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The Founders’ Battle over the Nullification Heresy

Although nullification itself was not discussed much at the time of the Constitution’s drafting and ratification, the consensus at that time was that authoritative decisions about the constitutionality of federal laws would be the province of the federal courts, not the states.

This was the view of an overwhelming weight of authorities and experts. Both the Constitutional Convention, the state ratifying conventions, and over half a dozen Federalist Papers show clearly that the founders of our Constitution attributed this authority only to the federal courts. And that implied that nullification was illegal.

But what should the states do, if Congress steps way out of its constitutional bounds and the Judicial branch colludes (or could be expected to do so) in the usurpation? That issue raised its head a mere eleven years after the Constitution was written — with the passing of the unconstitutional and quite tyrannical “Alien and Sedition Acts”. Both James Madison and Thomas Jefferson were extremely disturbed by this legislation.

In his Virginia Resolution (passed Dec. 24, 1798), a response to those acts, Madison floated the idea of a state’s “interposing” against an unconstitutional federal law. This Resolution did not indicate, though, what concrete acts “interposition” might involve. Later, in the Report of 1800, Madison gave some specific examples: communicating with other states about the unconstitutional federal law, attempting to enlist the support of other states, petitioning Congress to repeal the law, introducing Constitutional amendments in Congress, or calling a constitutional convention. None of these is very surprising — much less, of questionable legality.

Most likely the first discussion of the “nullification” concept — though he did not use the term — was actually in Federalist Papers 15 & 16, written by Alexander Hamilton.

In Paper 16, Hamilton distinguished carefully “between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated.” Hamilton continued:

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular [i.e., state] governments could not interrupt their progress without an open and violent exertion of an unconstitutional power…. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority…. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors…. (Interpolations and emphasis ours.)

Unfortunately, in the face of the Alien & Sedition Acts, for a very brief time in 1798-99 Thomas Jefferson succumbed to the temptation to lay that very course. The “Kentucky Resolutions” of 1798 were likewise a state’s response to those acts. Jefferson, who was Vice-President, was their original author, though this was not widely known at the time. (Jefferson and Madison were close friends and fellow members of the Democratic-Republican Party, and carried on extensive correspondence during this period. Each wrote his Resolutions anonymously.) It was in the Kentucky Resolutions that Jefferson coined the term “nullification”.

The Kentucky Legislature itself was more reserved in their statements than was Jefferson: before they passed his Resolutions they removed the term “nullification” (although they restored it in their 1799 version). Also, their 1798 version ended by expressing the hope “… that the Co-states recurring to their natural right in cases not made federal [by the Constitution], will concur in declaring these [Alien and Sedition] acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress.”

Jefferson’s original drafts were more straightforward, about what “nullification” truly involved: in those drafts the same passage reads:

… and that the co-states, recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force, & will each take measures of it’s own for providing that neither these acts, nor any others of the general government, not plainly & intentionally authorised by the constitution, shall be exercised within their respective territories. (Emphasis added.)

Here Jefferson went boldly where Madison feared to tread: what Jefferson meant by the term, and what he hoped for from the other states, involved not only the state’s pronouncement of the “null and void” status of an unconstitutional federal law, but also the state’s taking whatever measures are necessary to make sure the law is not enforced within its boundaries.

This is the whole point of nullification. But practically, in such cases as Jefferson had in mind, those “measures” would entail the use of force – or at least, the credible threat of it.

Jefferson was fully aware that it might involve actual violence. On Nov. 17, 1798, after he had finished his draft of the Kentucky resolves, he wrote in a letter to Madison, “I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.” (Emphasis added.)

By early 1799, however, Jefferson had decided that any actual use of violence would be counterproductive — for some of the same reasons Hamilton had mentioned years earlier. In a letter to Madison on Jan. 30, Jefferson wrote that “Firmness on our part, but a passive firmness, is the true course.  Anything rash or threatening might check the favorable dispositions of [several States that had petitioned against the Alien & Sedition Acts], & rally them again around the measures which are ruining us.” (Emphasis added.)

Instead, in late August 1799 Jefferson suggested a different radical remedy — secession. In letters to Madison and to Wilson C. Nicholas, he outlined his new plan for strengthening public support for the principles expressed in the resolutions.

Jefferson suggested that a new set of resolves be passed by the legislatures of Kentucky and Virginia, and sent to the various states, which, after encouraging their support for the resolutions, would add that:

[Kentucky and Virginia were] fully confident that the good sense of the American people and their attachment to those very rights which we are now vindicating will, before it shall be too late, rally with us round the true principles of our federal compact; but determined, were we to be disappointed in this, to sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, & in which alone we see liberty, safety & happiness. (Emphasis ours.)

This idea horrified Madison, it seems. He paid a visit to Jefferson the very next week, and convinced him to back down from his plan.

Most serious Jefferson historians, as well as most other American leaders at the time, have been dismayed by his actions during this period. As Wikipedia points out,

In writing the Kentucky Resolutions, Jefferson warned that, “unless arrested at the threshold,” the Alien and Sedition Acts would “necessarily drive these states into revolution and blood.” Historian Ron Chernow says of this “he wasn’t calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president.” Jefferson “thus set forth a radical doctrine of states’ rights that effectively undermined the constitution.” [34] … George Washington was so appalled by [the resolutions] that he told Patrick Henry that if “systematically and pertinaciously pursued,” they would “dissolve the union or produce coercion.” [34]  (Emphases ours; interpolation Chernow’s.)

 

 

State Nullification of “Unconstitutional” Federal Laws

‘Nullification,’ the theory that states can invalidate federal laws that they deem unconstitutional, had its heyday in the slavery debate that preceded the Civil War, but it has found new currency since 2010.

The theory has never been validated by a federal court, yet some Republican officeholders have suggested states can nullify laws, including Senator Joni Ernst, who gave the GOP rebuttal to the State of the Union. Missouri legislators passed a bill that would have nullified all federal gun laws and prohibited their enforcement.
“Nullification, Now Coming to the Supreme Court?” The Atlantic (theantlantic.com), January 21, 2015.

Concerned Americans looking for a quick way to restrain the federal government are continually offered dangerous tangents that “rely on faulty assumptions regarding the source of our problems.”

One of the most dangerous “remedies” right now is the organized drive to pressure state legislatures into calling a constitutional convention, using the process spelled out in Article V of the Constitution. (See our campaign to “Expose the Article V Con-con Fraud.”)

And other groups are pushing various forms of state action to nullify federal laws. In fact, one group, The John Birch Society, in July of this year (2015) posted a video clip arguing that state nullification is the responsible alternative to a Con-con.

However, those who promote State nullification of unconstitutional federal laws are advocating a confrontational step fraught with danger that misleads its supporters as to what can be accomplished. For the nullification movement completely ignores the real driver of federal usurpation and so its proposals would leave that influence intact.

We stand by what we wrote in our March 2011 Action Report, with the key excerpt:

“The Wrong Medicine

Our objection has nothing to do with whether states have the right to nullify federal laws, propose a constitutional amendment, or even call for a constitutional convention. The issue is whether those are the right things to do. Unfortunately, the arguments supporting any of those steps rely on faulty assumptions regarding the source of our problems.” — March 2011 Freedom First Society Action Report

We strongly suggest that those looking for solutions to an out-of-control federal government read our entire analysis, beginning on page 3 of that report.

“Living” Is Fatal For Constitutions

 A long exposed constitutional heresy undergirds the June 26, 2015 Supreme Court decision supporting same-sex marriage.

[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
 — First Inaugural Address by Abraham Lincoln, March 4, 1861, in A. LINCOLN, SPEECHES AND LETTERS 171–72 (M. Roe ed. 1894).

As many Americans know, the U.S. Constitution’s Tenth Amendment says, in essence, that the federal government has no power or authority that is not granted to it, explicitly, in this Constitution; and it cannot prohibit to the States any power or authority not prohibited to them, explicitly, in this Constitution. Thus the amendment makes very clear the force and purpose of our Constitution.

