Convention of States: don’t!

The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.
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Herewith the first installment in the new Trump Elevator Pitch series – open letters to President-elect Donald J. Trump. Each pitch will discuss an issue the country faces, and suggest – or recommend against – a course of action. Today, CNAV urges Mr. Trump not to do something. Do not – we repeat, do not – ask State legislatures to apply for a Convention of States to change the Constitution. Such a convention would not merely change the Constitution, but would replace it instead.

Elevator what?

The term elevator pitch comes from the field of (off-line) social networking. Classically, it means: you bump into someone important while standing in an elevator. Now you have the perfect opportunity to sell him something. What do you say?!? Talk fast – the elevator is coming to his stop!

Elevator pitches obey simple rules: identify the goal, and show how to reach it. And by the goal, one does not mean implementing a policy, or appointing someone. It means what you wish to accomplish by doing these things. Once you know your goal, the real finish line, you can plot a strategy to reach it.

The goal

So what goal do we wish to serve? In this case, to restore Constitutional and republican government. That means: follow the Constitution, and go back to a multi-level government where each level governs the one below and expects that level to govern the level next below that. A republican (small r) government does not micromanage people’s lives at the top level. Even the leaders of the French Republic don’t understand this. Maybe they never understood it. Benjamin Franklin did.

A Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”

We have lost it. So we want it back. To get it back, different activists have proposed concrete reforms they wish to see. The best:

  • Limit the terms of office of Senators and congressmen, as we limit the terms of Presidents.
  • Restore the power of State legislatures to choose Senators directly.
  • Require that federal budgets balance, the same as State budgets must balance.
  • Remove the power of Congress to tax “incomes, from whatever source…, without apportionment among the States, and without regard to any census or enumeration.”
  • Limit the scope of government at the federal, or top, level.

A group calling itself the Convention of States Project thinks it can take these steps by going around Congress. They wish to invoke the second method in Article V of the Constitution. Article V reads in relevant part:

The Congress…on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments…

But would this achieve the goal?

Arguments for a Convention of States

Those who want a Convention of States, argue that Congress will never propose Constitutional amendments to limit their powers. The Members can’t resist raking in the income, running up the tab, and micromanaging the economy. They make money, for themselves or only to stay in office, by doing favors for people who have money. How can they do these favors without the power to tax, borrow or spend? And why should they do these favors for anyone if they can’t stay in office forever? They risk their successors undoing all those favors!

Judicial tyranny

Aside from Congressional self-dealing and favor trading, Convention of States advocates want to rein in the Supreme Court. They have seen Supreme Courts twist the Constitution beyond all meaning. In 1818, Thomas Jefferson ruefully observed to his friend Spencer Roane:

In denying the right [the judiciary] usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se. For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation.

For experience has already shown that the impeachment it has provided is not even a scarecrow; that such opinions as the one you combat, sent cautiously out, as you observe also, by detachment, not belonging to the case often, but sought for out of it, as if to rally the public opinion beforehand to their views, and to indicate the line they are to walk in, have been so quietly passed over as never to have excited animadversion, even in a speech of any one of the body entrusted with impeachment. The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.

Note: for felo de se, read “suicide.”

Accept responsibility

Instead, Jefferson held that each branch of government held the authority to decide what is Constitutional and what is not. Furthermore, each branch must take responsibility to act, and for the appropriateness of its acts. The Convention of States advocates correctly observe that Congress have abdicated its responsibility. In addition, the outgoing President has exceeded his authority in more instances than one can count in this space. So the Convention of States advocates want to bypass Congress, the President, and the courts.

What makes a Convention of States dangerous

But those advocates either don’t realize, or won’t tell you, how dangerous a Convention of States can be. In fact, the Constitution itself came about through a Convention of States. The activist Publius Huldah spoke to CNAV on this point before speaking to a crowd of citizens at the American Legion post in Colonial Heights, Virginia, on 29 October 2016. She pointed out the convention in Philadelphia began with a mandate to amend the Articles of Confederation. But the delegates, on arriving, promptly:

  1. Elected their officers,
  2. Moved to keep their proceedings secret, and then
  3. Moved to violate completely their instructions.

In short, they sought, not to amend the Articles, but to replace them.

Any painter, sculptor, or metalworker could have told the people what would happen. The product of any creative process, cannot survive a second exposure to that process. So what do these advocates propose? They ask the legislatures to apply to Congress for “a convention for proposing amendments.” They forget, or again won’t tell you, how the Constitution came about.

And why wouldn’t delegates to such a convention violate their instructions? Delegates to any convention for “amending” a Constitution are, ipso facto, plenipotentiary. That word plenipotentiary comes from two Latin words: plenus full and possum I can. Huldah used that word to say those delegates had full power to do anything they wanted. The Declaration of Independence vests plenipotentiary powers in delegates to such a Convention. To quote:

Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

But what about ratification?

