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Understanding the Constitution

When the feds violate the Constitution, should we blame the Constitution?

By Publius Huldah

In Rob Natelson’s paper [link], “The Solution is a Convention of the States”, he makes claims about what our Framers said is the purpose of amendments to our Constitution which are not true. He also gives false assurances about the safety of a convention called by Congress under Article V of the Constitution.

At the outset, we should note that the title of Natelson’s paper incorporates a stratagem which creates the false belief that the States control the convention. The belief is false because the convention provided for by Art. V of the Constitution is a federal convention called by the federal government to perform the federal function of addressing our federal Constitution. It is not a state function; accordingly, the term, “convention of States”, does not appear in Article V. So the “Convention of States movement” (COS), of which Natelson is “senior advisor”, renamed the convention provided for in Article V as a “convention of the States”; 1 and re-defined it as “a convention controlled by State Legislatures”.

Now let’s examine various other claims on which COS builds its case.

1. The fabricated George Mason quote

COS claims that our Framers gave us the convention method of getting amendments so that when the federal government “violate[s] its constitutional limitations”, we can get a convention to “make adjustments to the constitutional text in order to rein in the abuse of power by the federal government.” Or, in plain English, when the feds violate the Constitution, the solution is a convention to amend the Constitution.

But our Framers didn’t say that. The falsity and absurdity of COS’s claim is exposed here. What our Framers actually said is that the purpose of amendments is to correct defects in the Constitution. And they recognized that the purpose of a convention is to get another Constitution. James Madison warned that those who secretly want to get rid of our Constitution would push for a convention under the pretext of getting amendments.

2. Natelson’s claims re using amendments to “overrule bad Supreme Court decisions” & “restrain federal power”

Natelson admits that the Framers said we can use amendments to correct defects in the Constitution; but then muddles up what the Framers actually said with what they never said, thereby seemingly legitimizing his misleading claim that the Framers envisioned that we could use amendments to “overrule bad Supreme Court decisions” and “restrain federal power”.

As an example of a “bad” Supreme Court decision, Natelson claims that “[i]n early 1795, the States ratified the 11th Amendment to reverse an overreaching Supreme Court decision”.

The decision he is referring to is Chisholm v. Georgia (1793) [link]; and what he says about it isn’t true. What Chisholm actually stands for is this: Our Constitution originally delegated to federal courts the power to hear cases “between a State and Citizens of another State” (Art. III, §2, cl.1). But when a Citizen of South Carolina sued the State of Georgia, States were outraged! Georgia sued. In Chisholm, the Supreme Court decided the case in accordance with the Constitution and held that Chisholm could maintain his suit.

But the States didn’t want Citizens of other States suing them. So the States ratified the 11th Amendment which took away from the federal courts the constitutional authority to hear cases filed by a Citizen against another State. So the 11th Amendment illustrates what our Framers actually said is the purpose of amendments: to fix defects in the Constitution.

Natelson also claims that our Framers said we could use amendments to “restrain federal power” when the federal government “exceeded and abused its powers”.

Again, Natelson muddles up the true and the false when he fails to distinguish between usurpations of undelegated powers and abuses of delegated powers.

No Framer said that amendments could be used to restrain usurpations of powers not delegated. And in Federalist No. 49 (last para) James Madison says the opposite. He warns against another convention and says, “occasional appeals to the people [a convention] would be neither a proper nor an effectual provision” for restraining the federal government within its legal powers.

But when the federal government abuses a delegated power, an amendment could be appropriate. Here’s an example: the Tariff Act of 1828 was constitutional since tariffs are authorized by Art. I, §8, cl. 1. But it was abusive because it benefited infant industries in the Northeast at the expense of the Southern States. So what’s the remedy for such abuse of delegated power? Article I, §8, cl. 1 could be amended to say that Congress may impose tariffs only to raise revenue to carry out the enumerated powers; and may not impose tariffs in order to benefit one section of the Country at the expense of other sections.

