Publius-Huldah's Blog

Understanding the Constitution

Why Supreme Court opinions are not the “Law of the Land”, and how to put federal judges in their place.

By Publius Huldah

Central to the silly arguments made by the “Convention of States Project” (COSP) is their claim that 200 years of Supreme Court opinions have increased the powers of the federal government (as well as legalized practices such as abortion); that all these opinions are “the Law of the Land”; and we need an Article V convention so we can get amendments to the Constitution which take away all these powers the Supreme Court gave the federal government.

But the text of Article V contradicts COSP’s claim. Article V shows that our Constitution can be amended only when three fourths of the States ratify proposed amendments. The Supreme Court has no power to amend our Constitution. And it’s impossible for an amendment to take away powers our Constitution doesn’t grant.

1. First Principles

Let’s analyze COSP’s silly argument. We begin by looking at First Principles:

♦The Judicial Branch was created by Art. III, §1, US Constitution. Accordingly, it is a “creature” of the Constitution. 1

♦The federal government came into existence when the States, acting through special ratifying conventions held in each of the States, ratified the Constitution.2

Since the Judicial Branch is merely a “creature” of the Constitution, it follows that it is subordinate to the Constitution, and is completely subject to its terms. It may not annul the superior authority of the States which created the Judicial Branch when they ratified the Constitution; 3 and as a mere “creature” of the Constitution, it may NOT change the Constitution under which it holds its existence! 4

 

2. Supreme Court Opinions are not “the Law of the Land”

Article VI, cl.2, US Constit., the “supremacy clause”, defines “supreme Law of the Land” as the Constitution, and acts of Congress and Treaties which are authorized by the Constitution. Supreme Court opinions aren’t included!

Furthermore, Art. I, §1, US Constit., vests all law-making powers granted by the Constitution in Congress. Our Constitution doesn’t grant any lawmaking powers to the Judicial Branch.

So why does everybody say, as we heard during the Kavanagh confirmation hearings, that Roe v. Wade is “the Law of the Land”? Because Americans have been conditioned to believe that the Supreme Court is superior to our Constitution; that their opinions about our Constitution are “law”, and we are bound by them unless and until they issue new opinions which release us from their previous opinions.

 

3. Organic & statutory law and the totally different “common law” precedent followed in courts

Americans have been conditioned to ignore the huge distinctions between organic and statutory law, on the one hand; and the common law which is embodied in the precedents followed by judges in litigation.

Organic Law

Black’s Law Dictionary defines “organic law” as

“The fundamental law, or constitution, of a state or nation, written or unwritten; 5 that law or system of laws or principles which defines and establishes the organization of its government.”

The organic laws of the United States are

  • The Declaration of Independence – 1776
  • Articles of Confederation – 1777
  • Ordinance of 1787: The Northwest Territorial Government
  • Constitution of the United States – 1787

The Articles of Confederation was our first Constitution. It was replaced by our Constitution of 1787 when it was ratified June 21, 1788. The Northwest Ordinance was superseded by the transformation of the area covered by the Ordinance into States [pursuant to Art. IV, §3, cl. 2, US Constit.].

Do you see how absurd is the claim that the Supreme Court, a mere “creature” of the Constitution of 1787, has the power to change the Organic Law of the United States?

Statute Law

Black’s Law Dictionary defines “statute law” as the

“Body of written laws that have been adopted by the legislative body.”

As we saw above, all legislative Powers granted by our Constitution are vested in Congress (Art. I, §1). Acts of Congress qualify as part of the “supreme Law of the Land” only when they are made pursuant to Authority granted to Congress by the Constitution (Art.VI, cl. 2). When Acts of Congress are not authorized by the Constitution, they are mere usurpations and must be treated as such.6

Common Law

The “common law” applied in courts in the English-speaking countries came from the Bible.7 The Bible has much to say about our relations with each other: don’t murder people, don’t maim them, don’t steal, don’t bear false witness, don’t tell lies about people, don’t be negligent, don’t cheat or defraud people, and such. The Bible provides for Judges to decide disputes between people and empowers Judges to require the person who has violated these precepts to pay restitution to the person whom he harmed. So, e.g., the Biblical prohibitions against bearing false witness and slandering people became our modern day concepts of slander, libel, and defamation. These principles were applied in the English courts from time immemorial, and are applied in American Courts. Modern day American attorneys litigate these common law concepts all the time. So if I am representing a client in an action for say, fraud, I look at the previous court opinions in the jurisdiction on fraud, and see how the courts in that jurisdiction have defined fraud – i.e., I look for “precedents” – the courts’ previous opinions on the subject – and I expect the Judge on my case to obey that precedent. 8

THIS is the “common law”. It is “law” in the sense that it originated with God’s Word; and from “time immemorial” has been applied in the Courts of English speaking countries. But this precedent is binding or persuasive only on courts. 9 As precedent for judges to follow, it is never “the law of the land”!

So, keep these three categories – organic, statutory, and common law – separate, and do not confuse court precedent with the “Law of the Land”. The latter is restricted to the Organic Law, and statutes and treaties authorized by the Organic Law.

Now let’s look at the constitutional jurisdiction of the federal courts.

 

4. What kinds of cases do federal courts have constitutional authority to hear?

The ten categories of cases the Judicial Branch has authority to hear are enumerated at Art. III, §2, cl. 1, US Constit. 10

The first category is cases “arising under this Constitution”. In Federalist No. 80 (2nd para), Hamilton shows these cases concern “provisions expressly contained” in the Constitution. He then points to the restrictions on the authority of the State Legislatures [listed at Art. I, §10], and shows that if a State exercises any of those prohibited powers, and the federal government sues the State, the federal courts would have authority to hear the case (3rd & 13th paras).

So if a State enters into a Treaty, or grants Letters of Marque & Reprisal, or issues paper money, or does any of the other things prohibited by Art. I, §10, the controversy would “arise under the Constitution” and the federal courts have constitutional authority to hear the case.

Likewise, if a State passed a law which violated the Constitution – say one requiring candidates in their State for US Senate to be 40 years of age – instead of the 30 years prescribed at Art. I, §3, cl. 3 – the federal courts have constitutional authority to hear the case.

So the purpose of this category is to authorize the Judicial Branch to enforce the Constitution – not re-write it!! 11

Now let’s look at one way the Supreme Court butchered our Constitution in order to strike down State Laws they didn’t like.

 

5. How the Supreme Court violated the “arising under” clause to hear cases they have no constitutional authority to hear

Let’s use “abortion” to illustrate the usurpation. Obviously, “abortion” is not “expressly contained” in the Constitution. So abortion doesn’t “arise under” the Constitution; and the constitutionality of State Statutes prohibiting abortion doesn’t fit into any of the other nine categories of cases federal courts have authority to hear. Accordingly, federal courts have no judicial power over it. The Supreme Court had to butcher words in our Constitution in order to usurp power to legalize abortion. This is what they did:

The original intent of §1 of the 14th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the federal Civil Rights Act of 1866. That Act protected freed slaves from Southern Black Codes which denied them God-given rights. 12

Now look at §1 where it says, “nor shall any state deprive any person of life, liberty, or property, without due process of law;”

That’s the “due process” clause. As Professor Berger points out [ibid.], it has a precise meaning which goes back to the Magna Charta: it means that a person’s life, liberty or property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial.

But this is how the Supreme Court perverted the genuine meaning of that clause: In Roe v. