read:

“On the application of the Legislatures of two-thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose” (p 461).

August 30, 1787: Article 19 was taken up. Mr. Gov. Morris suggested that “the Legislature should be left at liberty to call a Convention whenever they pleased” (p 640). The Article was agreed to unanimously.

September 10, 1787: Mr. Gerry moved to reconsider Art.19 [see Aug. 6 above] (p 692).
Mr. Gerry said the Constitution they were writing would be paramount to the State Constitutions. It follows from Art.19 that two-thirds of the States “may obtain a convention, a majority of which can bind the Union to innovations that may subvert the State Constitutions altogether”.
Mr. Hamilton seconded the motion for reconsideration, but for a different reason than Mr. Gerry. An easy mode should be established for supplying defects which will probably appear in the new system. The mode proposed was not adequate. State Legislatures will apply for amendments to increase their own powers. The National Legislature will be the first to perceive, and will be most sensible to, the necessity of amendments; and ought also to be empowered, whenever two-thirds of each branch [of the Congress] should concur, to call a Convention. There is no danger in giving this power, as the people would finally decide.

Mr. Madison remarked on the vagueness of the terms, “call a Convention for the purpose”, as sufficient reason for reconsidering the article. “How was a Convention to be formed? – by what rule decide? – what the force of its acts?” (p 693).
On the motion of Mr. Gerry to reconsider: 9 States “Yes”; 1 State “No”; and 1 State divided.

Mr. Sherman moved to add the following to Article 19:

“or the Legislature [Congress] may propose amendments to the several States for their approbation; but no amendments shall be binding until consented to by the several States.”

Mr. Wilson moved to insert: “three-fourths of” before “the several States”; this was agreed to unanimously.

Mr. Madison then moved to postpone consideration of the above amended proposition, in order to take up the following proposed revision:

“The Legislature of the United States, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three-fourths, at least, of the Legislatures of the several States, or by conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the United States.”

Mr. Hamilton seconded Mr. Madison’s motion.

Mr. Rutledge could not agree to give a power by which the articles relating to slaves might be altered by non-slave States. So this was added to Mr. Madison’s proposal:
“provided that no amendments, which may be made prior to the year 1808 shall in any manner affect the fourth and fifth sections of the seventh article.”

On Madison’s proposed revision, as amended by Rutledge: 9 States “Yes”; 1 State “No”; and 1 State divided.

September 12, 1787: The Committee of Revision presented a new draft of the Constitution. Article 19 was renumbered asArticle V:

“The Congress, whenever two-thirds of both Houses shall deem necessary, or on the application of two-thirds of the Legislatures of the several States, shall propose amendments to this Constitution; which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three-fourths at least of the Legislatures of the several States, or by conventions in three-fourths thereof, as the one of the other mode of ratification may be proposed by the Congress: Provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the __ and __ sections of the ___ article” (p 712).

September 15, 1787: Article V was taken up (p 736).
Mr. Sherman expressed fears that three-fourths of the States might be brought to do things fatal to other States; and wanted more protection for slave States (p 737).
Geo. Mason said the plan of amending the Constitution was “exceptionable and dangerous”. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind, would ever be obtained by the people, if the government should become oppressive.
Mr. Gov. Morris and Mr. Gerry moved to amend the Article so as to require a Convention on application of two-thirds of the States.
Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the States, as to call a Convention on the like application. He saw no objection, however, against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum, &c., which in constitutional regulations ought to be as much as possible avoided.

The motion of Gov. Morris and Mr. Gerry was agreed to unanimously (p 73.
Mr. Gov. Morris moved to annex a proviso “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” This motion was agreed to without debate, no one opposed it.
On the question to agree to the Constitution, as amended, all the States voted “yes”. The Constitution was ordered to be engrossed, and the house adjourned.

September 17, 1787: The Constitution was signed, as finally amended (p 74. Article V reads:

“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; Provided, that no amendment which may be made prior to the year 1808, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” (p 761).

Mr. Randolph, Geo. Mason, and Mr. Gerry did not sign the Constitution.

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Also more on Article V and the constitutional Convention

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We Don’t Need an Article V Convention to “Clarify” Our Constitution!


Publius Huldah September 8, 2014


Those pushing for the so-called "convention of states" ¹ say we must amend the Constitution because the people in Washington "don't understand it."