Now, try to imagine a scenario in which “We The People”, in drafting this Amendment (via our elected representatives), decide to add this proviso: “However, the federal government has, in addition, the authority to interpret the Constitution without regard to the text’s meaning; thus, it may find therein any new powers or authorities it wishes it to grant to itself, and any new prohibitions of power or authority it wishes it to make to the States.

Would that scenario make any sense? Would not such a proviso nullify the previous statement in the Tenth Amendment – or rather, even effect its opposite – and thereby nullify the Constitution? Of course it would.

However, a majority of current Supreme Court justices have, in effect, assumed this proviso; and its presumption formed the basis of the Supreme Court decision overturning state laws against same-sex marriage. Moreover, its presumption was behind many other Constitution-twisting Supreme Court decisions in the past, such as the abortion-legalizing decision in 1973.

A “Living” Constitution

In what form, and what terms, does this presumption appear? Incredibly, it has been elevated to the status of a legal doctrine – one actually promoted in some judicial circles, though hardly ever mentioned in the news media. As such, it has a name: it is the idea that we have a “living” Constitution – one that evolves with the changing times, without having to be amended by a stipulated, time-consuming procedure.

It goes without saying, that none of the proponents of this presumption would want their writings treated with the willful twisting of intent they advise us to apply to the Constitution. For then, we could read into their writings the very opposite of their intended sense, on any day(s) that we deemed it appropriate.

The idea did not always go under the name “living Constitution,” however. As former Supreme Court Chief Justice William Rehnquist points out, it reared its head first in the notorious Dred Scott decision (1857), which overturned the Missouri Compromise (about slavery). The basis of that Supreme Court decision was a flagrant distortion of the Fifth Amendment’s “due process” clause:

[No person shall] be deprived of life, liberty, or property without due process of law….

Please note, “process of law” means just that: a legal procedure – or more specifically, a trial. “Due process” means simply, a trial conducted according to the applicable procedural rules. Thus, the “due process” clause enjoins the following of the appropriate procedural law; it says nothing about the substantive law being applied via the procedure.

This clear, original sense of the legal concept “due process of law” is sometimes called “procedural due process” (an obvious circumlocution). This is to distinguish it from the nebulous meaning into which Dred Scott twisted the phrase. The latter is often called “substantive due process,” a contradiction in terms: it means, basically, what substantive law (as opposed to, procedural law) would qualify as fair and right, in the situation, according to the judge’s inmost feelings and intuitions. In short: it is a rationalization for the judge’s own twisting of the law.

It is good to read the Court’s original statement, from that decision, as well as the decision’s pungent rebuttal from one of the dissenting justices. For neither its invocation nor its rebuttal has probably ever been, or could be, expressed any more accurately. In his dissenting opinion in the recent Supreme Court decision about same-sex marriage, Chief Justice John G. Roberts quoted both statements:

[T]he Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”  [pp. 50-51; the interpolation and first ellipsis are by Chief Justice Roberts]

The “due process” and other clauses in the Fifth Amendment restrict the Federal government. After the Civil War, the Fourteenth Amendment invoked the “due process” language again – against the states. But fortunately, the “substantive due process” idea did no further damage –until 1897.

In that year, the Fourteenth Amendment’s “due process” clause became the basis for more Constitution-twisting in Allgeyer v. Louisiana (165 U. S. 578). Likewise based on “substantive due process”, but gaining more notoriety, was 1905’s Lochner v. New York decision (198 U. S. 45). That case started a rash of similar decisions, in a now discredited judicial period known as “the Lochner era”. By making use of the “substantive due process” idea, during this time “the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that ‘[t]he criterion of constitutionality is not whether we believe the law to be for the public good.’” (Roberts, ibid., pg. 52 in the decision document.)

Interestingly, the first use of the word “living” to describe the Constitution as a malleable, twistable discourse was apparently in a 1908 book by Woodrow Wilson, who urged the approach. In true Progressive style, he preached an adaptable, evolutionary Constitution through creative text-twisting.

The end of the Lochner era is usually estimated at about 1937. After that year a strong reaction set in as the judicial consensus arose that in its use of “substantive due process”, the Court had far overreached its authority. But numerous decisions since then (e.g., 1973’s Roe v. Wade) testify to the powerful temptation this idea holds still for justices who wish to alter public policy. In response to its most recent deployment, Chief Justice Roberts opined that the majority’s “aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.” (pg. 54 in the decision document.)

So What Can We Do?

So, how do we control a federal judiciary that believes it has a divine right – and maybe an obligation – to twist the Constitution? It should be obvious that the only sort of Constitutional amendment that could address the problem would be one that repeals the Fourteenth Amendment’s “due process” clause. But how likely does the passage of such an amendment seem? And any call for a different amendment as an alleged solution would clearly be specious.

Is there a more-sensible approach? Indeed there is, one that requires only a simple majority of Congress. In an incisive article, Don Fotheringham has introduced us to the solution that our Founding Fathers built into the Constitution. Every American should read this enlightening article.

Furthermore, every American needs to recognize that we cannot rely on the mass news media to inform the rest of the citizenry about the problem, much less about the solution. As a forthcoming booklet from FFS, Media-Controlled Delusion, makes clear, the media are far too interested in promoting their own, usually liberal agendas – such as, the hidden agenda regarding same-sex marriage (see that booklet’s Chap. 3).

Instead, concerned Americans must join in an organized effort to educate their fellow citizens – an effort that bypasses the major media – such as our own “Campaign for Decency – Curb The Courts”. This is the only kind of approach, today, that has a chance to succeed. But there is no reason at all why it cannot. Contact the FFS to find out more.

 

The Sovereign Dynamic

State legislators need to beware: Nothing written in a state’s application for a constitutional convention has any force or validity once that convention is called to order. That is the nature of a sovereign assembly. That explains why America’s founders put the needs of the people ahead of all state and federal mandates when they met in 1787. A brief look into the roots of America’s constitution-making system will confirm this essential truth.

Constitutional Conventions are Strictly American

It should be understood that constitution-making through the convention avenue is strictly an American affair. Civilian sovereignty as found in the United States is unknown to other nations where sovereign power is vested in kings and dictators. Under such forms of government the rulers have no need for a people’s convention. They have no reason to allow citizens to make the rules of government, for the monarch or the ruling elite hold all sovereign power. They devise their own structure of government and make and enforce laws according to their desires.

From colonies to states

Until 1775 the American colonies were bound by written charters under which Great Britain directed their governments. These charters were, of course, suspended the moment the colonies declared their independence; however,  three of the thirteen states retained their colonial legislatures and merely revised their charters to serve as constitutions.[1] In 1776, five states adopted constitutions in the same manner in which they would have passed mere statutes, without authorization from, or ratification by, the people. [2]

The origin of constitutional conventions

In 1777 the Massachusetts legislature set itself up as a convention and drafted a state constitution. This constitution was immediately rejected by the voting public who resented the legislature’s assumption that it could call a convention without first obtaining authorization from the citizens of the state.

The principal factor which defeated the Massachusetts constitution was the widespread belief that only the people could define their rights and determine their form of government. The voters insisted that the only valid kind of convention would consist of delegates to whom the powers of the people were delegated for the sole purpose of framing a constitution. It would not be a body of representatives entrusted at the same time with other duties.[3]

The following year the chastened Massachusetts legislature called upon the voters to state whether they wished a constitutional convention and whether they would authorize the legislature to call one. The vote on both questions was affirmative, and accordingly the 1780 legislature called a convention to draft a constitution, which became the present Massachusetts constitution.[4]

The experience of New Hampshire was very similar. In 1777 that legislature also met as a convention and drafted a constitution, which was rejected by the people. They rebuked the legislature because it was not within its authority to organize a convention and make its own rules of governance.

The principle of sovereign power      

Most of the other newly freed states also attempted to frame constitutions under their legislative powers as if they were passing ordinary statutes. Although these constitution-making efforts varied slightly from state to state, the sovereign principle was not fully established until the citizens rejected the statutory route and took charge of the convention process.

