Publius-Huldah's Blog

Understanding the Constitution

Honest discourse about Article V convention needed

By Publius Huldah

Whether States should ask Congress to call a convention under Article V of our federal Constitution is one of the most important issues of our time. The Delegates to such a convention, as Sovereign Representatives of The People, have the power to throw off the Constitution we have and set up a new Constitution – with a new and easier mode of ratification – which creates a new government.1

Americans need the Truth. But former law professor Rob Natelson’s recent article in The Hill is filled with ad hominems and misstatements. Natelson is legal advisor for pro-convention groups such as “Convention of States Project” (COSP).

“Poisoning the well” fallacy

Natelson characterizes those who oppose an Article V convention as “big government advocates”; “Washington insiders” who protect “judges and politicians who abuse their positions”; chanters of “talking points” from the “disinformation campaign” of the 1960s and early 1970s who have “no real expertise on the subject”; and, like those involved in “voter suppression efforts”, use “fear and disinformation” to discourage citizens from exercising their rights.

And while such tactics clearly resonate with COSP’s cheerleading squad; 2 others immediately recognize the preemptive ad hominem attack known as the “poisoning the wellfallacy. That fallacy is committed when one primes the audience with adverse information or false allegations about the opponent, in an attempt to bolster his own claim or discount the credibility of the opponent.

Obviously, Natelson’s characterizations don’t constitute proof that he is right, and opponents are wrong.

Misrepresentations, omissions, and irrelevant “academic research”

1. Natelson asserts:

“Our founders designed this [Article V convention] as a way the people could fix the federal government if it became abusive or dysfunctional”.

But he presents no proof – and can’t because no one at the federal convention of 1787 (where our present Constitution was drafted) said such a thing. As proved in The George Mason Fabrication, the Delegates agreed that the purpose of amendments is to correct defects in the Constitution.

2. Natelson asserts:

“Any proposals must… be ratified by 38 states before they become law.”

That’s not true. While any amendments to our Constitution must be ratified by 38 States; our Declaration of Independence says it’s the “self-evident” Right of a People to abolish their government and set up a new one.

We invoked that Right in 1776 to throw off the British Monarchy.

In 1787, we invoked that Right to throw off our first Constitution, the Articles of Confederation; and set up a new Constitution – the one we now have – which created a new government.

How did we get from our first Constitution to our second Constitution? There was a convention to propose amendments to our first Constitution!

The Continental Congress resolved on February 21, 1787 to call a convention to be held at Philadelphia:

for the sole and express purpose of revising the Articles of Confederation”.

But the Delegates ignored this limitation – they ignored the instructions from their States – and they wrote our second Constitution.

And in Federalist No. 40 (15th para), James Madison invoked the “precious right” of a People to throw off one government and set up a new one, as justification for what they did at the federal “amendments” convention of 1787.

We can’t stop that from happening at another convention. Furthermore, any new constitution will have its own mode of ratification. Whereas Art. 13 of the Articles of Confederation required amendments to be approved by the Continental Congress and all of the then 13 States; the new Constitution provided at Article VII that it would be ratified by 9 States.

Any proposed third constitution will have its own mode of ratification. The proposed Constitution for the Newstates of America is ratified by a national referendum (Art. XII, §1). The States don’t ratify it – they are dissolved and replaced by regional governments answerable to the new national government.

3. Natelson asserts that “academic research” shows:

“…how the convention is chosen and operates: It is a meeting of state representatives of a kind very common in U.S. history…The convention follows a pre-set agenda and attendees are subject to state legislative direction.”

Natelson’s “meetings” are irrelevant:  they weren’t constitutional conventions called to propose changes to our Constitution!

Furthermore, Natelson doesn’t mention the one relevant convention we have had in this Country: the federal “amendments” convention of 1787. That convention involved Delegates who ignored the instructions from their States 3 and from the Continental Congress, and resulted in a new Constitution with a new and easier mode of ratification. That is the only “meeting” which is relevant to the convention Congress has the power to call under Article V of our Constitution.

The “calling” of a convention by Congress is governed – not by Natelson’s “meetings” – but by provisions in our Constitution. Article V delegates to Congress the power to “call” a convention; and Article I, § 8, last clause, delegates to Congress the power to make laws “necessary and proper” to carry out that power.

As to the sovereign powers of Delegates, look to the Declaration of Independence, the federal “amendments” convention of 1787, and Federalist No. 40 – not to Natelson’s “meetings”.