3. Natelson’s proposed “corrective reforms” to the Constitution

Natelson says he wants a convention to get a balanced budget amendment (BBA); to curb “undemocratic and unfair” regulations; to reverse “liberal-activist Supreme Court decisions”; to impose term limits; and get other amendments “to restrain federal power”.

But as anyone who has read it knows, our Constitution already limits the federal government to a handful of enumerated powers. The powers are listed here. The categories of cases federal courts are authorized to hear are listed at Art. III, §2, clause 1. All the problems of which COS and Natelson complain are the result of violations by the federal government of the existing constitutional limitations on their powers – and the States’ acquiesce in such violations!

Balanced Budget Amendment: Our Constitution already limits federal spending to the enumerated powers. But for 100 years, everyone has ignored the existing limits on federal spending. A BBA would replace the existing enumerated powers limitation on federal spending and create a new constitutional authority to spend on whatever the President or Congress put into the budget! A BBA thus legalizes spending which is now unconstitutional as outside the scope of the enumerated powers, and transforms the federal government into one which has constitutional authority over whatever Congress decides to spend money on.

Federal Regulations: Article I, §1 vests all lawmaking powers in Congress. So all regulations issued by federal executive agencies which purport to apply to the Country at Large are unconstitutional as in violation of Art. I, §1; and as outside the scope of the enumerated powers. An amendment such as Natelson proposes is a grant of constitutional power to federal executive agencies to make Laws.

Supreme Court Opinions: This shows why Roe v. Wade is unconstitutional. This shows why the opinions banning Christian speech in the public square are unconstitutional. The remedy our Framers advised for such usurpations is impeachment and removal from the Bench (Federalist No. 81, 8th para), and nullification by the States of unconstitutional opinions [link].

Natelson cannot produce any writing from a Framer which says that when the Supreme Court violates the Constitution, the remedy is to amend the Constitution. Our Framers were not silly men. And what would such an amendment as Natelson proposes say? That federal judges must obey the Constitution? Article VI already requires that. Does Natelson propose amendments which list the subjects on which federal courts may not act? But Art. III, §2, cl. 1 already lists the kinds of cases they may hear. But we ignore those existing limitations.

Term limits amendment: If we learned anything from the last election, it should be that we will not in the foreseeable future have an honest federal election. With H.R.1, Congress is likely to attempt to “legalize” the unconstitutional shenanigans which enabled the theft of the last election. So your vote won’t matter!

But even if we had honest federal elections, consider this: As you decrease the powers of elected members of Congress by making them transient beings – you increase the powers of the “deep state”. With term limits, elected members of Congress would become like train cars passing in the night – the power would be solidified in the nameless, faceless, un-elected bureaucrats who infest the Executive Branch.

Anyone who analyzes the amendments proposed by COS and their allies can see that their amendments increase the powers of the federal government by delegating powers already usurped, granting new powers, or stripping States of their existing powers. See: ‘Mark Levin’s “Liberty” Amendments: Legalizing Tyranny’ [link]; ‘COS Project’s “simulated convention” dog and pony show and what they did there’ [link], & ‘The “Regulation Freedom” Amendment and Daniel Webster’ [link].

4. Amendments to “prevent federal abuse” can backfire!

When amendments correct defects in the Constitution, they are clearly a good thing. The 12th & 13th Amendments, like the 11th Amendment, corrected defects in the Constitution. Section 1 of the 14th Amendment extended Citizenship to the freed slaves and provided constitutional authority for the much needed federal Civil Rights Act of 1866.

But amendments added to prevent federal abuses backfired. In Federalist No. 84 (10th para), Alexander Hamilton warned against adding a Bill of Rights to our Constitution. Under a Constitution of enumerated powers, the government may lawfully do only what the Constitution permits it to do. So

“…why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? … it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power...” [emphasis mine]

But Hamilton’s warnings were brushed aside.

Beginning in the 1920s, Justices on the Supreme Court – who were “disposed to usurp” – fabricated a doctrine under which they claimed that §1 of the 14th Amendment “incorporated” various parts of the first 8 Amendments so that those Amendments restricted the States! This how the Supreme Court usurped power to dictate how the States must apply the Bill of Rights. As shown here (at 12. & endnote 4), this is the theory the Supreme Court used to ban Christian speech from the public schools and County courthouse lawns.

