We Don’t Need an Article V Convention to “Clarify” Our Constitution!
By Publius Huldah
Those pushing for the so-called “convention of states” 1 say we must amend the Constitution because the people in Washington “don’t understand it”.
Rubbish!
Our Constitution is so simple that Alexander Hamilton expected us to be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority”; and he said the people are “the natural guardians of the Constitution” (Federalist No. 16, next to last para).
Well then, if our Constitution is something The People are expected to know and enforce; is it plausible to assert that the Representatives we send to Washington – and even supreme Court Justices – are incapable of understanding it?
Justices on the supreme Court have been perverting our Constitution for a long time. Do they do this because they are so stupid they don’t understand our Constitution? Of course not! They violate our Constitution because they claim the right to impose their own personal views on the rest of us.
As every American over the age of 10 should know, the powers our federal Constitution delegates to Congress and the President are limited & defined – they are “enumerated”.
So! Progressives on the supreme Court had to find a way to get around the limitations imposed by the enumerated powers. And they did it by perverting three clauses: the “interstate commerce”, “general welfare”, and “necessary and proper” clauses.
However, a quick look in The Federalist Papers shows the original intents of these clauses. We don’t need a convention to draft amendments showing what these clauses mean – just look it up in The Federalist! But! You don’t have to – I’ve already done it – and here it is: 2
The “interstate commerce” clause (Art. I, §8, cl. 3)
Webster’s 1828 Dictionary says “commerce” is the buying and selling of goods.
In Federalist No. 22 (4th para) and Federalist No. 42 (9th & 10th paras), Hamilton and Madison explain the primary purpose of the clause: To prohibit the States from imposing taxes & tolls on merchandize as it is transported through the States for purposes of buying and selling.
The “general welfare” clause (Preamble & Art. I, §8, cl. 1)
Webster’s 1828 Dictionary defines “welfare” as:
“2. Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government; applied to states.”
It has nothing to do with handouts, public relief, or the feds doing whatever they think is a good idea.
In Federalist No. 41 (last 4 paras), Madison points out that Art. I, § 8, employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the “general phrase”. It is “error” to focus on “general expressions” and disregard “the specifications which ascertain and limit their import”; thus, to argue that the general expression provides an unlimited power is “an absurdity”.
So yes! The powers of Congress over the Country at Large really are limited primarily to those few listed at Art. I, §8, clauses 3-16.
Our Framers understood that “general Welfare”, i.e., the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government, was possible only with a federal government of strictly limited powers. [Let that sink in.]
The “necessary and proper” clause (Art. I, §8, last clause)
This clause delegates to Congress power to pass all laws necessary and proper to execute its declared powers (Federalist No. 29, 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article”; a power to do something must be a power to pass all laws necessary and proper for the execution of that power, and thus the clause is “perfectly harmless”, a “tautology or redundancy” (Federalist No. 33, 2nd & 3rd paras). Madison writes to the same effect in (Federalist No. 44, under his discussion of the SIXTH class of powers).
So the clause permits the execution of powers already delegated and enumerated in the Constitution. No additional substantive powers are granted by the clause.
Learn the enumerated powers delegated to Congress & to the President. With our Votes & Nullification of unconstitutional acts, let’s enforce the Constitution we already have. Don’t let others change or replace it! PH
Endnotes:
1 The term, “convention of states”, is deliberately deceptive. The only convention for proposing amendments is the one at Article V of our Constitution – and Congress has the power to “call” it. And since Article I, Sec. 8, last clause, vests in Congress all powers “necessary and proper” to carry out its power to “call” the convention, Congress decides all organizational issues, such as, the number and selection process for delegates.
But once the delegates (whoever they turn out to be) are seated, neither Congress nor the States have any control over them. The delegates can do whatever they want. They can propose a new Constitution with a new method of ratification. Here are two Constitutions already waiting in the wings: The “Constitution for the New Socialist Republic in North America”, which you can read about from their own website HERE and from JBS HERE; or the “Constitution for the Newstates of America”, which you can read HERE. Do you think that any of the delegates (remember, you have no idea who they will be), can be bribed to introduce and vote for one of these proposed constitutions?