4. In an earlier article, Georgetown law professor David Super cited Coleman v. Miller (1939) to show that as amending the Constitution is a “political question”; the courts are unlikely to intervene. 4

Natelson responded that Coleman is a 79-year old “minority opinion the courts have long repudiated”; but doesn’t show where the Supreme Court “repudiated” its opinion.

What Coleman shows is this: we can’t expect federal courts to make Delegates obey instructions. No one has power over Delegates – Delegates can take down one government and set up a new one.

Conclusion

Here’s an idea: Let’s all read our Declaration of Independence and Constitution; elect only people who have also read them, know what they say, and agree to obey; and then let’s downsize the federal government to its enumerated powers.

Endnotes:

1 This is why James Madison, Alexander Hamilton, four Supreme Court Justices, and other luminaries warned against an Article V convention.

2 At 5:25-7:35 mark. Archived HERE.

3 The States’ instructions are HERE at endnote 9.

4 Professor Super is right: When the Constitution delegates a power to one of the “political” branches [legislative or executive], federal courts [“judicial” branch] traditionally abstain from interfering and substituting their judgment for that of the branch to which the power was delegated.

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June 24, 2018 - Posted by | Article V Convention, constitutional convention, convention lobby, Convention of States project, Delegates to a convention can't be controlled, James Madison, Professor David Super, Rob Natelson | , , , , , , , , , , , , ,

19 Comments »

  1. Publius, if I may ask, please expand on the point you outlined above.

    “3. Natelson asserts that “academic research” shows:

    “…how the convention is chosen and operates: It is a meeting of state representatives of a kind very common in U.S. history…The convention follows a pre-set agenda and attendees are subject to state legislative direction.”

    Natelson’s “meetings” are irrelevant: they weren’t constitutional conventions called to propose changes to our Constitution!

    Furthermore, Natelson doesn’t mention the one relevant convention we have had in this Country: the federal “amendments” convention of 1787. That convention involved Delegates who ignored the instructions from their States 3 and from the Continental Congress, and resulted in a new Constitution with a new and easier mode of ratification. That is the only “meeting” which is relevant to the convention Congress has the power to call under Article V of our Constitution.”

    It appears to me that you’re describing Natelson’s view of how any Article V meeting would be conducted in the current political atmosphere, but at the same time comparing the COSP to how the 1787 meetings were conducted, and then stating that the delegates ignored the instructions from their states. The delegates would do the same thing today as they did then, given that the political atmosphere today is more acidic than in 1787, and with a far greater emphasis on control. So, to close, it seens to me that the COSP is just a smoke screen for expanding government control over everything.

    Like

    Comment by Grog | July 29, 2018 | Reply

    • Well, I don’t know how I can expand. Natelson claims that an Article V convention would be conducted in the exact same way other conventions in the past have been conducted. But those other conventions weren’t called to address our federal Constitution.

      and Natelson ignores the one relevant convention we have had – the federal amendments convention of 1787 which was called for “the sole and express purpose” of proposing revisions to the Articles of Confederation. But as I pointed out, the Delegates ignored their instructions to merely propose amendments to the Articles of Confederation, and drafted a completely new Constitution with an easier mode of ratification.

      So I suggest that Natelson is a paid hack.

      Like

      Comment by Publius Huldah | July 31, 2018 | Reply

  2. There is no need for a “Con-con” Just enforce the 5th,6th and 7th Amendments and return control of this government to the People as the founders intended. If the Peoples Juries control the law the rest of government would have to come back to reality.

    Like

    Comment by Eugene Paulson | June 25, 2018 | Reply

    • The People still have the power to fix our Country. Learn our Declaration of Independence and Constitution and enforce them with our votes. But they won’t do that – they want someone – the “man on the white horse” – to fix our Country for them.

      But if we get a new Constitution, the people will lose all their power. Read the proposed new Constitutions already prepared and waiting for a convention! Under the proposed Constitution for the Newstates of America, the people will be disarmed (Article I, B., Section 8). That Constitution is ratified by a National Referendum (national popular vote) (Article XII, Section 1). The Bush Family, the Cruz Family, the Council on Foreign Relations, etc., want to move us into the North American Union (NAU). Under the NAU, Canada, the United States, and Mexico merge and a Parliament is set up over them.

      Liked by 2 people

      Comment by Publius Huldah | June 25, 2018 | Reply

  3. It is my belief that there is and has been to many changes (not for the good) that our Forefathers knew was possible and our forefathers gave us remedy. President Trump is working hard to put us back on track and needs our support (the support of the people). If you research our forefathers thinking – the original Thirteenth Amendment was for our protection. When you hear about the problems the people are having, what is the under laying problem? Think about it! Is it not Corporate Attorney’s? Who drafts a 5200 page document that nobody reads or understands? Who or what is behind every problem the people have (corporate Judicial system)? The people need real Law, the Law of the people. We need to talk and back each other up on the Truth. A Jury of our peers. A Tribunal, common Law court where the PEOPLE are heard.