Rubbish!

Our Constitution is so simple that Alexander Hamilton expected us to be "enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority"; and he said the people are "the natural guardians of the Constitution" (Federalist No. 16, next to last para).
Well then, if our Constitution is something The People are expected to know and enforce; is it plausible to assert that the Representatives we send to Washington – and even supreme Court Justices – are incapable of understanding it?
Justices on the supreme Court have been perverting our Constitution for a long time. Do they do this because they are so stupid they don't understand our Constitution? Of course not! They violate our Constitution because they claim the right to impose their own personal views on the rest of us.
As every American over the age of 10 should know, the powers our federal Constitution delegates to Congress and the President are limited & defined – they are "enumerated."
So! Progressives on the supreme Court had to find a way to get around the limitations imposed by the enumerated powers. And they did it by perverting three clauses: the "interstate commerce", "general welfare", and "necessary and proper" clauses.
However, a quick look in The Federalist Papers shows the original intents of these clauses. We don't need a convention to draft amendments showing what these clauses mean – just look it up in The Federalist! But! You don't have to – I've already done it – and here it is: ²
The "interstate commerce" clause (Art. I, §8, cl. 3)

Webster's 1828 Dictionary says "commerce" is the buying and selling of goods.
In Federalist No. 22 (4^th para) and Federalist No. 42 (9^th & 10^th paras), Hamilton and Madison explain the primary purpose of the clause: To prohibit the States from imposing taxes & tolls on merchandize as it is transported through the States for purposes of buying and selling.
The "general welfare" clause (Preamble & Art. I, §8, cl. 1)

Webster's 1828 Dictionary defines "welfare" as:

"2. Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government; applied to states."

It has nothing to do with handouts, public relief, or the feds doing whatever they think is a good idea.
In Federalist No. 41 (last 4 paras), Madison points out that Art. I, § 8, employs "general terms" which are "immediately" followed by the "enumeration of particular powers" which "explain and qualify", by a "recital of particulars", the "general phrase." It is "error" to focus on "general expressions" and disregard "the specifications which ascertain and limit their import"; thus, to argue that the general expression provides an unlimited power is "an absurdity."
So yes! The powers of Congress over the Country at Large really are limited primarily to those few listed at Art. I, §8, clauses 3-16.

Our Framers understood that "general Welfare", i.e., the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government, was possible only with a federal government of strictly limited powers. [Let that sink in.]
The "necessary and proper" clause (Art. I, §8, last clause)

This clause delegates to Congress power to pass all laws necessary and proper to execute its declared powers (Federalist No. 29, 4^th para); "the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article"; a power to do something must be a power to pass all laws necessary and proper for the execution of that power, and thus the clause is "perfectly harmless", a "tautology or redundancy" (Federalist No. 33, 2^nd & 3^rd paras). Madison writes to the same effect in (Federalist No. 44, under his discussion of the SIXTH class of powers).
So the clause permits the execution of powers already delegated and enumerated in the Constitution. No additional substantive powers are granted by the clause.
Learn the enumerated powers delegated to Congress & to the President. With our Votes & Nullification of unconstitutional acts, let's enforce the Constitution we already have. Don't let others change or replace it! PH
Endnotes:
¹ The term, "convention of states", is deliberately deceptive. The only convention for proposing amendments is the one at Article V of our Constitution – and Congress has the power to "call" it. And since Article I, Sec. 8, last clause, vests in Congress all powers "necessary and proper" to carry out its power to "call" the convention, Congress decides all organizational issues, such as, the number and selection process for delegates.
But once the delegates (whoever they turn out to be) are seated, neither Congress nor the States have any control over them. The delegates can do whatever they want. They can propose a new Constitution with a new method of ratification. Here are two Constitutions already waiting in the wings: The "Constitution for the New Socialist Republic in North America", which you can read about from their own website HEREand from JBS HERE; or the "Constitution for the Newstates of America",which you can read HERE. Do you think that any of the delegates (remember, you have no idea who they will be), can be bribed to introduce and vote for one of these proposed constitutions?
Disabuse yourself of the false notion that "the States have to ratify anything the convention does". That is the second biggest lie ever told: The proposed "Constitution for the Newstates of America" is ratified by a Referendum called by the President. The States, as political bodies, never get the opportunity to reject it – they are dissolved and replaced by regions answerable directly to the new national government.
The ONLY precedent we have for an "amendments convention" is the federal convention of 1787 which drafted & proposed our existing Constitution.
HERE is the Resolution, made by the Continental Congress on February 21, 1787 (p 71-74), to call a convention to be held at Philadelphia:

"…for the sole and express purpose of revising the Articles of Confederation".