Disabuse yourself of the false notion that “the States have to ratify anything the convention does”. That is the second biggest lie ever told: The proposed “Constitution for the Newstates of America” is ratified by a Referendum called by the President. The States, as political bodies, never get the opportunity to reject it – they are dissolved and replaced by regions answerable directly to the new national government.
The ONLY precedent we have for an “amendments convention” is the federal convention of 1787 which drafted & proposed our existing Constitution.
HERE is the Resolution, made by the Continental Congress on February 21, 1787 (p 71-74), to call a convention to be held at Philadelphia:
“…for the sole and express purpose of revising the Articles of Confederation”.
The delegates ignored their instructions from the Continental Congress (and from their respective States) and wrote an entirely new Constitution – the one we now have. Furthermore, whereas Article XIII of the Articles of Confederation (LINK) required all of the then 13 States to ratify Amendments to the Articles; Article VII of the new Constitution required only 9 of the 13 States to ratify the new Constitution.
Do you see?
2 Our People don’t have a clue about what these 3 clauses mean. So YOU learn the original intent. On social media, start teaching that original intent to The People. Help turn on the lights in their minds. PH
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PUBLIUS HULDAH
Publius-Huldah's Blog 
I agree that is very plan and easy to understand however we have a president that either doesn’t have the capacity to understand or doesn’t care which means he needs to be impeached for nor full filling he oath of office to protect and defend it . So go explanation it to the constitutional Lawyer that’s in the office of President in name only
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It was the American People who are so ignorant of our Declaration of Independence and Constitution that THEY elected a President who is ignorant and contemptuous of those Documents; and they elect to Congress people who are ignorant and contemptuous of those Documents.
The problem has ALWAYS BEEN THE AMERICAN PEOPLE. They wanted to be ignorant, they wanted to live at other peoples’ expense, and they wanted to be “free”.
You can’t fix that by changing the Constitution.
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[…] the purposes of the “interstate commerce” clause are (1) to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and (2) to permit the federal government to impose duties on imports and exports, both inland and abroad. [Publius Huldah] […]
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I am not interested in the process of amending a constitution that has been ignored, trampled on, and disregarded. Unless new amendments specify punishments not controlled by the existing three branches of government then we can expect the same old, same old. Further any amendments should clarify citizenship, who is to receive protection of the law, and who shall be punished for the failure to fulfill their obligations whther it by malice or ignorance in the US government.
I would also like to see the agents of the government be directly responsible for their actions if in violation of the law. For example if someone directs that the immigration laws not be enforced and an illegal alien commits a crime then that official should be liable as an accomplice to the crime. An official that chooses to ignore one party commiting a crime while prosecuting another should be liable to suit.
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I suggest the wiser course of action is this: For the American People to learn our Declaration and Constitution and then grill candidates for public office on their knowledge of the Declaration and Constitution. And vote accordingly. If they are not willing to do this, then we will fall.
The matters you addressed do not need clarification – and we do not need the new laws you suggest. Our problem has NEVER been that the Constitution is unclear or that we don’t have enough laws.
Our Problem is that for over 100 years, Americans have not troubled themselves to learn our two Founding Documents. THAT is the Problem. You can’t fix that problem by making new laws imposing new punishments on people who ignore the Constitution!
WE elected all those ignorant and criminal phonies who violate the Constitution. WE ARE THE PROBLEM! WE ARE A MORALLY BLIND & IGNORANT PEOPLE.
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PH, you have a way of cutting thought the crap! It really is not that complicated, is it?
Learn and follow the documents as they were written.
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Mike! Hello!!!
Yes, I do cut thru the crap. That is my main gift. All this stuff is so easy when you just look for the original intent. And usually, you can find that original intent after spending 5 minutes with The Federalist Papers.