Throughout the years, the Supreme Court has extended its “incorporation doctrine” to dictate to the States how they must apply the 1st, 2nd, 4th, 5th, 6th, and 8th Amendments [link].

Furthermore: Amendments usher in implementing federal statutes and executive agency regulations – and judicial power over the subject of the Amendment becomes vested in the federal courts. Article III, §2, cl.1, says, “The judicial Power shall extend to all Cases … arising under this Constitution …”

Beware of what you ask for.

5. Natelson’s assurances that a convention would consist of “state delegations” sent “to propose pre-specified amendments” are false and reckless in the extreme 2

Natelson presents nothing to support his assurances. He can’t because his assurances are contradicted by the Constitution; and by the federal “amendments” convention of 1787, which is our sole historical precedent for a federal convention called by a Congress to address our federal Constitution.

Article V, US Constit., says:

The Congress, whenever two thirds of both Houses shall deem necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing amendments…” [italics added]

Article I, §8, last clause, US Constit., says Congress shall have the Power…

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof.” [italics added].

So Congress calls the convention and makes the laws necessary and proper to organize the convention.

The April 11, 2014 Report of the Congressional Research Service [link] shows that Congress recognizes that Article V grants to Congress exclusive authority to set up a convention:

“Second, While the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including (1) receiving, judging, and recording state applications;(4) determining the number and selection process for its delegates…” (page 4).

So Congress has the power to receive and judge the applications; how to count the applications, which ones to count, whether to aggregate the different forms of applications, etc.

Nothing in the Constitution permits State Legislatures to dictate amendments to be considered. The convention is the deliberative body.

Nothing in the Constitution requires Congress to permit States to select Delegates. Congress – the same Congress which Natelson tells us is “abusive”, “mendacious” and “revels in its power”- has the power to select the Delegates. Congress may appoint themselves as Delegates. 3

6. The People have the power to take down and set up governments

The push for an Article V convention is a hoax. The Globalists who stole the Election want a new Constitution. They are using “getting amendments to rein in the federal government” as a pretext for getting a convention where a new Constitution is sure to be imposed. Madison expressly warned of this stratagem [link].

Our Declaration of Independence is part of the “Organic Law” of our Land. It recognizes that The People take down and create governments. When Delegates meet in convention to address a Constitution, they are the Sovereign Representatives of The People. They cannot be controlled by the “creatures” of Constitutions previously ratified by the People [link].

In Federalist No. 40 (15th para) James Madison invoked the “transcendent and precious right” of a people to throw off one government and set up a new one as justification for the Delegates to the federal “amendments” convention of 1787 ignoring their instructions to propose amendments to the Articles of Confederation, and instead writing a new Constitution with its own easier mode of ratification.

Accordingly, even if the “abusive” and “mendacious” Congress doesn’t “revel in its power” to appoint Delegates, but graciously permits States to select Delegates, State Legislatures have no competent authority to control Delegates at a convention called by Congress pursuant to Article V. The Delegates, as Sovereign Representatives of The People, have the power to eliminate the federal & state governments! 4

Heed the warning of the great statesman Daniel Webster:

“The politician that undertakes to improve a Constitution with as little thought as a farmer sets about mending his plow, is no master of his trade. If that Constitution be a systematic one, if it be a free one, its parts are so necessarily connected that an alteration in one will work an alteration in all; and this cobbler, however pure and honest his intentions, will, in the end, find that what came to his hands a fair and lovely fabric goes from them a miserable piece of patchwork.” Daniel Webster, 4th of July Oration, 1802.

Endnotes:

1 In a speech Natelson gave on Sep. 16, 2010 [link at top of p. 2], he said he would no longer call what he wanted a “constitutional convention”; but would ‘put our concepts on “reset” ’ and henceforth call it a “convention of states”.