The delegates ignored their instructions and wrote an entirely new Constitution – the one we now have. Furthermore, whereas Article XIII of the Articles of Confederation (LINK) required all of the then 13 States to ratify Amendments to the Articles; Article VII of the new Constitution required only 9 of the 13 States to ratify the new Constitution.
Do you see?
² Our People don't have a clue about what these 3 clauses mean. So YOU learn the original intent. On social media, start teaching that original intent to The People. Help turn on the lights in their minds.
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"The government is broken and we have too many Fox's guarding the Hen House". We can not trust these people to get near our Constitution they are abusing it every day with out changing it, and they are doing this illegally. We shall never give them legal right to change a "litter box" never mind change the Constitution .."Throw Them All Out"!!!!

Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, & Jefferson - Sons of Liberty Media
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Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, & Jefferson

During August 2010, the People of The State of Missouri approved Proposition C and nullified key parts of “Obamacare.” As a matter of constitutional principle, may the People of the States lawfully do this? Or must they submit to every law made by Congress whether it is constitutional or not? Are federal judges the final authority?

I will prove that the States have the Right and the Duty to nullify unconstitutional acts of Congress. The only real question is whether Americans have the Will to reclaim our Constitutional Republic & the Rule of Law, or whether they will submit to the rulership of men who “don’t care” what the Constitution says, and who see Obamacare as a way “to control the people”.

Congress’ Powers are Enumerated
1. The U.S. Constitution, which created the federal government, permits Congress to make laws only on those few objects which are listed in the Constitution. The objects on which Congress has authority to make laws applicable throughout our Country are itemized at Art. I, Sec. 8, clauses 1-16 (and in a few of the Amendments).
Since the Federalist Papers are the most authoritative commentary on the true meaning of the Constitution, ¹ let us see what those Papers say about the extent of Congress’ legislative powers. In Federalist No. 83 (7th para), Alexander Hamilton says:
The plan of the convention declares that the power of Congress …shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. [boldface mine]
In Federalist No. 39 (3rd para from end), James Madison says:
…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects…[emphasis added]
Our Framers were emphatic that ours is a Constitution of enumerated powers only. In Federalist No. 45 (9th para), Madison says:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…[emphasis mine] ³
Do you see? If the Constitution doesn’t delegate a power to Congress by listing it in the Constitution, Congress doesn’t have that power. It is reserved by the States or the People.
Congress Usurps Power when it makes Laws outside its Enumerated Powers – and such pretended Laws are VOID & NOT VALID.

2. Our Framers understood that civil governments seek to expand power at the expense of the People. And when they do so, their acts are VOID and INVALID! Thus, in Federalist No. 33 (next to last para), Hamilton says:
…But it will not follow …that acts of the large society [the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [caps are Hamilton's; other emphasis mine]
In the last paragraph of No. 33, Hamilton says a law made by Congress which is not authorized by the Constitution,
…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution… [emphasis mine]
In Federalist No. 78 (10th para), Hamilton says:
…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. [emphasis mine]
Nothing in Art. I, Sec. 8, or elsewhere in the Constitution, authorizes Congress to pass Obamacare! “Medical care” is not an enumerated power. Obamacare is unconstitutional as outside the scope of the legislative powers granted to Congress. ⁴
Furthermore, the Tenth Amendment forbids Congress to pass Obamacare: When a power is not delegated to the federal government by the Constitution, that power is reserved to the States or to the People. Only the States or the People have power over medical care!
So! Congress passed Obamacare without any constitutional authority to do so, and in violation of the Tenth Amendment. Hence, as Hamilton shows us, Obamacare is “void” and not “valid”. It is an act “of usurpation, and will deserve to be treated as such.”
Hamilton, Madison & Thomas Jefferson show us that Nullification is the Answer.