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I agree that new amendments to the US Constitution aren’t needed to “clarify” the original document. However, regardless of the process that might be used to propose new amendments (i.e. by Congress or by an Article V Convention), I do feel a few would be beneficial. The two that immediately come to my mind are: 1) An amendment to repeal the 17th Amendment (so Senators are once again appointed by States to represent their individual interests instead of those of the individual citizens); and 2) An amendment to limit the length of time an individual may serve in Congress. In the latter case, this would prevent elected individuals from amassing an inordinate amount of political power over a virtual lifetime of continued reelections facilitated by campaign funding that almost always favors the incumbent. As I recall, even until the late 1800’s, it was unusual for a congressional representative to serve more than two terms. That’s exactly the opposite of what happens today!
If the above two suggested amendments are worthy of consideration, I would argue that the likelihood of either being proposed directly by Congress is slim to none. (After all, how many politicians do you know who willingly limit their own power/careers/options?!) In that case, would not an Article V Convention be the only authorized process by which these amendments could ever be even proposed, let alone ratified? In my opinion, and based on some limited information I have read concerning the debates that occurred at the Constitutional Convention, this was the very reason for the second (Article V Convention) amendment process having been included in the text of the original Constitution.
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Slap my hand, Aaron! I got sidetracked.
1. Yes, We were very foolish to fall for the Progressives’ arguments and ratify the 17th Amendment. We should repeal it. The way to repeal is with another amendment repealing it – just as the 21st Amendment repealed the 18th. But the only SAFE way to do is to get Congress to propose it to the States.
2. HERE IS THE PROBLEM IN THIS COUNTRY: The American People have no idea what the Constitution says – they can’t recite the enumerated powers by heart – and so they elect to office politicians who also don’t know what the Constitution says and who don’t care. WE ARE THE ONES WHO ELECT AND REELECT TO CONGRESS [and to our state governments as well] POLITICIANS WHO TRAMPLE ALL OVER THE CONSTITUTION.
CONGRESS is not the problem. The problem is the ignorant and morally blind American People who put them all in office and who keep re-electing them! Because of our own IGNORANCE of the Constitution, we are unable to hold politicians accountable. We reward them for their constant violations by re-electing them.
3. I have written a short paper on term limits which explains the REAL problem and the real solution: https://publiushuldah.wordpress.com/2010/04/02/term-limits-treating-the-symptom-not-the-disease/
4. Now, let’s look at an Article V convention: A massive campaign of lying about the Article V convention is going on in this Country.
It is NOT TRUE that the purpose of the convention method was to give the States the power to control a method of proposing amendments. One delegate at the Convention of 1787, George Mason, said words to this effect. BUT he was in the minority, he did NOT get his way [a method of proposing amendments which the States controlled] and he REFUSED TO SIGN THE CONSTITUTION.
Article V delegates to CONGRESS control over both methods of proposing amendments. Congress “calls” the Convention when 2/3 of the states “apply” for it. A “call” is a legal term of art! CONGRESS has extensive powers over all the mechanics of setting up the convention, determining how delegates will be selected and how voting will be apportioned. We KNOW this because Article I, Section 8, last clause, delegates to Congress power to make all laws “necessary and proper” to carry out its power to “call” the convention. Furthermore, as Congress has in the past made preliminary preparations for an Article V convention, it has demonstrated that it sees its powers over setting up the convention as exclusive and extensive. My upcoming paper addresses this point. But in the meantime, see this Report from the Congressional Research Service which shows that this is how Congress has historically viewed its role over an Article V convention. It’s long – so I quote key provisions in my upcoming paper. https://publiushuldah.files.wordpress.com/2014/09/crs-report.pdf
If you REALLY want to know what happened at the federal convention of 1787, study this: https://publiushuldah.wordpress.com/article-v/
I went thru Madison’s entire Journal of the federal convention of 1787 – page by page – and pulled out all references to what became Article V. I show it from start to finish.