In 1781 and 1782 the citizens of New Hampshire authorized a convention following the example of Massachusetts. Both states held America’s first bona fide constitutional conventions, and their example was soon followed by the other states.[5] The people had rejected the statutory form of government-making, insisting that supreme sovereignty of a free state was vested in the whole body of the people having power to create or alter governments “deriving their just powers from the consent of the governed.”[6] Constitutional conventions came indirectly from the people who called upon their legislators to appoint deputies to create a political system that would bind state officers to specific spheres of activity and prohibit them from doing anything else.

The sovereign principle: well understood in the original thirteen states

Nearly all of the original state constitutions, or declarations of rights, affirm the fundamental right of the people to establish or change their form of government. The following list of quotations from these early documents may help establish this point.

Massachusetts — The people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it. (Massachusetts Constitution, Preamble and Bill of Rights, Art. VII, 1781)

South Carolina — Some mode should be established by common consent, and for the good of the people, the origin and end of all governments, for regulating the internal polity of this colony. (Preamble to the South Carolina Constitution, 1776)

North Carolina — All political power is vested in and derived from the people only. (North Carolina Constitution, Declaration of Rights, Art. I, 1776)

Maryland — All government of right originates from the people, is found in compact only, and instituted solely for the good of the whole. (Maryland Constitution, Art. I, 1776)

Virginia — When any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal. (Virginia Constitution, Bill of Rights #3, 1776)

Pennsylvania — Whenever these great ends of government are not obtained, the people have a right, by common consent, to change it, and take such measures as to them may appear necessary to promote their safety and happiness…. The community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal. (Preamble to the Pennsylvania Constitution and Declaration of Rights, Art. V, 1776)

Georgia — The people, from whom all power originates and for whose benefit all government is intended. (Preamble to the Georgia Constitution, 1777)

New Hampshire — All government of a right originates from the people, is founded in consent, and instituted for the general good. (New Hampshire Constitution, Preamble and Bill of Rights, Art. X, 1784)

Delaware — All just authority in the institution of political society is derived from the people, and established with their consent to advance their happiness. (Preamble to the Delaware Constitution, 1792)

The federal convention system is born

The principle of a supreme sovereign citizenry was at the root of America’s constitutional convention system. The same format was used as the basis of the Federal Convention which met in Philadelphia in 1787. By virtue of the desire of free citizens to alter their form of government, the state legislatures were authorized to appoint deputies to act for the people in amending the Articles of Confederation.[7] The Continental Congress also acted on the matter by passing a resolution which attempted to set limits on the convention and required that it meet:

….for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several state 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 and the preservation of the Union. [8]

Members of Congress felt that this resolve would bring the acts of the proposed convention within the legal requirements of the Articles, since it was presumed that whatever was proposed by the convention must be agreed to by Congress and confirmed by all thirteen states. It should be noted that none of these mandates were upheld. The Convention of 1787 obeyed its call to convene, but ignored entirely the directives from Congress and the states. Why was this so? Because the deputies were proxies of the sovereign citizens for whom they were acting. As such, the Convention had every right to form a new government.

That is the power and dynamic of the American convention system. James Madison admitted that the Convention violated its orders from Congress and the states but rested his case on the final purpose of the Convention. “…if they [the Convention] had violated both their powers and their obligations in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.” [9]

Why must the sovereign principle be understood?

The origin and basis of America’s constitutional convention system is immensely significant. It shows that governments in the United States do not create or alter their own framework. As already noted, when the early legislatures attempted to create constitutions they were soundly rebuked by the voting public for the obvious reason that only the people can determine the system, limitations, and scope of their government. This is a permanent prerogative of all free people. “Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it….” [10] Are not “we the people” just as sovereign today as we were 239 years ago when the Declaration of Independence was signed?

Turning the process upside down

Sadly, the current movement for a constitutional convention attempts to bypass the principle of citizen sovereignty. We the people rule the convention — not the state, not Congress, nor any government entity. An ambitious group of modern reformers insist, however, that 34 state legislatures have the power to limit the scope of a constitutional convention. What they are asserting is impossible. The state legislature is the creation of a convention and cannot also be its creator, nor can any elective body tell a convention what it can or cannot do. This principle was amplified by George Mason during the 1787 Convention: “Col. Mason considered a reference of the plan [the Constitution] to the authority of the people as one of the most important and essential of the Resolutions. The legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators.” [11]

This two-century old rule applies to all conventions called under Article V of the Constitution whether intended for a single amendment, multiple amendments, or for an entirely new government. During the Convention of 1787 Mr. Sherman noted that, absent any stipulations set forth in Article V itself, “future Conventions [would be free] to act in this matter like the present Conventions according to circumstances.”[12] Consequently, future conventions would be sovereign bodies as free as the 1787 Convention to act as circumstances require.

Citizens and state legislators must come to understand the American sovereign dynamic which places authority in its proper order, which recognizes the people as the supreme sovereign power of a free country. Ambitious and creative reformers have invented a whole new convention system. They have relegated the convention to a mere ratifying body and have made the state legislature the deliberative body. They have turned the sovereign principle upside down, making state legislators effectively superior to the citizens who created the framework of their governments.

Again, legislators need to beware: nothing written in a state’s application for convention has any force or validity once the convention is called to order. That is the nature of a sovereign assembly, and that explains why America’s founders put the needs of the people ahead of all state and federal mandates when they met in 1787.

If a modern convention is called, it will have every power held by America’s founders 228 years ago. Certainly a modern convention will have everything — everything except the moral and ethical integrity of George Washington, James Madison, Alexander Hamilton, and the other 52 men who gave birth to the document that Gladstone said was “the most wonderful work ever struck off at a given time by the brain and purpose of man.” [13] It is not likely that our Constitution could survive the mental and moral climate under which a modern constitutional convention would meet and deliberate.

 

[1] Massachusetts until 1780; Connecticut until 1818; Rhode Island until 1824.

[2] North Carolina, South Carolina, Georgia, Virginia, and New Jersey.

[3] Arthur Lord in II “Mass Law Quarterly,”1,5; cf. Journal, Mass. Conv., 1779-1780, p. 225

[4] George Tolman, “Preliminaries of the Concord Fight” (1902); 1917 Manual of the General Court (Mass.) pp. 86-87.

[5] As previously noted, Connecticut remained under its charter until 1818 and Rhode Island until 1824.

[6] From the Declaration of Independence.

[7] The Articles of Confederation was the “constitution” of the 13 states prior to ratification of the U.S. Constitution.

[8] Resolution adopted by the Continental Congress February 21, 1787.

[9] The Federalist no. 40.

[10] From the Declaration of Independence.

[11] Farrand, Records of the Federal Convention of 1787, Vol. II, p. 88

[12] Ibid., Vol. II, p. 630

[13] William E. Gladstone, Gleanings of Past Years, Vol. 7.

Expose the Article V Con-con Fraud — Report

Our  Expose the Article V Con-con Fraud Campaign Action Report targets, in particular, the “Convention of States” project — one of several insidious attacks on our Constitution using the pretext of addressing legitimate conservative concerns.  Please read the report, and, when you understand the danger, support our campaign to derail this dangerous threat.

Urgent action is called for as the deceptive campaign targeting state legislatures is very well organized.  [A link to this report and additional support can also be found on the “Expose the Article V Con-con Fraud” Campaign Page, accessible via the “Take Action” tab.]

Recommended actions are provided at the end of the Report and also on our “Expose the Article V Con-con” Campaign Page.

The online Campaign Action Report is recommended for emailing.   Hard copies of  this Report can be ordered below through Tools & Products. Note that 25 copies are only $6 including shipping and 100 copies only $15 including shipping. So please be aggressive in your plans.

 

It’s a Whole New Con-Con Game

I do not believe the Constitution could survive a modern constitutional convention (con-con). So for many years I have been on the front lines of the anti-convention fight. By 1983 a con-con drive had come within two states of the 34 required to trigger a convention. With a profound sense of urgency and the help of many friends we were able create a little breathing space by getting thirteen of the 32 states to withdraw their resolutions.