3. Hamilton shows in Federalist No. 28 (7th para) that if the federal government invades the rights of the People, they can use the State government as the instrument of redress:
…in a confederacy the people … may be said to be … the masters of their own fate. Power being almost always the rival of power, the general [federal] government will … stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress…. [emphasis added]
So! When the People of the State of Missouri approved Proposition C nullifying Obamacare, they properly made use of their State government as “the instrument of redress” against the usurpations of Congress & the Executive Branch.
And since State officials and many Citizens have taken the Oath to support the U.S. Constitution (Art. VI, clause 2), it is their SWORN DUTY to nullify – to refuse to obey – unconstitutional and pretended federal “laws”, such as Obamacare.
Nullification by States of unconstitutional federal laws is not new. Our beloved Thomas Jefferson (Author of the Declaration of Independence) & James Madison (Father of the U.S. Constitution) show us precisely what States are honor bound to do when Congress makes an unconstitutional law. During 1798, in response to Congress’ passage of the Alien and Sedition Acts, the Kentucky and Virginia Legislatures passed Resolutions declaring those Acts unconstitutional as outside the enumerated powers granted to Congress, and as in violation of the Tenth Amendment. In these Resolutions, Kentucky and Virginia resolved not to abide by the federal acts. Jefferson wrote The Kentucky Resolutions, and Madison wrote The Virginia Resolution.
⁵
The Kentucky & Virginia Resolutions are masterpieces of constitutional analysis. Study them! States may use them as models for their own Resolutions nullifying the myriad of unconstitutional “laws” which have spewed forth from Congress in recent decades.
The Framers did NOT say States should file Lawsuits and let Federal Judges decide!

4. Think: Why would the States, which formed a Federation for the limited purposes enumerated in Art. I, Sec. 8; ask one branch of the federal government (judiciary) to opine on whether a “law” approved by the two other branches (legislative & executive), exceeds the enumerated powers of Congress and encroaches on the reserved powers of the States and the People (10th Amendment)? All three branches of the federal government have been unified against The Constitution, the States, and the People for a very long time! Why would States put themselves in the position of supplicants to a Court which has already shown itself to be contemptuous of the Constitution, and of the States’ and The Peoples’ reserved powers?
And further: Can we not see for ourselves that Obamacare is outside the scope of the Legislative Powers granted to Congress in the Constitution, and that it violates the Tenth Amendment? Our Framers certainly did not advocate running to federal judges to let them decide such issues! No, our Framers were men who had guts & backbone and understood the Constitution! So they nullified unconstitutional acts of Congress. ⁶
Will the American People pass the Test?

5. Will the States and the People surrender to the likes of former DNC Chairman Howard Dean who “doesn’t care” if the stuff passed by Congress is unconstitutional? To Democrat Congressman John Dingle who sees Obamacare as a means “to control the people”? Or will The People and the States man up and defend our Constitution?
We have instructions from the Author of the Declaration of Independence, the Father of the Constitution, and the Author of most of the Federalist Papers. They explain what our Constitution really means, and tell us what we need to do when the federal government usurps powers. Listen to them!
They are the highest Authority on the true meaning of our Constitution.
And do not be swept away by rage and lust for revenge. Do not become the murderous, unthinking red-capped mob of the French Revolution.
Let us pray that our eyes be opened, that we listen to the words of wisdom from our Framers, that our spines be stiffened, and that we work for a peaceful political resolution of the dreadful problems facing us.
The federal courts have refused to enforce the Constitution. Congress has failed to impeach & remove usurping federal judges – it has failed to be the “check” on the federal courts. Therefore, WE must enforce the Constitution by means of nullification. WE must be the final “check” on the courts. Study & learn so that you are qualified to do this.
Endnotes:
¹ At a meeting attended by Thomas Jefferson & James Madison of the Board of Visitors of the University of Virginia on March 4, 1825, the following resolution selecting texts for the Law school, was passed:
…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independence, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (Page 83) [emphasis added]
² See also Federalist No. 14 (8th para) “…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects…”
Federalist No. 27 (last para) “…It merits particular attention in this place, that the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [caps in original]
³ Medicare, Medicaid, social security, etc., are also unconstitutional as outside the scope of the legislative powers granted to Congress. And the programs can’t work! As more & more people seek to live at other peoples’ expense, the system eventually collapses. That collapse is upon us.
⁴ Jefferson calls it “nullification”; Madison calls it “interposition”. In “interposition”, the State “interposes” – steps in between – an usurping federal government and The People. (Webster’s 1828 Dictionary.) The result is really the same.
⁵ Furthermore, the Supreme Court is NOT the ultimate authority on the meaning of the Constitution! Hamilton says federal judges may be impeached for usurpations (Federalist No. 81, 8th para); the People are “the natural guardians of the Constitution” as against federal judges “embarked in a conspiracy with the legislature”; and the People are to become “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.“(Federalist No.16, next to last para).

