Is There a Better Way? From as Socratic a perspective
as possible, it is imperative that Article V, as it is written, be understood
to be what it is and what it is not!
Article V is the LEGAL AUTHORITY
(remember the Rule of Law?) by which our Constitution may be amended, a word of
very specific meaning. It is NOT a Legal Authorization for a Constitutional
Convention where the Articles of the entire document could be scrapped and
totally rewritten, but it does provide alternative methods, one of which is a
Convention of States, considered here. And, in considering the nature and
effect of any amendments flowing therefrom, they MUST be rejected if they fail
to maintain, heighten or greatly enforce the inalienable rights of man.
THE
APPLICATION (a petition to Congress) - A
decision to Petition Congress via an Application for the Call of a Convention
of the States ONLY for the purpose of considering amendments is
exclusively the Prerogative of at least 33 States (34 if you count the District
of Columbia, which I do not as it is not a “State” as defined in our
Constitution). This Article V power is an enumerated RIGHT of each State.
Upon prior consultation and
negotiation between the several States concerning their agreement as to the
amendment(s) necessary to be considered, the number of delegates, and
instructions to be given their delegate(s) as to the use of the acceptable
rules governing the proceedings of their delegates, each State, by an act of
its Legislature, shall issue, individually or collectively, a Petition to
Congress which may set forth some or all of those agreements, but, in any
event, shall state, with particular specificity, that their mutual Petitioning
is for the sole and exclusive purpose of considering amending the
"Constitution of the United States" pursuant to the authority
recognized in Article 5. There is no, NO, requirement that Congress be informed
of any particular amendment proposed to be considered.
THE CALL – As is customary, a “Call”
is properly a written document issued under an authority which provides notice
to another of a meeting for a purpose, commands the presence of the other, and
sets forth the date, time, and place of that meeting; other information may be
included. This Call is different.
With due deference to Ms. Publius
Huldah’s standing, I must respectfully disagree with her characterization of
the “call process” ["MARK LEVIN REFUTED", Publius Huldah, September 21, 2013,
NewsWithViews.com]. In the case of an Article V Call, this ‘Call’ is NOT notice
under the authority of Congress to command the presence of others at a date
and time certain for a specific purpose; rather it is a Constitutional Duty
of acknowledgment by Congress of the notice under the constitutional authority
of the States of their intent to perform a constitutional duty.
Once this notice has been served
upon Congress, the congressional duty imposed is simple; to ascertain if 2/3 of
the states have submitted Application(s) and are they for the statutory
purpose, if so, send an acknowledgment and call it a “Call”. Nothing more. If
those first two simple task are in the affirmative the “Call process” is
accomplished by the issuance of a Joint Resolution of Congress which
acknowledges that Congress has been served with notice by Application of the
States’ Right to convene by the requisite number of States, that the Congress
has been served with notice of the intended constitutionally mandated
specific purpose, and that those States are authorized by the authority of the Constitution (not
by authority of Congress) to proceed for the purpose defined. This
Congressional acknowledgment of the States’ Right is then sent to the Governors
of the several states.
It must be noted here, and noted
clearly, that Article V, in this instance, demands an Administrative or
Ministerial Duty on Congress, NOT a Legislative Duty! The reason for this
distinction is for the purpose of providing Notice of Immunity of Congressional
members.
The issuance of this “Congressional
Call” is the exclusive legal, non-discretionary, self-enforcing DUTY of
Congress, and the Art. V language is definite and explicit; Congress has NO
discretion to deny it or to unreasonably delay it beyond that time necessary to
determine the requisite number and stated objective of the Application(s).
THE
ORGANIZATION OF THE CONVENTION - The
organization of a Convention of States is exclusively the authority of the
delegates once assembled consistent with the instructions of their respective
state legislatures. Stare decisis from the organization of the Federal
Convention of 1787 would indicate the modus operandi therefor.
POTENTIAL
PROBLEMS
Each House of Congress, consistent
with its own rules of practice and procedure concerning the movement of a
resolution through its respective committees, subcommittees, and to the floor
for action, is without, and does not need, and may not legally enact, under the
Necessary and Proper Clause any Conditions of Approval or Issuance and may only
acknowledge the propriety of the Application(s) and issue the requisite
Congressional acknowledgment that those States are authorized by the
Constitution to conduct their Convention. Consistent with the precise and
limiting verbiage of this Article, Congress is without statutory authority to
set a date, time, and place for holding said Convention and without authority
to order any particular amendment be considered, or in any way seek to
administer or control those proceedings as these are to be left to the sole
discretion and agreement of the States to be carried out by their delegates. If
these issues are stated in the Petition of the States, they may be referenced
in the Congressional Call.