2 Noted conservative constitutional litigators and law professors William Olsen and Herb Titus have already recognized that COS’s “false assurances” are “reckless in the extreme” [link].

3 Page 40 of the CRS Report says it’s been recognized that there doesn’t seem to be any “… constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention..”

4 The proposed Constitution for the Newstates of America [link] does just that. Article XII, §1 provides for ratification by a referendum called by the President. Do YOU trust the voting machines?

March 21, 2021 - Posted by | Amendments to the Constitution, Article V Convention, Congressional Research Service Report, constitutional convention, convention lobby, Convention of States project, Daniel Webster, Delegates to a convention can't be controlled, Federal Convention of 1787, Incorporation doctrine, Purpose of amendments to constitution, Rob Natelson | , , , , , , , , , ,

15 Comments »

  1. Reblogged this on Starvin Larry.

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    Comment by gamegetterII | March 28, 2021 | Reply

  2. […] Attorney Publius Huldah has some important to understand criticisms for the Convention of States movement in When the feds violate the Constitution, should we blame the Constitution? […]

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    Pingback by Publius Huldah: When the feds violate the Constitution, should we blame the Constitution? – Lower Valley Assembly | March 24, 2021 | Reply

  3. Ediberto Román, in his treatise titled “THE ALIEN-CITIZEN PARADOX AND OTHER CONSEQUENCES OF U.S. COLONIALISM” published in the Florida State University Law Review in 1998, eloquently mentions Antonio Gramsci’s theory of hegemony thusly:

    According to Antonio Gramsci’s theory of hegemony, subordinated groups often unwittingly adopt the dominant culture’s perception of
    reality. In other words, the proletariat, or subordinate group, “wear their chains willingly. Condemned to perceive reality through the
    conceptual spectacles of the ruling class, they are unable to recognize the nature or extent of their own servitude.”

    A snippet from my book (copied from Mr. Roman’s Treatise) coupled with the Preamble of the United States Constitution tells me that the ruling class in America, over the past 70 plus years, has systematically destroyed the Sovereignty of the American People, What is this ruling class? Is it the DNC, the military industrial complex, or Soros and a few other multi-billionaires. Certainly, no matter who or what it is “they” are taking advantage of the ignorance of the American People and their willingness to “…wear their chains willingly…are unable to recognize the nature or extent of their own servitude.”

    Could this be the ongoing ulterior motive in the destruction of our southern boarders and sleepy Joe’s invitation to the peoples of Central America? A power grab by ensuring future Democratic rule?

    Can we join together and bring back the Sovereignty of the American People?

    It is a certainty in my mind, as expressed by Publius Huldah in her article above, that a COS is not the answer.

    I might suggest, as a start, that the Republican Party start a recall of all Congressmen and women who voted for the impeachment of President Trump the second time. By November 3, 2021 the Republican Party could have a majority in the House and super majority in the Senate for the 2022 sessions.

    Is this a viable start or am I just too distraught with emotion and grief for my (our) Country?

    Like

    Comment by Douglas Smith | March 22, 2021 | Reply

    • 1. I doubt we will have honest federal elections in the Country in the foreseeable future unless States man up.
      2. I am unaware of any power of the States or The People to recall their members of Congress. I doubt very much they could do this. Certainly, Congress won’t permit it.

      I think the only solution is for the States to man up and start nullifying unconstitutional acts of the federal gov’t. See my papers under the Category Nullification. As soon as a get time, I’ll write on it.

      Like

      Comment by Publius Huldah | March 22, 2021 | Reply

  4. I must admit i was taken in by this convention of States as being the savior to our problems. So whats left, another ‘bloody, civil war’

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    Comment by Billy Bob | March 22, 2021 | Reply

    • Good Morning, Billy Bob. Go to my home page – under Categories, look for Nullification. In a series of papers, I prove that our Framers told States that the remedy for federal usurpations is for the States to refuse to submit to – to “nullify” – federal usurpations of powers not delegated.