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Published on Oct 7, 2014
Dan Happel presents his outstanding Agenda 21 outline in Kalispell, MT

Alexander's Column Constitutional Convention? Caveat Emptor The Law of Unintended Consequences By Mark Alexander · October 15, 2014 "The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all." --George Washington (1796) The "law of unintended consequences" is an idiomatic admonition regarding the manipulation of complex systems. The notion of unintentional consequence has its origin with 18th-century political economist Adam Smith and the Scottish Enlightenment. In the present, it is used more in rebuttal to the hubristic notion that humans are so brilliant and possess sufficient discernment about complex systems that we can predict outcomes with great accuracy. It is similar to Murphy's Law -- "Anything that can go wrong will go wrong" -- except it is not asserting the absolute. 20th-century sociologist Robert Merton noted three primary factors contributing to unanticipated consequences: First, incomplete analysis because it is impossible to anticipate all variables; second, errors in analysis of what is known about the problem; third, immediate interests overriding long-term interests. Our nation is besieged by unintended consequences. Most notably, the 2008 election of a charismatic "community organizer" peddling a "hope and change" mantra. It is now painfully clear, after the re-election of Barack Obama, that his mantra has resulted in a plague of pessimism and an atrocious fundamental transformation of America. But not all unanticipated consequences are bad. Shortly after Obama's first election, a grassroots groundswell of concern over our government's abject disregard for the Constitution emerged. That concern galvanized in the Tea Party Movement, a broad coalition of Americans from all walks of life with a common goal of restoring Constitutional Rule of Law and the Essential Liberty enshrined therein. Fortunately, this movement is more ideological than political. While the media labels some constitutional constructionists as "Tea Party candidates," the underlying movement defies traditional political party labels -- and this constitutional coalition is alive and well. Beyond efforts to restore the plain language authority of our Constitution by way of the ballot box, several compelling arguments for constitutional amendments have emerged in an effort to circumvent restoration by way of the bullet box. There are two proscriptions for amending our Constitution. These are specified in Article V as ratified. "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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." In other words, to amend our Constitution, two-thirds of the House and Senate must adopt an amendment or two-thirds of state legislatures (34) must request Congress convene an Article V Convention to consider an amendment. Then, that amendment must be affirmed by either three-fourths (3 of state legislatures or state conventions. Since our Constitution was ratified and became operational on March 4, 1789, there have been approximately 11,600 amendment proposals, of which 33 were adopted by Congress and sent to the states for ratification. Of those, 26 amendments were ratified by state legislatures and one, the 21st Amendment, which repealed the 18th Amendment (prohibition on alcohol), was ratified by state conventions. The most significant call on Congress to convene an Article V Convention in recent history was Ronald Reagan's proposal for a Balanced Budget Amendment (as currently required by every state constitution but Vermont). On March 26, 2014, Michigan's legislature became the 22nd applying to Congress for an Article V convention seeking a Balanced Budget Amendment. What makes the Michigan request notable is that there already are 12 applications from other states for conventions to consider a Balanced Budget Amendment. All were rescinded -- most because it was thought that the Gramm-Rudman-Hollings Act negated the need for a Balanced Budget Amendment. Of course, Congress created as many bypasses around Gramm-Rudman as they have around the Constitution. But there is a debate as to whether a state may rescind its Article V application. Rep. Duncan Hunter (R-CA) has called on Speaker John Boehner (R-OH) to seek a legal opinion on whether that threshold has been met: "With the decision by Michigan lawmakers, it is important that the House -- and those of us who support a Balanced Budget Amendment -- determine whether the necessary number of states have acted and what the appropriate role of Congress should be in this case." Indeed, that answer is being sought by quite a few constitutional scholars who are advocates of Article V Conventions, including Lawrence Lessig, Sanford Levinson, Larry Sabato, Jonathan Turley and Mark Levin. Levin, who distributes our Essential Liberty Guides at conservative conferences, has generated substantial interest and support for 11 amendments he outlined in his book, "The Liberty Amendments: Restoring the American Republic." He is calling for a national dialogue on these amendments, with the ultimate objective of stopping unmitigated