My hyperlinks to Madison’s Journal are broken, because after I wrote that, the website to which I linked, changed their format! So now, I have to find another online source and make new hyperlinks. However, if there is one date which you particularly want to see and read for yourself, let me know and I’ll dig up a working hyperlink for you.
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Webster’s 1828 Dictionary is not authoritative. Neither is the Federalist. Get your sources from things written before 1787 and read by the Framers before the Constitutional Convention. ….[rest of comment deleted]
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You must try not to be so dogmatic & close-minded. If you continue to permit what you already believe to be the standard by which you judge new information, you will NEVER correct the errors in your own understandings. PRIDE is the worst sin of all, I expect.
1. Any lawyer knows that it is proper to cite Dictionary definitions as authority. In my 45 or so years of being a lawyer, I have never seen a judge object. I cite Webster’s 1828 because it is readily available and shows the understandings of word meanings during our early days.
2. Thomas Jefferson and James Madison thought that The Federalist Papers were the best evidence of the original intent of the US Constitution.
See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia (Thomas Jefferson & James Madison were present) where they voted to make The Federalist Papers one of the texts books for the Law School: http://xtf.lib.virginia.edu/xtf/view?docId=2006_04/uvaGenText/tei/bov_18250304.xml&query=true
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Reblogged this on Jesus' Compassion 4 America! (& the world!)
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Only the U.S. Supreme Court can overturn Supreme Court precedents. They can only take about 80 of the 8000 cases submitted to them each year. There are over 200 critical wrong precedents, but more than 4000 wrong precedents based on or connected to those that would also have to be overturned. If they took no other cases but those that would allow overturning of every wrong precedent, it would take them 50 ears. In the meantime, there would be hundreds of thousands of cases in which the feds would be enforcing those bad precedents before they were overturned, which would give rise to still more litigation.
The courts are a bottleneck for constitutional reform, even if they were disposed to make it, and it would take 60 years and the retraining of three generations of lawyers to get them to that point. Litigation will never get the ball across the goal line.
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States can nullify unconstitutional supreme court decisions. Private citizens can also nullify them.
It is very bad statecraft to elevate federal court decisions to such a high status that a CONSTITUTIONAL AMENDMENT is required to negate them. You aren’t thinking this thru. You are raising judges’ opinions to the status of “the supreme law of the land”. Very bad policy.
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Some citizens and states can resist wrong decisions by refusing to cooperate with them, but 99% of everyone else will cooperate. Nullification only comes if almost everyone resists. If we could achieve that, we could prevent the wrong decisions by electing different officials. Every try doing that? I try every election, and guess what — most of the people are not with us.
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Nullification is not so difficult! All it requires is an unconstitutional law and a People with a spine. Rosa Parks & MLK nullified the Jim Crow laws, and they were successful. The States could easily nullify the supreme Court’s usurpations of the 14th Amendment – ignore them! The States could easily nullify the supreme court’s usurpations respecting prayer and the 10 Commandments in the public schools – ignore them! The States could easily nullify all federal gun control laws and ATF rules. THIS is an issue which resonates with many and is a good place to focus nullification efforts.
What we lack is a People with a Spine.
What we have more than enough of is people who say nullification is unlawful, not feasible, or won’t work.
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How would you word an amendment to make it mandatory that the elected politicians, from that point forward, must follow the strict language of the Constitution? If they ignore, and they do so most of the time, the present Constitution, how does expanding the document all of a sudden make them follow it in the future? As already written, the document is just fine as it was written.
Besides, how much time do you believe we have before it is too late to correct course? If we are not already past that crossroads, we must be standing in the middle of the intersection and staring down the wrong road. The process of a convention, proposed amendments, ratification, etc.; would take years even if it all went perfect.
An immoral bunch of politicians WILL NOT follow the law of the land, no matter what it says or how it is amended. Without a thorough purging of the Federal Government, this will not be corrected. Short of that, the best we can hope for would be for individual states to rise up and protect the people of their own state through nullification of unconstitutional laws and rules.