Again, in 1995 I faced a fierce con-con effort called the Conference of the States and soundly defeated that scheme in fourteen legislative hearings the same year.

The new onslaught

The year 2015 began with con-con bills looming up in many states. Most of them were promoted on the promise of adding a Balanced Budget Amendment to the Constitution. I did not realize the extensiveness of this new drive until research specialist Andrew Carver uncovered con-con bills pending in 40 states. His first alert warned us that hearings on four con-con bills in Wyoming were imminent. So by the quick action of Freedom First Society friends, led by coordinator Nancy Dunn, a large number of letters to the Senate Rules Committee arrived just in time to kill Wyoming’s HB 75, HB 121, SJ 4, and HJ 4.

As a seasoned con-con warrior, I had confidence in our ability to defeat these bills in legislative hearings just as we had done in years past. But I soon discovered that the 2015 convention drive was not business as usual. We faced a whole new con-con game. This new drive is far better funded, made up of multiple groups with “conservative” credentials, and based on cleverly twisted constitutional phrases calculated to mislead Republican state legislators.

These combined con-con forces had spent much of the preceding year laying the groundwork for their 2015 legislative offensive. They had met frequently with state lawmakers to assure them that the solution to our bloated, oppressive, federal government was in their hands — that through Article V of the Constitution the states were empowered to call a convention to rein in this federal monster. All the states would need to do is apply to Congress for an “amendments convention” for the stated purpose. Upon the application of two-thirds of the states (34), Congress would be required to call the convention.

Well, that’s a pretty compelling promise, especially when backed up by false statements attributed to our Founding Fathers and by the dishonest assertion that a state could limit and control the deliberations and proposals of a convention.

The skilled con-con artists make highly emotional pleas for action against the very real problems of costly, overgrown government. Although they correctly identify a very serious problem, their amendment “solutions” are the supreme non-sequitur. They go after some implied flaws in the Constitution rather than government violations of the Constitution that are at the root of our overgrown government problem. I marvel that so many intelligent state legislators get caught up in such a senseless answer to Washington’s disregard for the Constitution.

Those who oppose the con-con in Republican states face bills endorsed by the Republican legislative leaders, and in many cases by the Governor. Consequently most of the reports we received on this year’s committee hearings indicated that that they were merely showcase exercises rather than honest evaluations of the issue. In Utah, for example, Senate hearings on HJR 7 allowed no more than two opposing witnesses who were allowed no more than five minutes each. In Oklahoma the opposition to HJR 1018 was allowed no more than two witnesses to speak for only 90 seconds each! Obviously, a “do pass” was pre-determined and the hearings were shameful pretenses.

North Dakota Surprise

In the year 2000 I worked personally with Senator Duane Mutch who took the lead in rescinding North Dakota’s 1979 con-con application. So when six new convention-related bills popped up recently, I contacted the senator (now retired) for help in blocking these bills.

We had friends on the Senate Judiciary Committee, but we discovered that the bills had been assigned to the Senate Government and Veterans Affairs Committee (GVA), where we could not expect committee members to be sufficiently informed to stand against these deceitfully promoted measures.

Off to North Dakota

I could hardly sit back and watch another blindfolded committee fall for the lies and false promises of the Convention of States Project and their associates. So I decided personally to attend the Committee’s hearings and testify.   It was a good thing I did, because I became the only opposition witness to take the podium.

At the state capital in Bismarck all the big con-con guns were present: Michael Farris of the Convention of States Project; Nick Dranias of the Compact for America; William H. Fruth of the Balanced Budget Amendment Task Force; Roman Buhler of The Madison Coalition, and other pro con-con big shots.

The first of the six bills before the Senate GVA Committee was HCR 3015, calling for a constitutional convention for amending the Constitution, ostensibly to add a Balanced Budget Amendment.

Virtually all testimony from the con-con men began with the usual emotional rant concerning the horrible situation in Washington, the gargantuan $18 trillion national debt, our perpetually unbalanced federal budget, and warnings of the imminent collapse of the United States. All diatribes of the con-con lobby followed this pattern, some lasting for ten minutes. The North Dakota House and Senate sponsors did likewise.

Falsified purpose of Article V

The local sponsors were followed by Michael Farris who came to the podium with a ridiculous fairy tale about the purpose of Article V. I have re-printed here exactly as given by Farris colleague, Ken Coccinelli:

“Our Founding Fathers gave the states a method of proposing amendments to our Constitution to rein in the power and jurisdiction of the federal government. Proud Virginian George Mason insisted that one day the federal government would outgrow its bounds, and when that day came, the states would need to have the ability to amend the Constitution to limit the power of the federal government. An Article V Convention of States is the specific recourse he and our Founders put in the Constitution for that purpose.”  

Not one word of the above statement is true. It is not simply an outrageous lie, but it is a ludicrous assertion that Mason or anyone else would make such an out of context statement during the Convention of 1787.

My turn at the microphone

When called to the podium, I referred the committee to a news item in which the Nevada Assembly had expunged its 1979 con-con on the basis of fraud. I said, “The Assembly had been promised that a convention could be limited to consider only a Balanced Budget Amendment. Later, when competent legal scholars proved that a convention could not be so limited, the Nevada Assembly realized they had been deceived, so in 1989 they expunged their resolution from the record. The bill before us, HCR 3015, makes the same false promise.”

I added that similar dishonest allusions are in the other five bills to be considered here today. “Since the same principles apply to all six resolutions,” I suggested “that in deference to the Committee’s time, I will oppose the similarities now and not take time to repeat them during each hearing.” The committee chairman, Senator Dick Dever, seemed to appreciate that.

I began by refuting the assertion that George Mason said Article V was created for the purpose of reining in abusive, out-of-control government. “George Mason did not make that statement or anything like it. The Constitution that the Convention had just written already reined in the power and jurisdiction of the federal government. That was the whole purpose of the Constitution. It would have been ludicrous for Mason or anyone else to make such a statement.”

The sovereign principle

I also considered it essential to explain to the Committee the sovereign role of a free people, for unless this were understood, I would not be able to refute several other heresies that were written into their HCR 3015 and commended by the preceding witnesses.  I explained that constitutional conventions are uniquely American, based on the reality that in a free country the people are inherently sovereign; meaning superior to the governments they create. Article V, for example, empowers the states merely to apply for a convention, not to set rules or limits on it. And once two-thirds apply Congress has only the authority to set the time and place for it. Why is this so? Because the convention is a sovereign assembly, a higher power than whatever it creates. The state is the creature of a convention and cannot dictate to its creator, the people.

In keeping with this principle I explained that delegates at the Convention of 1787 did not really operate a runaway Convention. “Yes, they violated their mandate from Congress, and ignored the rules of their state resolutions; but as proxies of the people they had every right to create a whole new government. This is what conventions have the power to do. And this is the power future conventions will have because they operate under the sovereign authority of the people.”

State resolutions do not dictate the terms of the convention

As an obvious device to allay the very real threat of an out-of-control con-con and its potential to make radical changes in our form of government, the state resolutions are filled with rules and restrictions intended to limit the convention to specified subjects. By recourse to the sovereign authority of a convention, I told the committee: “All of your precautions are worthless and will be tossed out at the convention door. The state legislature does not dictate to its creator (the convention), and that is what you are now attempting to do.”

Following this, I went through several of the amendments Mr. Farris thought a convention should consider and showed how worthless they would be as restrictions on the power of government. I concluded my testimony with, “Mr. Chairman, not one person in favor of a federal convention has identified a single flaw in the Constitution that needs to be corrected.”

The rebuttal of Mr. Farris

Michael Farris loves to cite his credentials, his great knowledge, his experience before the U.S. Supreme Court, and his extensive travels, which he said would include another trip to Idaho next week.

After bolstering his qualifications, Mr. Farris said, “I must compliment Mr. Fotheringham on his scholarship. He is one of few opponents of our project who understands that the 1787 Convention was not a runaway convention. But regarding his knowledge of George Mason, his scholarship does not go far enough. Had Mr. Fotheringham gone online and searched the University of Chicago Law Journal, he would have found the words which he claims George Mason never made.” Farris then quoted a statement by Mason from the Journal; but it was not even close to the statement he had made earlier about Mason’s reasons for the convention route of Article V.