In Dr. Vieira's article (PRUDENT FEAR OF THE UNKNOWN IS NO “FALLACY”, Dr. Edwin Vieira, Jr., Ph.D., J.D., NewsWithViews.com,
October 16, 2013) there is raised the specter as to congressional abuses which,
though possible, would run afoul of the Separation of Powers Clause (Amend. X).
Article V specifically states a broad State’s Right which is superior to
Congress, and an exceedingly narrow Congressional Duty; and no other authority
is either granted, contemplated, or implied to Congress in the Article V
language.
Dr. Vieira's suppositions as to what
could happen by Congressional intervention and why Congress might want it to
happen are, in a Constitutional sense, a very real and present danger. However,
such an attempt would be immediately met (or should be met) by litigation
requesting the Supreme Court to issue processes in the nature of Writs of
Mandamus, Prohibition, Procedendo and / or Declaratory and Injunctive relief
based upon delay or Ultra Vires acts of Congress in violation of the Reserved
Powers Clause (US Const., Amendment X). This relevant part of Article V is
purely and simply an acknowledgement by Congress of a superior State’s Right,
but its implementation and its exercise demand the eternal vigilance of the
people and a determination on their part to take any and all actions necessary
to prevent the abuse of it.
Any group of congressmen, Senators
or Representatives, in sufficient numbers to block the passage of such
Resolution for any reason other than failure to comply with strict statutory
language would be subject to sanctions, impeachment, and civil and/or criminal
prosecution for failure to comply with their oath of office. No Federal
Codified Statute, rule, or regulation could be interposed to prevent or delay
the passage of said Resolution without subjecting the offenders to civil or
criminal prosecution.
As to the Convention itself, any
attempt to rewrite the entire Constitution would subject the delegates, also,
to ultra vires Court review in a civil or criminal proceeding, and ANY proposed
amendment, believed to contravene any protectable guarantees (prior to or after
submission to the 50 state legislatures) may be the subject of a legal
challenge and an injunction in a court of competent jurisdiction. Such a legal
challenge may be brought by any citizen or group of citizens, a delegate(s) of
the Convention, or by a State(s) or any group thereof. Still, given the
personal experiences with the political mindset of Governors, Legislators,
Judges, and Lawyers there is cause for no small amount of concern
Though I view the Article V
preogative of the States as a reasonable and civilized method for the citizens
of this Nation to manage their Government, I am saddened to note that in this
Nation at this time we have no known Franklins, Jeffersons, Washingtons, Adams,
Madisons, Hamiltons, etc. That alone is cause for considerable trepidation.
ALTERNATIVES
Though there are sound
constitutional arguments supporting the use of the Militia to enforce Federal
compliance with constitutional mandates and the Nullification Process by which
Governors and Legislators could refuse to comply with corrupt federal dictates,
both are, at the juncture in human history, unsound. The reason for this is
simply that, at this time, the Militia has no qualified, conscientious, and
dedicated leadership which could only result in at least a repeat of Kent
State, and at worst, a full blown armed revolution. As for Nullification, that
too suffers from the same malady of Leadership; not that there are none
qualified, rather, based upon provable facts, there is a rampant corruption in
the present leadership willing to bow to the Federal corruption at the state
level. To paraphrase a most poignant thought by Ms. Huldah, it is idiotic to
assert that you can rein in a federal government which ignores the Constitution
by relying on corrupt State officials who do the same!
The bane of our present circumstance
may be laid to just one proximate cause, and no, that is not the lethargy,
indolence, or indifference to ignorance of the citizens of this Nation;
Education is the culprit.
Far too many generations have passed
since children were taught to read and write by referencing our Declaration of
Independence or the Constitution of the United States, or the Constitution of
your state, and for too long have children been daily tutored without
instruction on how to properly think and have endured a total lack of imparted
understanding of the Rule of Law. That deprivation of knowledge and understanding
necessary for a graduating child to go out into the world prepared to become a
responsible citizen, capable of thinking and acting for himself as one
ultimately responsible for the management of his government, has slipped into
nonexistence, unnoticed by our fathers until the time now is that our fathers
are not capable of showing or teaching that which must be known for us to be
other than a serf, a peon, kept in our gilded cages by crafty overlords who are
supposed to be our public servants.
It may be truthfully said that our
educational system in this Nation has performed a superb role in educating our
present generations to the maximum level of their acceptable ignorance.
Yet, and herein might lie the
salvation of this Republic, in spite of the indolence, indifference, and
lethargy, natural maladies of the human condition of which evil intent makes
profitable use, there is still possessed by most an acceptable degree of common
sense. But where could that attribute be put to our salvation?
As necessity might dictate, the
imposition of the power and duty of Article V is, if nothing else, a civilized
manner, preferable to the Militia or to Nullification, for a people who want to
be free, to manage their government, fraught with danger and delay though it
would be. But I would be remiss if I did not point out that there is another
venue, and one the legal scholars have not mentioned. This is probably due to
the fact that this process is currently known only in Georgia, though not
widely enough; not that it might not be applicable in other states.