I do not see this ending up with everyone holding hands and swaying to the music in unison.
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Hello, dear Friend!
It is impossible to word any such amendment in a fashion that elected & appointed officials will obey it. They ignore the Constitution we already have – and have done so for 100 years. They all took Oaths to obey it; and they all violated their oaths. And they all got away with it b/c we keep re-electing them! We don’t hold them accountable.
Our Framers told us what to do to those who violate the Constitution: Impeach them if they are in the Executive or Judicial Branch; and defeat them in the next election if they are in the legislative Branch.
I fear it is too late for a peaceful Restoration. The American People are too stupid, ignorant, and immoral. It seems as a tidal wave of stupidity is sweeping over our Land. Tennessee refused to nullify obamacare – if they did, they’d lose $6 BILLION in federal funds. Well, those TN legislators [who preen self-righteously about their outrage over the national debt] didn’t want to lose that $6 BILLION in federal funds.
So I’d say, Get Ready for really hard times ahead.
But then, I can’t see the future – who knows what may happen?
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Amendments are not for making elected officials do anything. Refusing to elect them is the way to do that. But court decisions are seldom the leading issues in any election campaign, except perhaps for a few judges, and then the popular position is usually unconstitutional itself.
The amendment solution for the public choice problem is to do away with elections, and use sortition, or random selection, the we we are supposed to select juries. A similar method can be used to select legislators and executive officials, and in many cases, without an amendment.
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Your proposal would require an Amendment to the Constitution [as you have seen] b/c it violates the Republican Principle that laws are made by those elected (directly or indirectly) by The People. Article IV, Sec. 4 guarantees a Republican Form of government.
I suggest the better course of action is to return to the system of elections our Framers enshrined in the Constitution we have:
1. The STATES determine qualifications for voters : Article I, Sec. 2, clause 1.
2. Respecting the federal government, The People elect only the Representatives to the House of Representatives in Congress.
3. The State legislatures elect the Senators to the Senate in Congress.
4. Specially selected ELECTORS are the ones who make the actual decision on who will be President.
I explain this original system – and the 12th Amendment – in my paper here: https://publiushuldah.wordpress.com/2012/02/09/national-popular-vote-goodbye-sweet-america/
The suffrage should be restricted to the relatively wise – States could ensure this by establishing [and finding the spine to enforce] qualifications for voter registration. In my own long life, I remember when one had to be a property owner – “freeholder” – to vote on some issues or elections. States still have the retained power to do set voter qualifications! All that the 4 voting amendments forbid States from doing is denying voter registration on account of race, sex, non-payment of the tax, & being only 18 years old.
I have yet to see the gimmick which is better that the system our Framers gave us.
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Shockingly, it doesn’t sound as though you have read Article V, from your editorial above. It clearly states that…”or, on the Application of the Legislatures of two thirds of the several States , shall call a Convention for proposing Amendments……when ratified by the Legislatures of three fourths of the several States……”. Also, and you know this, the Federalist Papers are nothing more than editorials – not law. I respectfully disagree with your evaluation of the movement to add amendments to our Constitution by the States.
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You “disagree“? Your “agreement” or “disagreement” is not the Standard. The Standard is Truth – not your subjective and uninformed opinions.
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I agree with you on this, a Constitutional Convention is nothing more than a cop out for an electorate that is to lazy to solve themselves. There is nothing wrong with the Constitution, the problem is with the elected and appointed politicians that have refused to follow the law of the land. The enumerated powers granted by the Constitution to the branches of government are being totally ignored to the point of power is whatever they want it to be. We do not need to change the Constitution, we need to change the politicians.
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In Oregon a statute in the General Laws of Oregon (enacted in 1923) and codified at ORS 336.057 calls for the teaching of the Constitution of the United States and United States History beginning in the eighth grade and all 4 years of high school and 4 years of college. I personally conducted a survey of eight schools in the greater Portland area and found that not one of them had a curriculum of Constitutional Studies as mandated by the General Laws of Oregon.