Farris then asserted that the convention route of Article V was for amendments only, and did not authorize the same kind of convention as the Convention of 1787, and that the states did have the power to set its agenda. He added: “The legislatures have a solemn duty to use the Constitution to restore fiscal responsibility and save the country from certain disaster. That is why our Founding Fathers gave us Article V. Now is the time to use it and the states must have the courage to act now while there is anything left of our country.”

In closing, Mr. Farris took a shot at The John Birch Society and said he knew that “Mr. Fotheringham was engaged in some infighting, or had some problems with the organization and I think he is now affiliated with some other similar group.”

I don’t think that attempt to damage my credibility had the ill effect Farris had expected; for my friend, former senator, Duane Mutch, had served many years in the North Dakota Legislature while a member of the Birch Society, and he was highly respected by his colleagues.

Back at the podium  

Unlike the showcase hearings reported in other states, North Dakota treated me with fairness and respect. The chairman, Senator Dever, never denied me the opportunity to return to the podium and rebut the assertions of any con-con advocate.

Back at the podium I said: “Mr. Chairman, with all due respects to Mr. Farris, I did indeed search the website of the University of Chicago Law Journal, and the statement attributed to George Mason is not there. What Mr. Farris quoted from the Journal today is not the same false statement he has been circulating in his testimony here and around the country. He cannot produce evidence that George Mason ever made such a statement, or even hinted that Article V was created to rein in some future out of control federal government.”

The multiple bill strategy

Another scheme unique to this year’s con-con game is the multiple bill strategy.   Many states hosted several con-con bills that vary slightly, such as demanding a balanced federal budget, imposing term limits, or just limiting federal power. Passage of any one of these would be counted as a convention call and this provided opportunities for the advocates to quell objections to one bill by offering another as an alternative. The six bills considered in North Dakota were examples of the multiple bill strategy.

No committee votes were taken on the day of the hearings, so I left Bismarck feeling good about my defense of the Constitution and my response to the con-con men who had descended on the state in full force. When leaving the statehouse I stopped to shake hands with Mr. Farris. I was not kindly received.

One week later the North Dakota Senate Government and Veterans Affairs Committee voted on all six measures. Four of the bills, HCR 3014, HCR 3015, HCR 3016, and HCR 3017, were formal calls for a convention. Three of these con-con bills (HCR 3014, HCR 3016 and HCR 3017) were defeated. The other bill, (HCR 3015), which was not defeated, was all the con-con men really needed. The other two measures heard on the same day were incidental to the convention applications. HB 1138 was for the adoption of an interstate “compact for a balanced budget,” which passed, and HB 1441 was to provide penalties should the delegates depart from the states’ con-con agenda, which also passed. Had both of these last two measures been defeated, it would have had no effect on the result they were after. They wanted a con-con application under any pretext and, after passage of HCR 3015 in the full Senate, they got their wish.

In my opinion, passage of at least one bill is the cunning purpose of the multiple bill strategy. I regard all six of North Dakota’s Constitution-tampering bills to be merely excuses for plunging the Constitution into a modern convention. I testified against each measure on grounds that the Constitution is not defective and that a modern convention would likely destroy what remains of this wonderful United States.

Off to Boise, Idaho

I remembered what Mr. Farris said about going to Idaho next week, so I headed to Boise. I was determined not to lose anything by default — and just as I suspected — two con-con bills awaited hearings at the Idaho statehouse. I met Sunday evening, March 22, with old friends and learned that one of the bills, HB 67, was scheduled for a hearing the next morning.

This was a bill to establish the selection of delegates to a convention, but not specifically a call for one. So I decided to ask my friends to attend the Monday hearing and testify against the bill. On Monday morning my very capable friends stood boldly against HB 67 and the measure was narrowly defeated in a Senate hearing by a vote of 5 to 4. A fantastic development that led to a victory this year in Idaho.

The other bill, H.R. 18, was the actual con-con bill and a real threat. I was prepared to testify against that bill. However, in view of the exciting defeat of HB 67, I was told that the measure would likely not come up and would therefore die upon adjournment, which was only a week away. And that was what happened. Typically, a bill’s sponsor seeks to avoid outright defeat and instead await a better time and climate.

I did not see the angry Mr. Farris in Idaho. Considering his feeble offensive in Bismarck, it is entirely possible that he remained in ND to counter my charges of fraud. With no one around to dispute his fairy tales, he may have won privately the “do pass” motion on HCR 3015. Mr. Farris seems to have an inside track and high-level influence in the Republican states.

It is not business as usual in this year’s con-con fight. We now face a more corrupt and more sophisticated strategy for plunging the United States into constitutional chaos and for inflicting irreparable damage on the freedom and independence of the United States.

More than ever it is essential to build an informed constituency that will create sufficient pressure on state legislators to overcome the influence of the con-con lobby.

 

The Danger of a Convention of States

This article refutes the most common claims of an intense drive to stampede the public and state legislators into calling for a dangerous second constitutional convention (con-con) under the pretense of solving the very real problem of an out-of-control federal government.

The states cannot limit a con-con

The latest fad in con-con circles is the notion that Article V establishes a special breed of single-issue convention that empowers the states to limit the convention to a pre-set agenda. Con-con promoter Michael Farris asserts that an Article V convention is limited to consideration of single amendments and cannot, therefore, stray from its call and make wholesale changes in the Constitution.

Somewhere in his scholarship Mr. Farris has missed the point. In a free society the people are the supreme sovereign authority, and the power of a constitutional convention flows directly from the people. That is the power by which the states were created when freed from Great Britain. That is also the power that created the United States Constitution in 1787. Mr. Farris has it all backward; he has the creature (the states) dictating to their creator (the convention of the people).

When the people meet in convention they are under no obligation to abide by the terms of the state resolutions. That is why Article V establishes no procedures, other than to apply. Once two-thirds apply, Congress shall call a convention, and once the convention convenes, it is under the highest sovereign authority of a free country: the people. At that point the rules, procedures, and agenda are set by the convention. Neither Congress nor the state legislatures have any authority or control over a convention once it is called to order.

The idea that an Article V convention is something different from the Convention of 1787 is refuted by the official record. During the original Convention, when deputy Roger Sherman was making some incidental language changes in Article V, the record states:

Mr. Sherman moved to strike out of Article V, after “legislatures” the words “of three fourths” and so after the word “Conventions” leaving future Conventions to act in this matter, like the present Convention according to circumstances .1

In other words, they expected future conventions to be just like the present Convention which had power to create, alter, or abolish governments. Nowhere in the Records of the Federal Convention, or in the Federalist Papers, do the Framers imply that an Article V convention is anything other than the type of convention that was then underway in Philadelphia. Conventions are conventions whether intended for single amendments or wholesale changes.

A “limited constitutional convention” is an oxymoron.

Unlimited Power

The right of free citizens to amend or alter their form of government exists inherently with or without Article V. During the 1787 Convention James Madison stated that:

“The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the bills of rights that the first principles [the power of the people] might be resorted to.” 2

In 1967, Senator Sam Ervin was so intrigued by Article V that he thoroughly researched the subject and came to the conclusion that:

“… as We the People are the true de jure sovereign of these states, We the People cannot be held by anyone to any single issue once we convene our convention. If we so choose, the entire Constitution could be rewritten.”3

The Falsified Purpose of Article V

The con-con men have falsified the meaning and purpose of Article V. Here in bold type is a direct quotation from con-con collaborator, Ken Cuccinelli, who asserted that:

“Our Founding Fathers gave the states a method of proposing amendments to our Constitution to rein in the power and jurisdiction of the federal government. Proud Virginian George Mason insisted that one day the federal government would outgrow its bounds, and when that day came, the states would need to have the ability to amend the Constitution to limit the power of the federal government. An Article V Convention of States is the specific recourse he and our Founders put in the Constitution for that purpose.” 4

Every word of the above statement is false. Our Founding Fathers did not create Article V “to rein in the power and jurisdiction of the federal government.” The Constitution they had just written already did that. That was the reason for drafting the Constitution in the first place.