and unlawful violations of our Constitution by the central government. Conservative political analyst George Will is an advocate of another measure, The Compact for America, a Goldwater Institute initiative which, according to Will, "would use the Constitution’s Article V to move the nation back toward the limited government the Constitution’s Framers thought their document guaranteed." The Compact is a renewed federal budget containment measure, and as Will concludes, "In the 85th and final of the Federalist Papers written to persuade Americans wary of centralized power to ratify the Constitution, Alexander Hamilton said: 'We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.' States would be the prime movers of, and would be substantially empowered by, the institute’s amendment-by-compact plan." While we await a legal determination from Boehner on the question of whether the 34-state threshold for an Article V Convention has been met, there are two important considerations about which approach should be taken to enact amendments. First, it is not clear whether the scope of amendments to be considered by a convention, once convened, can be limited. Could those advocating statist tyranny commandeer a convention? Recall, if you will, that on February 21, 1787, when the Congress of the Confederation endorsed a measure to revise the Articles of Confederation, it summoned state delegates "for the sole and express purpose of revising the Articles of Confederation" in ways that, when approved by Congress and the states, would "render the federal constitution adequate to the exigencies of government and the preservation of the Union." Indeed, Article 13 of the Articles of Confederation set forth that it was "perpetual" until any alteration was "agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State." But the delegates to the original Constitutional Convention determined that the Articles were not workable and proposed an entirely new Constitution, in effect discarding the Articles of Confederation without objection from the states. Fortunately, our Framers' objective was to codify Liberty as "endowed by our creator," and as specified in our Declaration of Independence. They believed that all who followed in the executive, legislative and judicial branches of government, and those duly authorized thereunder, would abide by their sacred oaths to Support and Defend" our Constitution. According to Alexander Hamilton, "[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes -- rejecting all changes but through the channel itself provides for amendments." If that legal and moral obligation had been compliantly observed, this column would not even be necessary. So what is the risk that such lawlessness would hijack an Article V Convention, especially since, as James Madison questioned in his notes on Article V ambiguities, "How was a Convention to be formed? By what rule decide? What the force of its acts?" None of those questions are answered in the Constitution. Federalist Society constitutional expert Michael Stokes Paulsen, Distinguished University Chair and Professor at St. Thomas School of Law, argues that such a convention would have the "power to propose anything it sees fit." My colleague, Heritage Foundation constitutional scholar Matt Spaulding, notes, "The largest question is whether an amendments convention can be limited to specific amendments or even topics. The pro-convention argument assumes that the power to limit the convention is inherent in the power to call the convention in the first place. I’m not so sure that follows: The text says that upon application of the states Congress 'shall call a Convention for proposing Amendments,' not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention). Indeed, it is not at all clear as a matter of constitutional construction (and doubtful in principle) that the power of two-thirds of the states to issue applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution." Thus, given the persuasive power of the Leftmedia and Democratic Party conglomerate, their ability to advance populist measures for amendment consideration could spell the end of what remains of our Constitution. But the second consideration about which of the two approaches should be taken to enact amendments is the overarching question of whether either approach will matter in the end. For as John Adams noted, "We have no government armed with power capable of contending with human passions unbridled by morality and religion... Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." If the executive, legislative and judicial branches of the central government do not abide by existing constitutional constraints, why would anyone believe they would abide by additional constraints in the future? In either case, caveat emptor. (Note: In an upcoming column, I will reintroduce a third measure, the establishment of a Constitutional Confederation of the States, to restore constitutional integrity, which affirms the Constitution as ratified, rather than seeks to amend it further.) Pro Deo et Constitutione -- Libertas aut Mors Semper Fortis Vigilate Paratus et Fidelis

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