ACCEPTABLE
ALTERNATIVE?
We are all aware of the abuses put
to guns, knives, crowbars, and other instrumentalities used by criminals to
take or deprive us of our property, sometimes by force.
But what most DON’T understand,
including most lawyers, is that a law enacted by a state or the Federal
legislature may also be the instrumentality by which our property is unlawfully
deprived or taken from us. Likewise, the vast majority don’t understand that
our liberties, i.e., speech, petition, hearing, bearing arms, our right to be
justly compensated for our property being taken for public use, just to name a
few, are also our PROPERTY (O.C.G.A. 16-1-3(13)). Any time a law unlawfully
deprives us of these pieces of property, or a government official unlawfully
takes these while acting under such a law, both those who enacted the law and
the agent enforcing it have committed a crime under Georgia’s Constitution and
Statutes (O.C.G.A. 16-8-2).
Purely as a matter of common sense,
you, as a private citizen, know when a law is bad and its enforcement wrong
whether you or your neighbor is the victim; but who, you may ask, is clothed
with the Authority of Law to hear your or your neighbor’s plea that a law is
unjustly taking or depriving you of your property and is also vested with a
sufficiency of power under the law to redress this grievance. In Georgia
there is a two word answer. Grand Jury!
In Georgia, there is a much more
immediate, impressionable, and stringent a method for protecting ourselves from
the abuses of corrupt politicians making bad laws which serve no other purpose
than to take our property and give us no just compensation, either in a thing
or to a service, in return.
That method is our right to appeal
to a grand jury, or in the case of a corrupt law from Congress or even our
state legislature, an appeal to all 159 grand juries in this State.
But how does Georgia Grand Juries
have authority to subpoena federal authorities and possibly sent them to trial,
and possibly jail, for such corrupt acts? You need to read and UNDERSTAND Ga.
Const., Art I, sec. I, par. XI and XII. In Georgia, ONLY Grand Juries and
Criminal Trial Juries, in criminal cases, are clothed with a power not
acknowledged in or permitted to any other officer in any other branch of
Government by our Constitution; THEY
JUDGE THE LAW in addition to the facts. Our Constitution makes plain
that the Governor, all Legislators, all Judges including those of the Supreme
Court and all those on the Federal Bench whether their courts are in Georgia or
in Washington, DC, all District Attorneys, all Sheriffs and their deputies
shall answer before a Grand Jury in this State upon proper cause being shown.
NONE are immune from the Inquisitorial Power of a Georgia Grand Jury … NO, NOT ONE!
The reasoning is quite simple; the
unlawful deprivation of the property right of all the citizens of this state is
a crime contemplated in the broad and all inclusive language of Georgia’s Theft
statute (O.C.G.A. 16-8-2). Under the terms of that criminal statute the only
thing that has to be proved is that there has been a deprivation or taking of
your property by another, or others, who had the intent to deprive you of your
property and their act was unlawful.
Next, consistent with your right to
petition, speak, and be heard, you also have a right to prosecute your “own
cause” in any court of this state, with or without the assistance of counsel.
Therefore, You have a RIGHT to petition a Grand Jury (O.C.G.A. 1-2-6(6)), to
speak verbally and through your evidence (to be a witness under O.C.G.A.
1-2-6(7)), and you have a RIGHT to be heard by them, and they have a duty to
hear; and, in their presence, it is the sole and exclusive power of a Grand
Jury in Georgia to “Judge the law”, not a district attorney and not a judge.
Anyone, lawyer, judge, DA, or enforcement officer who obstructs your right to
petition and be heard by a Grand Jury is a Thief, nothing else.
If the Congress or this State’s
Legislature should pass a law, even if it is called a tax yet does not return
to you a thing or service of just compensation, that law unlawfully violates
the Fifth Amendment’s prohibition as to the taking of property. If you, a
citizen of Georgia or any other state, is the victim of an unlawful taking by a
law enacted by Congress, show your proof to your Grand Jury, for they have the
power to bring all who voted for such a law, and any President or Governor who
signed it into law, into their Court of Inquiry and hold them to answer under
penalty of contempt and possible presentment to trial for their very liberty.
The ONLY power recognized by any of
our constitutions greater than this is the Second Amendment. Which should a
civilized society prefer to force politicians to comply with our Constitutions?
Perhaps the time now is that we show
the world just how powerful the people of Georgia truly are by asking our Grand
Juries to lead us to a time when the Constitution is enforced upon those who
would subvert it and turn it to an instrument of plunder. Yes, that includes
Governors and Legislators who have violated their oaths of office and stained
the skirts of their integrity in exchange for a Federal Dollar.
Paul L. Nally, Former Judge 827th
Militia District, Georgia © 2014 Paul L. Nally – All Rights Reserved
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