    Like

    Comment by LC in Texas | June 25, 2018 | Reply

    • Actually, it is much simpler: The People must read and learn two documents: the Declaration of Independence and our Federal Constitution. Read them, outline them, learn them until you know what they say.

      I boiled it all down to one page: https://publiushuldah.files.wordpress.com/2013/08/chart-showing-federal-structure-3-1-part-a2.pdf Learn that and you will understand why our Constitution was a 5,000 year miracle.

      We were supposed to enforce the Declaration and Constitution with our votes. But we didn’t because we were too lazy to read and learn those two documents. And we couldn’t enforce them with our votes – how could we when we don’t know what they say? So we voted for politicians who told us what we wanted to hear.

      “Peoples’ juries” can’t fix our problems – The People are the cause of our problems because they failed and refused to learn and enforce our two Founding documents.

      Like

      Comment by Publius Huldah | June 25, 2018 | Reply

  4. Another great post! The COS crowd—from leadership on down—is full of logical fallacies and vicious attacks.

    I made a short video in 2014 with clips from Michael Farris highlighting some of his nastiest attacks against those who oppose a Con-Con. https://libertyforeverblog.wordpress.com/2016/01/22/39/

    It is truly shocking what those who don’t stand on truth will do in order to push their agenda down others’ throats.

    Like

    Comment by Liberty Stevens | June 25, 2018 | Reply

    • Well done, Liberty! Like you, I was taught Logic when I was a child. But Farris, Natelson, et al, are disasters when it comes to clear and rational thinking.

      Liked by 1 person

      Comment by Publius Huldah | June 25, 2018 | Reply

  5. Reblogged this on Starvin Larry.

    Liked by 1 person

    Comment by gamegetterII | June 24, 2018 | Reply

  6. I don’t understand your passion for opposing the COS movement. We have a federal government that is unmoored from our current constitution, so if something pretty radical isn’t done soon we won’t recognize our country within a decade, or less. We the people are not going to get the many needed amendments to the current constitution through Congress, so the COA is the way to go. Since 2/3 of the delegates have to vote in favor of any amendment, and 3/4 of the states have to ratify it, I don’t see any threat to the country in holding the convention. The only threat is to the intrenched politicians and Deep State rats in Washington.

    Like

    Comment by Jack | June 24, 2018 | Reply

    • If you read with an open mind, perhaps you would understand the danger. I think one has to willfully shut his eyes and close his mind before he can fail to understand.

      Like

      Comment by Publius Huldah | June 24, 2018 | Reply

    • Hi Jack, I just wanted to say I don’t believe amendments will fix our country in any way.

      If Congress isn’t obeying the Constitution as it now stands–and I think we all agree they aren’t–what makes us think they’ll obey a new amendment?

      The Constitution is just a document after all, and the only reason it worked for so long and enabled such freedom and prosperity in America is because We the People enforced it.

      The problem now?

      We the people aren’t enforcing it!

      Enforcing the Constitution through an informed electorate is the solution to reining in an out of control big government–not amending a Constitution that isn’t “broken.”

      Only a moral and virtuous people are capable of liberty–and an amendment won’t fix that.

      The federal government almost completely ignores the Constitution today–and an amendment won’t fix that.

      Thanks and God bless!

      Liked by 1 person

      Comment by Liberty Stevens | June 25, 2018 | Reply

  7. Will probably lead to Civil War

    A

    >

    Like

    Comment by sicilianthing | June 24, 2018 | Reply

    • What will probably lead to civil war?

      Like

      Comment by Publius Huldah | June 24, 2018 | Reply

  8. This from Matthew Spalding Executive Editor of the Heritage Guide to the Constitution 2nd edition might give you some hope / ammunition.

    On Sun, Jun 24, 2018, 8:41 AM Publius-Huldah’s Blog wrote:

    > Publius Huldah posted: “By Publius Huldah Whether States should ask > Congress to call a convention under Article V of our federal Constitution > is one of the most important issues of our time. The Delegates to such a > convention, as Sovereign Representatives of The People, have ” >

    Like

    Comment by Bob Brewer | June 24, 2018 | Reply

    • Bob, are you saying that Spalding wrote something which would give us hope/ammunition?

      Like

      Comment by Publius Huldah | June 24, 2018 | Reply


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