Moreover, “Proud Virginian George Mason” never said “one day the federal government would outgrow its bounds, and when that day came, the states would need to have the ability to amend the Constitution to limit the power of the federal government.” This is an outlandish lie. It cannot be found in the Records of the Federal Convention, or in any of the official founding documents. This fabrication is inconsistent with the main purpose of Article V, which Mr. Mason clearly explained in the official record:

“Col. [George] Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.” 5

James Madison also explained the purpose of Article V:

“That useful alterations will be suggested by experience could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the Convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable: and that extreme difficulty which might perpetuate its discovered faults. It, moreover, equally enables the general and state governments to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” 6

The Illegal “Assembly of State Legislatures”

Without the slightest concept of the principles of America’s convention system, or of the sovereign source of government-making, a private group of state legislators has undertaken the task of making the rules for a future con-con. Their deliberations are a sad illustration of the failure of American education. Under the name, Assembly of State Legislatures (ASL), they purport to emulate the 1786 Annapolis meeting in which the deficiencies of the Articles of Confederation were discussed and a date set for revising them.

The ASL resolution asserts that the state legislatures have “relinquished power to the national government that has upset the balance originally provided by the Founders in our federalist system….” That is not exactly what has happened. The states have not relinquished power. The federal government has usurped power in violation of its constitutional limits. The imbalance of power stems from federal encroachment, not from any abrogation of power by the states, and certainly not as a result of any structural defects. The purpose and power of a constitutional convention is to amend or rewrite the Constitution. It is obviously impossible to amend the Constitution to restore a provision that was never taken out of it. The delegated federal powers and the residual state powers, as established in the Constitution, remain in place exactly as they were in 1791 when the Bill of Rights was added.

Absent any concept of constitution-making principles, the men and women at the ASL are making rules that will be tossed out at the con-con door. We can only assume that the ASL’s rule-making charade is a device for deceiving state legislators, assuring them that they can apply with confidence for a structured con-con.

One of our nation’s top legal scholars, Charles L. Black, of Yale University Law School, pointed out that during our nation’s first 100 years all convention applications were for a general convention. This means that during the lifetime of our founders, and long thereafter, all state legislators had a clear understanding of the autonomy of the convention itself. Mr. Black believes that any state application that attempts to limit a convention to a specific topic is null and void. 7 The 1786 Annapolis meeting — on which the ASL hangs its hat — did not create the rules or procedures for the Philadelphia Convention. This was all done on May 25, 1787 after George Washington called the Convention to order.

State legislators who are invited into the ASL should challenge its premises and reject the bogus authority of a private organization to establish rules for a federal convention.

Even the Proposed Amendments are Phony

The con-con men, who profess so much love for the Constitution, never say they think the document is flawed, or that the framers goofed, or that the Constitution has outlived its warranty. Rather, they present a list of problems that they claim the Constitution has failed to address and which they insist can be remedied only by means of a new convention. Here are several amendments that Mr. Farris, founder of the Convention of States Project, thinks would be up for discussion in a forthcoming convention:

  • Balanced Budget Amendment
  • A redefinition of the General Welfare Clause
  • A redefinition of the Commerce Clause
  • A prohibition of using international treaties and law to govern the domestic law of the United States
  • Limitation on using Executive Orders to enact laws
  • Imposing term limits on Congress and the Supreme Court

A Balanced Budget Amendment

The con-con men blame the Constitution for the absence of a balanced budget provision; however, adherence to the Constitution is the original balanced budget mechanism. Obedience to the Constitution would quickly restore fiscal sanity and limited government.

Con-con advocates never identify the cause of our budget woes, such as the unconstitutional agencies that sap $billions out of the Treasury. If we are really serious about budget deficits, why not abolish everything for which there is no constitutional authority?

A simple majority in Congress could, for example, repeal the legislation that created the Department of Energy, the Environment Protection Agency, the Department of Transportation, and Foreign Aid, and we would instantly have a $200 billion surplus! It is nonsense to claim the Constitution needs a budget amendment when getting our nation back under the Constitution is the obvious remedy.

Term Limits for Congress

On this issue8 Alexander Hamilton said: “Nothing appears more plausible at first sight, nor more ill-founded upon close inspection.”9 The Constitution does not establish term limits for the simple reason that the Continental Congress had already had term limits and they did not work. Why? Because term limits gave the country a perpetual lame duck Congress. Under term limits a politician knew he would never have to stand for re-election; consequently, if the man was prone to corruption, he got his corruption over with in a hurry.

During the 1787 Convention, Gouverneur Morris objected to a proposed term limits clause by pointing out that, “The ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him ‘make hay while the sun shines.’” 10

Deputy Roger Sherman added that, “Frequent elections are necessary to preserve the good behavior of rulers. They also give permanency to the government by preserving that good behavior because it ensures their re-election…. In Connecticut we have existed 132 years under an annual government, and as long as a man behaves himself well, he is never turned out of office.”11

The con-con promoters study the same documents we study; therefore, we know that they know that term limits is a phony issue. They cling to the term limits ruse apparently because the idea has appeal and looks “plausible at first sight.”

The greatest term limit device ever invented is the ballot box.

Term Limits for Justices of the Supreme Court

The Constitution already has a term limit law for the judiciary. It is called impeachment. The fact that judges are rarely impeached when they should be impeached is no fault of the Constitution.

Most social problems come through cases that arrive at the Supreme Court on appeal, such as abortion and school prayer. Getting the High Court out of these sensitive moral issues does not require an amendment. It is clearly within the power of Congress to limit the appellate jurisdiction of the Supreme Court.12 And with respect to the abusive federal district courts, these are all the creation of Congress and can be controlled, changed, or abolished by the same simple majority by which they were created.

Redefining the Welfare Clause

It is hard to believe that Mr. Farris and his con-con collaborators never looked in an eighteenth century dictionary to find out what the framers meant by “welfare.” The 1787 definition is: happiness, success, prosperity.13 The word means to fare well. The General Welfare Clause has nothing to do with government charity or handouts. The Preamble simply identifies what “We the people” have done to “promote the general happiness, success, and prosperity, and secure the blessings of liberty….” The Constitution is perfectly perfect in this respect. The only “redefining” needed for this clause is a little less socialism in the classroom and a little more integrity in Congress.

Redefining the Commerce Clause

This clause was not misunderstood during the lifetimes of the Framers. Its purpose was well-known and repeatedly defined. It was also explained in the Federalist Papers, essays no. 22 and 44. The states had opposed the taxation of goods passing through their borders, and the monopolization of certain foreign imports. Expediting the flow of commerce was a high priority of the Convention, and every delegate understood its importance and exact purpose. It is no fault of the Constitution that the Commerce Clause is flagrantly abused, nor does it make sense to call a convention to clarify it. Every unconstitutional activity assumed under the pretext of the Commerce Clause can be overturned by a simple majority in Congress. No need to tamper with the Constitution.

Redefining the Treaty Clause

Presumably Michael Farris is referring to Article VI in which “… all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” He apparently thinks this means international treaties are superior to United States domestic law and sees this as a reason to amend Article VI. If Professor Farris taught his students that the Supremacy Clause was a defect in the Constitution, we feel sorry for the students and their misinformed teacher.

Under the Articles of Confederation treaties that were made by the individual states often encroached upon the federal authority or were in conflict with treaties made or wanted by the Confederation Congress.14 Federalizing the treaty power was, therefore, a high priority of the 1787 Convention in matters of trade, security, and diplomacy.15 Accordingly, the Constitution was written to make United States treaties the only valid treaties and to nullify all existing state-made treaties, regardless of any provision in the state constitutions or opinion of the state judges. Article VI makes federal treaties supreme over state-made treaties and conflicting state laws. Treaties do not supersede the Constitution and must in fact be made “in pursuance thereof” (Article VI, Paragraph 2). The Treaty Clause needs only to be understood and properly taught. No amendment is needed.