What about it? The Articles of Confederation called for every State to ratify unanimously any and all amendments. But the Constitution made its own ratification rule. Nine States could ratify, and the Constitution would apply among those nine. In fact, after nine States ratified, the Federalists lobbied Virginia and New York to ratify also. They did. In so doing, they set the precedent for one Constitution to supplant another.

What is wrong with specific proposals?

A Convention of States would destroy the Constitution. But the Convention of States Project proposes specific changes one can find no more acceptable, without that danger.

The parental rights amendment

Mike Farris proposes that federal courts may not rule on matters of family life, except to serve compelling Federal interests. This begs an obvious question. What interest of any kind can the federal government have in such matters? In fact, the federal government has no such interest, and no such authority. Article I, Section 8 lists the powers of Congress. Nowhere does that section list the power to decide family matters. So even to speak of compelling interests, legitimizes a clear excession of federal authority.1

The liberty amendments

Mark Levin proposes some amendment of his own. First he wants to “limit” the federal bureaucracy. Here’s how:

All federal departments and agencies shall expire if said departments and agencies are not individually reauthorized in stand-alone reauthorization bills every three years by a majority vote of the House of Representatives and the Senate.

But that legitimizes most Cabinet departments Congress had no power to set up. As Publius Huldah reminds us, George Washington had only the Secretaries of State, War, and the Treasury, and the Attorney General. Today we could have the Secretary of Defense, or separate Secretaries of War, the Navy, and the Air Force. Three of these derive from the inherent power of government to relate to foreign governments, to keep a treasury, and to write and enforce laws. The fourth derives from the explicit powers of Congress to:

  1. Raise and support armies,2
  2. Provide for and maintain a navy,
  3. Make laws for the government of the army and naval forces,
  4. Call out the militia in specific emergencies,
  5. Organize, arm, train, and discipline the militia, and
  6. “Exercise exclusive legislation, in all cases whatsoever,” over lands holding “forts, magazines, arsenals, dockyards, and other needful buildings.”

Where does the Constitution empower Congress to provide for and maintain cadres of farm advisers? Or to hire a forester and forest rangers? Or to regulate relations with trade unions?3

Levin’s other proposals similarly legitimize present Federal over-reach. Simply adhering to the enumerated powers, would solve every problem he claims to solve.

What should we do instead?

Publius Huldah told CNAV privately that nothing short of a moral reformation would work. That moral reformation would change the hearts and minds of the electorate. Too many of our fellow citizens want “free stuff.” So why did Hillary Clinton lose the last election? Because she represented a party that promised free stuff and never delivered. Now Donald Trump, as President, must answer to those same people who want the stuff, somehow, some way. But the people must rediscover sound moral philosophy, so they know how to act like free people.

Senators and congressmen already must answer to a “term limit” of a sort. Their constituents need not re-elect them. Let another candidate challenge any of them. Let the rest of us take time to find out about that candidate, and hear him or her out. Then let them vote: out with the old, in with the new.

What should Congress do next?

A new Senate and new House need propose few actual Constitutional amendments:

  1. Repeal Amendment XVI, the Income Tax.
  2. Repeal Amendment XVII, Popular Election of Senators. Let the legislatures immediately send in a new Senate of members they choose directly.
  3. Repeal Article I, Section 8, Clause 9: “The Congress shall have the power…to establish post offices and post roads.” That power refers to an obsolete means of communication and way of thinking about communication and shipment.
  4. Limit a Representative to three terms or seven years of service in the House.
  5. Limit a Senator to two terms or fifteen years of service in the Senate. This includes not letting one legislature choose a Senator who has already “maxed out” his service from another State.

Next they should remove by impeachment any and all federal judges who have violated the Constitution in their rulings.

Of course the Congress would next abolish all Departments not within their power to establish. That means every Department except State, Treasury, Defense and Justice. It also means abolishing the Federal Reserve and every trace of fractional reserve banking and the issuance of debt-based scrip. Congress has the power to coin money, not to emit bills of credit.

Above all, they must show respect for several “forgotten” parts of the Bill of Rights. Amendment X, of course says the federal government has only the powers the Constitution grants it. Any other powers the Constitution forbids to the States, the States hold. Amendment IX also says the people hold certain rights independently of the Constitution. So merely because the Constitution does not mention a right of the people, doesn’t mean the people don’t have it.

Summary

We need not amend the Constitution, except for the five brief proposals this essay outlines. We need only respect it. And we dare not expose the Constitution to the process that created it to begin with. Again: no object or institution can survive a second exposure to the influence or process that created it. A second Constitutional Convention would destroy the Constitution.


1 Mike Farris has boasted that he will chair the Convention of States. Arrogance aside, he can never guarantee that any State will choose him. Equally likely, George Soros will hold the chair, or choose the chairholder.

2 “Air Forces” are “armies” within the meaning of Article I, Section 8.

3 The Census Bureau could transfer to the Department of State. State Departments of State keep divisions of elections. Likewise, the federal Department of State could run the census. In fact, the federal Secretary of State normally certifies Constitutional amendments after the States ratify them.

Editor-in-chief at | + posts

Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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