      The Truth is that both the State governments AND the People have been bought off with federal funds. The States have been gobbling up every federal dollar they can get – and they implement unconstitutional federal programs in their States because they have been BRIBED to do it. Here’s one example: In Tennessee, a conservative Legislator introduced a bill to nullify obamacare. But the fiscal note said that if Tennessee did that, Tennessee would lose $ 6 BILLION in federal funds. Well! The Tennessee Republican Controlled State Legislature didn’t want to lose all that lovely federal money! So they implemented obamacare. You’ll find tens – hundreds – of thousands of examples like this in every State in the Union.

      And The People! Oh! They too LOVE THEIR UNCONSTITUTIONAL HANDOUTS.

      So all those people who rail against an “overreaching federal gov’t” AND, at the same time, have their hands out for every unconstitutional federal dollar they can get, are the real cause of our problems.

      Our problems are due to the moral, spiritual, religious, and intellectual collapse of The American People. The only solution is a moral, religious, and intellectual REGENERATION of the American People.

      Liked by 1 person

      Comment by Publius Huldah | March 22, 2021 | Reply

      • Thank you Publius Huldah appreciate the comments and I sure visit your home page.
        BB

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        Comment by Billy Bob Anders | March 23, 2021 | Reply

  5. My suggestion is to find someway to get rid of the unconstitutional Federal Agencies beginning with the IRS.

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    Comment by unionjack07 | March 22, 2021 | Reply

  6. The Constitution is clear along with the Bill of Rights. I believe in these, carefully thought out “Guides” to Govern a Free People. Looking at the Second Amendment, we know its intent was to protect the Free People from a Tyrannical Government. Now, we have NO leader, if we do as that Amendment allows and move as individual Free People, how do we keep from being dealt with as “criminals”? The circumstances surrounding the Riots in many large cities (called Peaceful Protests) vs. the Riotous Insurrection at the Nations Capitol is being met with “Troops” from our military and a “Defensive Position” has been created by the “Powers that Be” with Razor wire and Chain-link fencing. How do we do what the Founders have given us the Obligation to do? Just asking!

    Like

    Comment by Exring | March 21, 2021 | Reply

    • The solution is for the States to man-up and tell the fed go’vt to go hug a tree. I see some of that beginning to happen. Patriots have been teaching about Nullification by States of unconstitutional acts of the federal gov”t for years! See the entries under the category “Nullification” on my home page – my first paper on this is from some 10 years ago. The Tenth Amendment Center has lots on Nullification by States of unconstitutional acts of the federal gov’t.

      It’s really easy – all the States have to do is just say, “no!” and stop taking the federal money.

      Like

      Comment by Publius Huldah | March 21, 2021 | Reply

  7. […] When the feds violate the Constitution, should we blame the Constitution? […]

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    Pingback by When the feds violate the Constitution, should we blame the Constitution? – America, A Constitutional Republic | March 21, 2021 | Reply

  8. […] When the feds violate the Constitution, should we blame the Constitution? […]

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    Pingback by When the feds violate the Constitution, should we blame the Constitution? – Riverside Co Self-governance | March 21, 2021 | Reply

  9. Great article, as always. Several family members and fellow patriots have been listening to the COS shenanigans and feel it’s the answer…I disagree and your continual knowledge about our Republic and it’s founding is an immense help. Thank you and as I’ve said before, don’t stop…we need you.

    Like

    Comment by MattM | March 21, 2021 | Reply

    • The people who fall for COS propaganda don’t know that our Constitution already limits the federal gov’t to a handful of enumerated powers. All our problems arise because the fed gov’t, the States, and The American People ignore the existing constitutional limits on federal power. The States and The People loved the federal money which came with all those unconstitutional federal programs.

      Like Essau, the States and The People sole their Heritage for a bowl of porridge.

      And now, they blame the Constitution. Americans do love to blame-shift.

      Thank you, Matt. I won’t quit unless God relieves me of my duties.

      Liked by 1 person

      Comment by Publius Huldah | March 21, 2021 | Reply

      • Amen to that Joanna. Your reply is 100% accurate…..greed and power corrupt most…governed and governing alike.

        Like

        Comment by MattM | March 21, 2021 | Reply


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