Limitations on Executive Orders

Since Article I, Section 1, clause 1 of the Constitution vests all legislative power in Congress, how could anyone think the President could legally make any laws under any title or pretext? Nothing in the Constitution authorizes “Executive Orders” or any other lawmaking excuse for the president. The fact that Congress quivers when the president violates his proper role does not mean anything is wrong with the Constitution. It simply means we should remember the president’s audacity, and the need for a little backbone in Congress, when we cast our votes in the next election. The Constitution cannot be amended to eliminate that which it does not allow.

Hey, this leaves the con-con men without one valid reason to mess with the Constitution! By any assessment, the above list of amendments for which the con-con men demand a second convention shows the utter absurdity (or worse) of their big, expensive, nationwide con-con campaign.

Not one of their proposed amendments could rein in an out of control federal government!

State legislators will be wise to examine these phony amendments, and then look into the manner by which such baseless proposals made their way into legislative language. They are worse than stupid because they appear as benign resolutions, but bring with them the potential of serious consequences for our country.

The Founding Fathers’ Refused to Call a Second Convention

The Framers faced numerous objections during the ratification process. The anti-federalists wanted, among other things, a Bill of Rights, a less powerful Senate, and a Congress with power to veto Supreme Court opinions. In order to add these and other features to the Constitution the ratifying conventions had urged the framers to call a second convention. In reply to that idea Alexander Hamilton said:

The reasons assigned in an excellent little pamphlet lately published in this city [New York] are unanswerable to show the utter improbability of assembling a new convention under circumstances in any degree so favorable to a happy issue in which the late convention met, deliberated, and concluded. 16

Deputy Charles Pinkney of South Carolina expressed similar concerns:

Nothing but confusion and contrariety could spring from the experiment. The states will never agree in their plans, and the deputies to a second convention coming together under the discordant impressions of their constituents, will never agree. Conventions are serious things and ought not to be repeated. 17 [Emphasis ours.]

James Madison vehemently opposed calling an Article V convention. In a letter to a member of the Virginia House of Delegates, George Lee Turberville, Madison wrote:

Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second…. 18

Does anyone believe Madison, Hamilton, or any of the Framers would see our day as a favorable time to call a convention? Or should we too “tremble for the result of a second?”

That Shaky Safety Valve

The con-con men are quick to assure state legislators that nothing can possibly go wrong because anything proposed in a convention must be ratified by three-fourths of the states. They ask:

Would 38 states ratify any bad amendments?

They already did! 19

They ratified the Fourteenth, Sixteenth, Seventeenth, and Eighteenth Amendments, all of which shifted power to the central government at the expense of the states. All of these bad amendments were promoted by the White House and the press. We may be assured that our pernicious mass media could never pass up such a golden opportunity to promote radical social change.

The Convention of 1787 got around its ratification problem by changing the number from thirteen states to nine. If a new con-con proposes anything doubtful, they too could change the ratification rule from 38 states to 26 — or perhaps ratification by the governors, or by sanction of the President. One thing is certain: If the con-con produces harmful or unwanted changes, the opposing states will never have a chance to veto it.

They Tricked Us In 1933

When the time came to repeal the Eighteenth Amendment (prohibition), Congress and the liquor lobby knew that the southern Bible-belt states, and a few of the western states, would never ratify it. They were correct. The repeal amendment20 would never have been ratified if sent in the normal way to the state legislatures. How did they get around this? They resorted to the option of ratification by public conventions. In Utah, for example, they held a statewide vote on the issue. Then from this tally, 27 voters who favored repeal were selected for the ratifying convention and unanimously approved repeal. Amazing! This trickery cannot be over-emphasized, for clearly 97 percent of Utah’s citizens opposed the amendment, and yet the non-drinking Mormon state “ratified” the Twenty-first Amendment to repeal prohibition.

Beware. If an unwanted amendment or corruption of the Constitution came out of a second convention, does anyone believe the opposing state legislatures would ever see it? There is no way to prevent a modern convention from changing the ratification process, or even skipping it entirely. There is no security in the assurance that “38 states” will keep harmful alterations out of our Constitution in a modern constitutional convention.

When it’s all said and done, the big push for a con-con is fluff, falsehood, and bluster.

The most ingenious legal scholar is incapable of writing an amendment that grants more freedom than is guaranteed by a fully enforced U.S. Constitution.

Political and economic abuse will end — and the Constitution will be safe — when the American people get their brains and their bodies back to the ballot box.

Notes

1. Farrand, Records of the Federal Convention of 1787, Vol. II, p. 630.
2. Farrand, Vol. II, p. 476.
3. Quoted in The Los Angeles Times, January 15, 1992, p. B7.
4. From a letter written by Mr. Cuccinelli addressed to voters in the state of Virginia.
5. Farrand, Vol. I, p. 202.
6. The Federalist no. 43.
7. Stated by Mr. Black in testimony before the U.S. Senate Subcommittee on the Constitution, September 29, 1979.
8. The founding documents define term limits as “ineligibility for reappointment.”
9. The Federalist no. 72.
10. Farrand, Vol. II, p. 33.
11. Farrand, Vol. I, p. 423.
12. U.S. Constitution, Article III, Section 2, Paragraph 2.
13. Definition of “welfare” found in Perry’s Royal Standard English Dictionary, Worcester, MA, 1788.
14. Farrand, Vol. I, p. 164.
15. Benjamin Franklin’s Plan of Union, America, Vol. 3, p. 47.
16. The Federalist no. 85.
17. Farrand, Vol. II, p. 632.
18. Rutland, R. ed. The Papers of James Madison, Vol. II, University of Virginia Press (1977), p. 330.
19. At that time three-fourths was 36 states.
20. The Eighteenth Amendment was repealed by the Twenty-first Amendment.

Wake Up, Little Chickens!

A talk by Mrs. Julianne Young delivered April 11, 2014 at a Freedom Rally in Pocatello, Idaho.

A cry jolts the still, sleepy morning to life. “There’s a skunk in the coop!” Dad scrambles for his gun, bed-heads crowd at the window, and bare feet streak across the dewy lawn. Dad cautiously peers ‘round the doorway while we all hold our breath. Two feathered friends lay dead in the straw with gaping, bloody wounds, while a dozen others mill about expressing their distress in a chickenish fashion, upset and oblivious all at once.

A white stripe shrinks into a dark corner where murderous, beady little eyes watch and wonder what we will do next. One chicken calmly saunters past the shadow, looking the skunk over quizzically.

That skunk will be hard to hit in the shadows. It will be him or Dad! Then—BLAM! BLAM! The skunk stirs and an acrid, skunky smell fills the air. One final BLAM! All is still. We run, choking and crying! But the chickens haven’t even noticed. They hop and pick their way through the carnage, gossiping and clucking.

A skunk lurks in society’s coop as well. He cowers in vague generalizations, rarely showing his true, deepest colors. His tidy fur coat and voluptuous tail proclaim world peace, prosperity for the masses, and personal fulfillment. He makes black, white, and white, black. He boldly invites all to embrace him, assuring us that his aims are irreproachable and mocking those who hesitate as old-fashioned, close-minded, naive, or bigoted. His odor permeates the media, our politically correct communications, and our public schools. He has been working, day and night, for decades in a deliberate and well-organized way to undermine God-given liberty and bring about a self-proclaimed silent revolution through “countless small adjustments.”

Many see troublesome symptoms and strut around expressing chickenish sentiments. They pick through the mess, decrying it— a rising divorce rate, fatherless children, STDs, lengthening prison roles, skyrocketing debts, a teetering national economy, illiterate high school graduates, and rampant drug and alcohol abuse. Others are too cauterized by their ball games, their entertainment, and the pursuit of the almighty dollar to notice that anything is happening at all. Surely, if they ignore it, it will go away. A third group calmly saunters up to the shadow, admiring its fierce, independent nature and the voluptuous coat they see there.