A prerequisite before police officers, sheriffs and sheriff deputy’s, State elected and/or appointed officials including Oregon’s Governor and the Representatives in Congress assume their elected/appointed position is to take an oath to support the Constitution of the United States and the Constitution of Oregon.
Now, the questions in my mind are: 1) If a student has not been taught the Constitution as mandated by Law has that student fulfilled the requirements of a high school or college diploma? 2) If said student has not been taught the Constitution does he/she know the Constitution? 3)If the aforementioned student seeks employment where knowledge of the Constitution and/or a high school diploma is required should he/she be hired or elected to that particular position? 4) If the answers to #’s 1, 2 and 3 above are No and said individual above seeks employment stating that he/she has a H.S. or College diploma would that not constitute fraud? If said individual above seeks or is employed as a police officer, sheriff deputy, or an elected official and will or has sworn or affirms that he/she will support the Constitution is this not false swearing? 5) Is not fraud and false swearing crimes punishable by incarceration in a state or federal institution?
Is your State as corrupt as mine?
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I’m sorry to say, but the majority of legal scholars and judges today really don’t understand the U.S. Constitution. That may seem incredible to most of those in this forum, but just try engaging them in debate in any of the many legal forums and one soon discovers just how far from understanding most of them have gotten.
And yes, it really is a majority of them. Indeed, it is more than 90% of them.
The problem is that lawyers are trained to give more weight to precedent, custom, policy, and practice, than to text and the legal history of that text. They speak, write, and think in legal language that has been distorted by the former, and disregard the latter as irrelevant to winning modern cases in actual courts.
Most of them really do believe the Necessary and Proper Clause is a grant of plenary power to do anything, that “commerce” is all economic activity and anything that affects it, and that the Welfare Clause is a grant of power rather than a restriction on the power to tax and spend.
These misunderstandings are not new. Most of them go back to the Founding Era. There are about 80 legal terms of art in the amended Constitution that really are ambiguous to modern lawyers.
So clarifying amendments are needed to overcome wrong precedents. However, an Article V convention is not the way to get them. ……….[rest of comment deleted by PH]
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No! Any attorney with sufficient litigation experience can tell you that an amendment to the Constitution is not necessary to “overcome wrong precedents”. Courts do overrule themselves: This is done by writing an opinion which repudiates the point at issue in the earlier cases and says, “we overrule holdings to the contrary in the following line of cases”: [then follows a list of key cases].
And you do grave damage to the Constitution when you suggest that an amendment to THE CONSTITUTION is needed to overcome bad federal court precedent. The supreme law of the land is restricted to The Constitution and laws & treaties made under the authority of the Constitution. IT NEVER INCLUDES SUPREME COURT OPINIONS. Yet you elevate mere supreme Court opinions to a status so high that it requires an amendment to THE CONSTITUTION to fix. Think this through – what you propose is very bad Statecraft.
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Then the vast majority of attorneys don’t have sufficient litigation experience. Most are like J. Scalia, who while addressing a national Federalist Society convention, in reply to a question about overturning wrong precedents, said he would have to be “crazy” to do that. I recorded it and you can view it at http://youtu.be/DAxs44lDc4g?list=UUjyUCzC1HvROe2fzS8lJ81A
I engage hundreds of lawyers every day in fora like the Volokh Conspiracy and the Conlawprofs list, often attend Federalist Society conventions, and once attended a convention of the American Constitution Society, which gathered more than a thousand mostly law students to indoctrinate them on the progressive interpretation of the Constitution.
I am not the one who elevates court opinions to a high status. Most lawyers do that, despite my best efforts to educate them. Most of them don’t care to be educated. They just want to win cases and collect fees.
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Well then, since you understand that SCOTUS opinions are not part of the supreme law of the land – but are merely decisions in particular cases; stop granting them the dignity of being part of the supreme law by asserting they can be gotten rid of only by AMENDMENTS TO THE CONSTITUTION!
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