Once again, the proponents of an Article
V “convention of states” (a term that never appears in the applicable
constitutional article) are misrepresenting history, the Constitution, and the
position of The John Birch Society.
In an op-ed originally published in the
(Provo, Utah) Daily Herald and subsequently
reprinted by the Convention of States (COS) organization, Allen Boettcher, the
COS director for Utah, declares that it is “time to trust the Constitution.”
Curiously, however, Boettcher goes on to
explain why we should do exactly the opposite by “proposing amendments to
correct specific problems” in the Constitution.
First, it is the position of The John
Birch Society that the solution to the problem of the federal government’s
consolidation of power and accumulation of crushing debt does not lie in the
changing of the Constitution, but in the consistent application of its
enumerated powers and the 10th Amendment. Boettcher apparently believes that
although Congress, the president, and the courts routinely disregard all limits
on their power included in the current Constitution, somehow new amendments
would transform them into obedient adherents to additional restraints.
In his letter, Boettcher even (I imagine
unwittingly) admits this very fact, writing, “The Federal Government would
never voluntarily relinquish its own power.” Will that same criticism not still
hold true if we were to add even more amendments intended to place
constitutional limits on that power? Won’t the federal government continue tearing
right through the “parchment barriers” on its way to totalitarianism?
Of course it will, Mr. Boetttcher.
Next, Boettcher claims:
Those who refer to an Article V
Convention as a “Constitutional Convention” (including The John Birch Society,
Eagle Forum and, apparently, Ms. Openshaw) demonstrate a fundamental
misunderstanding of the difference between the 1787 Constitutional Convention,
called by the states pursuant to their residual sovereignty for the purpose of
crafting a workable federal government, and an Article V Convention, called
under the authority of our existing Constitution.
Wrong again, sir.
It’s curious that the COS people go to
such lengths to deny that they are calling for a constitutional convention, yet
they have no problem calling what happened in Philadelphia in 1787 a
constitutional convention and it was called for exactly
the same reason as the COS: to propose amendments to the existing Constitution.
This is the last paragraph from the
report of the Continental Congress calling for the convention of the states
held in Philadelphia begun in May 1787:
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.
Change a few words, modernize the
language a little bit, and this is precisely the same call being made by the
COS organization, yet they consistently deny that they are calling for a
constitutional convention. They cannot have it both ways.
In 1787, the document known as the
Articles of Confederation was the capital “C” Constitution of the United
States. Article XIII of that Constitution mandated that regarding the making of
changes to it: “Nor shall any alteration at any time hereafter be made in any
of them; unless such alteration be agreed to in a Congress of the United
States, and be afterwards confirmed by the legislatures of every State.”
When the constitutional convention met
in Philadelphia in May 1787, that legally binding and constitutional provision
was ignored. From the moment Edmund Randolph stood and proposed what was known
as the “Virginia Plan,” the Constitutional Convention of 1787 became a “runaway
convention.”
There’s no debating that fact. There was
a provision of the Constitution prohibiting any changes to the Articles without
unanimity. That provision was not only disregarded, but was replaced,
eventually, by Article VII of the Constitution created at the convention.
Article VII of our current Constitution
reads: "The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the States so
ratifying the Same."
That’s quite a bit different. With the
approval of that new provision, the unanimity rule and the Constitution were
replaced.
Despite constant reassurances by the
pro-Article V convention group, there is nothing that could prevent a
“convention of the states” from going down that same road.
Were we lucky (blessed) by the results
of the runaway convention of 1787? Yes, undoubtedly. Would we be so lucky
again? Not likely. As I’ve indicated in a previous article on the subject,
there are scores of socialist organizations slavering at the thought of getting
their hands on the Constitution and making it over into something we wouldn’t
recognize. These groups have adopted Article V as the means to that end: an
Article V convention of the states.
There is nothing in Article V limiting
the power of a convention called under its authority. Think of the
ramifications of a convention called to change the Constitution — a
convention without legal limits on its power.
Of course, the COS organizers claim that
the convention they support would not create a new constitution.
That’s not the point. The point is that
the COS could create a new constitution, just as the constitutional convention
in Philadelphia did in 1787.
On that point, was the convention of
1787 called to consider a new constitution? No, it was called “to devise such
further provisions as shall appear to them necessary to render the constitution
of the Federal Government adequate to the exigencies of the Union.”
In other words, the convention was meant
to be a limited convention, empowered for the very limited purpose of
considering amendments to the Articles of Confederation that would help the
country get out of the financial mess it was in in 1787.
Does that not sound precisely like the
language used in COS literature? Yes. On its Frequently Asked Questions (FAQ)
page, the COS states: "The federal government is spending this country
into the ground.… It’s time American citizens took a stand and made a
legitimate effort to curb the power … of the federal government."
Lastly, a final and very important point
about Article XIII of the Articles of Confederation.
In its FAQ, the COS claims: "It
[the Convention of the States] cannot throw out the Constitution because its
authority is derived from the Constitution.”
Two questions will reveal the fundamental
errors with this statement and will explain why the COS promoters try to avoid
at all costs mention of the Articles of Confederation, specifically Article
XIII.
First, was the authority of the
constitutional convention of 1787 derived from the Constitution in effect when
that convention was held in Philadelphia? Yes. The Continental Congress’ report
calling for the Philadelphia convention specifically references the “provision
in the Articles of Confederation & perpetual Union for making alterations therein.”