The skunk is real, and he is dangerous. His velvet coat is called humanism. His velvet claws are socialism or communism, which are “as alike as two peas in a pod.” He is not just another step in the political evolution of America, nor is the carnage about him the result of stupidity or clumsiness. He is cunning, consistent, well-organized, and deliberate. If you want to understand better what I am telling you pick up a copy of Vance Smith and Tom Gow’s well-documented book, Masters of Deception. There are copies at the Freedom First Society booth. The skunk’s self-declared intent is to destroy and devour, and as long as the chickens tolerate or ignore his presence, they are in great danger. Complacency and Compromise are the keys to our sure demise.

Wake up chickens! Stop picking through the carnage and open your eyes to the deliberate, organized, well-funded skunk. Stop giving him the authority to educate our chicks, provide for our physical needs, and dictate the future of our nation. Stop voting for skunks that don chicken headdresses and then vote for the conservative path to the destruction of our God-given, inspired Constitution.

That Constitution is our protection. It is the walls of our coop! It is a binding contract between God, the people of America, and those entrusted with public office. It means what it meant at the time we entered into it. No court on earth has the right to re-define the terms of that contract. Even the Supreme Court is inferior to the Constitution. It was not even a party to the initial contract and only exists under the authority of that sacred document. It is absurd to even suggest that a creation could be given the power to define their creator.

No politician on earth has the right to negate the provisions of the Constitution by supporting unconstitutional programs or policies. The Freedom First Society has put together an excellent online voter guide at freedomfirstsociety.org that assesses voting records, not by some conservative index, but based on the Constitution. This voter guide screens out posturing or party-line votes which mean nothing, but are often cast just to make a politician look a little more chickenish. It’s time we woke up to the reality that compromise is not a virtue when one is compromising away the lives, liberties, and properties of the American people, now and for generations to come.

Lastly, we cannot afford to tolerate continued support for Constitutional amendments. A Constitutional Convention is one of the greatest threats to that sacred document, and no Constitutional amendment is worth that risk. The Constitution is not broken and giving the skunks the authority to remodel the coop will never provide more security! Any politician that will compromise the security of the coop in this regard is not a true friend to the Constitution or to the chickens, no matter how conservative they are or how good their remodel project sounds.

Wake up little chickens! There is nothing a skunk fears more than truth. Get educated! Get organized! (The Freedom First Society has a great little book called Organize for Victory!) Take aim and FIRE!!! Sooner or later it will be the skunk or us. May God bless us with the wisdom to spot him, the courage to face him, and the ability to win. Thank you.

Export-Import Bank Renewed

The House voted Wednesday [May 9, 2012] to reauthorize the Export-Import Bank [H.R. 2072] for another three years, permitting the agency to continue providing hundreds of millions of dollars in trade assistance to U.S. firms….

“All 183 Democrats voted for the bill, along with 147 Republicans, but 93 GOP lawmakers voted against it.”
 — “Export-Import Bank reauthorized by House; Senate expected to act soon,” Washington Post (online) 5-9-2012

FFS: Similarly, on May 15th the Senate voted overwhelmingly (78 to 20) to send the House bill as passed to the president. No Democrats opposed the reauthorization. Republicans were split: 27 to 19 in favor.

The charter for the internationalists’ creation, the Export-Import Bank, was set to expire on May 31st. The Bank was also pushing against its authorized lending limit of $100 billion. In the past, the periodic renewal of the Bank has encountered little opposition, but this time considerable principled opposition arose.   Nevertheless, given the Insider influence on Congress, the outcome should not have been in doubt.

Congressional Quarterly Today’s description of the battle should have raised questions (such as why any Republicans would support a top priority of the Obama administration at this time):

“A top priority of the Obama administration, renewing the [Export-Import] bank’s charter divided Republicans who have been caught between their allies in the business community — who desire passage — and free market advocacy groups that oppose government-backed export financing as a form of corporate welfare.” — “Deal Sets Up Passage of Ex-Im Bill,” CQ TODAY ONLINE NEWS, 5-14-2012

FFS: The above report and others referred to the pressure from the U.S. Chamber of Commerce and the National Association of Manufacturers, which were supporting this federal intervention in the free market. But no mention was made of the fact that the Bank supports the internationalist agenda of boosting socialism abroad and has operated in the past to aid America’s enemies.

A prime example were the loans in the 1970s to the Soviet Union to finance the building of the world’s largest truck factory on the Kama River. At that time the Export-Import Bank joined with Chase Manhattan in an even split to finance 90 percent of the project, which subsequently produced trucks supporting the Soviet invasion of Afghanistan.

Neither was any mention made in much of the media coverage of the fact that the powers of the Ex-Im Bank are not authorized by the Constitution.

Although the dollar amount (the lending limit is scheduled to increase from $100 billion to $140 billion in stages), the votes are nevertheless revealing of the internationalist grip on Washington, which transcends party.

Latest Assault on our Civil Liberties, The NDAA

Fundamental individual liberty and rights are central to our Constitution, and protection of the same from governmental infringement. Yet we see on a nearly daily basis, attempts by sometimes well-intentioned politicians, locally and nationally, to trample those fundamental rights in the name of a “greater good.”

The latest case in point, the National Defense Authorization Act (NDAA) passed Congress with broad bi-partisan support, (proving once again that there is little difference between the two major political parties), and will reportedly be signed into law this week by President Obama.

The Act states, “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.” And just who are those “covered persons” that can be so detained? Section 1031 seems innocuous enough by identifying anyone who had a part in the 9/11/01 attacks or “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities,” against the U.S. But then this Trojan Horse language follows, “including any person who has committed a belligerent act.”

A broad interpretation of “belligerent” includes “hostile and aggressive,” and is not limited to the more specific acts of war, which the drafters of the legislation may have intended. This language swings the door of interpretation wide open to include any threatening, antagonistic, contentious, or confrontational conduct perceived to be a threat to the nation. It is not beyond the realm of possibility to see this president or any future president use this provision as justification for military detention without due process of Tea Party protestors or Occupy Wall Street activists.

The Fourth Amendment to the Constitution has served to enforce due process and habeas corpus by preventing unlawful arrest and detention, yet this one Act (NDAA) grants virtually unlimited power to the president to detain potential “terrorists” indefinitely, with all the ignominy of a military Guantanimo-like detention. And one of the most striking components of the legislation is that the “battlefield” of the “War on Terrorism” is expanded to include the homeland of the United States of America.

The Act, itself a violation of law since it was drawn up, debated, and passed in closed committee sessions without a single hearing, is clearly a violation of posse comitatus, established in 1878 which proscribes the use of the military on domestic soil to enforce the laws of the land.

While I rarely find myself in agreement with the American Civil Liberties Union (ACLU), on this issue we’re of one accord. In their write-up of the NDAA they averred the Act “will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians.” They continue, “The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.”

Section 1031 of the Act concludes with an attempt at assuaging civil libertarian concerns by stating, “Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” It may not be “intended,” but the act does precisely that.

Section 1032 further attempts to mitigate the far-reaching affects of the legislation by stating that the, “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” While not “required,” it clearly leaves the door wide open for the possibility of military detention of citizens.

For students of history, this legislation eerily has a parallel in the Enabling Act of 1933 in Germany, where rights enumerated in the Weimar constitution were repressed or precluded by expanded central government control. The subsequent staged attack on the Reichstag or parliament building, led to the Reichstag Fire Decree, finalizing the transition of Adolph Hitler from Chancellor of the Republic, to Führer. Is that all it would take to make that final transition here?

At what point do we as citizens reject and stand up against such trampling of civil liberties? There was so much disapprobation over the Patriot Act, and this goes so much further. It’s impossible to not see another parallel from 20th century Germany in the words of Martin Niemoller, “First they came for the communists, and I didn’t speak out because I wasn’t a communist. Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist. Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew. Then they came for me, and there was no one left to speak out for me.”


AP award winning columnist Richard Larsen is a regular contributor to the Idaho State Journal. He is also President of Larsen Financial, a brokerage and financial planning firm in Pocatello, Idaho, and is a graduate of Idaho State University with a BA in Political Science and History and former member of the Idaho State Journal Editorial Board. He can be reached at [email protected].

 

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