Article XIII.
Second question: Did the convention in
Philadelphia in 1787 “throw out the Constitution” in effect at that time and
replace it with a new one, radically different from the
one already in legal effect? Yes.
The differences between the Articles of
Confederation and the Constitution of 1787 are significant. Not the least of
which was the method established for adopting those changes and endowing them
with the force of law. What once required a unanimous vote, now required the
approval of only 3/4 of the states.
Finally, Boettcher insists that while
“some federal laws can be 'nullified,'” this is “not a viable solution for the
vast majority of federal law.”
To correct this misunderstanding of
federal law, I repeat what I have written in response to an earlier attack on nullification made by the COS:
Next, despite its citation of principles
of “Agency law 101,” the COS movement’s attitude toward nullification ignores
basic tenets of the law of agency that would have been taught in that fictional
class.
The law of agency applies when one party
gives another party legal authority to act on the first party’s behalf. The
first party is called the principal and the second party is called the agent.
The principal may grant the agent as much or as little authority as suits his
purpose. That is to say, by simply giving an agent certain powers, that agent
is not authorized to act outside of that defined sphere of authority.
Upon its ratification, the states, as
principals, gave limited power to the central government to act as their agent
in certain matters of common concern: defense, taxation, interstate commerce,
etc.
The authority of the agent — in
this case the federal government — is derived from the agreement that
created the principal/agent relationship. Whether the agent is lawfully acting
on behalf of the principal is a question of fact.
The agent may legally bind the principal
only insofar as its actions lie within the contractual boundaries of its
power.
Should the agent exceed the scope of its
authority, not only is the principal not held accountable for those acts, but
the breaching agent is legally liable to the principal (and any affected third
parties who acted in reliance on the agent’s authority) for that breach.
Under the law of agency, the principal
may revoke the agent’s authority at will. It would be unreasonable to oblige
the principals to honor promises of an agent acting outside the boundaries of
its authority as set out in the document that created the agency in the first
place.
Imagine the chaos that would be created
if principals were legally bound by the acts of an agent that “went rogue” and
acted prejudicially to the interests of the principals from whom he derived any
power in the first place. It is a fundamental tenet of the law of agency that
the agent may lawfully act only for the benefit of the principal.
Inexplicably, this is the position taken
by COS when they argue that the states may not nullify unconstitutional federal
acts and refuse to be bound by an agent that repeatedly exceeds its authority.
Not only does this agent (the federal government) habitually breach the agency
contract, but it does so in a manner that irreparably harms the principal (the
states).
Finally, let's use an analogy to put a
finer point on the agency angle specifically and the need to alter the
Constitution generally.
Imagine that a person agrees with a
contractor to build a house. The two parties meet and sign off on a contract
for the building of the house which includes a blueprint of the home. The
contractor begins work, but after a while decides to start building wings on
the house that weren’t provided for in the contract and the blueprint and
starts running up enormous debts to build these extra-contractual additions.
When the future homeowner visits the
building site, what should his reaction be? Should he decide that he should go
back to the contract and change parts of it, adding provisions reiterating the
general contractor’s restrictions and responsibilities?
Would a contractor with such obvious
disregard for contractual limits on his power be likely to suddenly begin being
bound by the new restrictions? Not likely.
This is exactly what the COS people are
promising, though. They state that even though the federal government “is
spending this country into the ground,” the best way to stop this abuse of
power is to add new restrictions to those already included in the original
contract (the Constitution) that forbid this type of overreach.
Those of us opposing an Article V
convention, however, believe that the best way to stop the federal government’s
constant disregard of constitutional limits on its power is for states (the
principals) to enforce those limits.
We realize that the federal government
will treat any new amendment restricting its authority the same way they treat
those already in the contract.
Despite the millions being spent by the
various factions of the Article V to ensure that a convention takes place,
there is yet time for concerned Americans with a better grasp of history and
constitutional construction to speak up and prevent this from happening.
We cannot afford to entrust the future
of our Constitution to a group of people who make blatantly incorrect
statements about the power of an Article V convention and the history behind
the adoption of our current Constitution.
The New American, Con-Con Group Pens Another Historically Inaccurate
Call for Convention, Written by Joe Wolverton, II, J.D. . Wednesday, 28 May
2014 10:27
Comments
There is an
argument raging about the States’ call for a Constitutional Convention. The John Birch society has warned us that
calling a Con-Con to balance the budget is a dangerous move. The wrong people are in control of the
government and would take this opportunity to change the Constitution to allow
all the tyrannical government overreach we see occurring to be incorporated in
a Constitutional Amendment or a new Constitution. George Soros and Nancy Pelosi can hardly
wait. The John Birch Society remains the
only consistent watchdog to prevent a Communist takeover of the U.S., so I side
with them.
If
Republicans take the Senate in 2014, we should be able to reduce spending
enough to balance the budget. An Obama
veto could be overturned with a 2/3 majority. That should make the Con-Con
unnecessary. If that occurs and the
Con-Con call is not rescinded by the States, the Socialists will have another
chance later to attack the Constitution (as written) later. American Socialists are like herpes, they
never completely go away.
The problem,
of course is that the State Legislatures are likely to not repeal the Con-Con
call. The bad guys are there too. The hapless passage of the Con-Con call
remains the worst piece of State legislation passed in 2014.
Norb Leahy,
Dunwoody GA Tea Party Leader
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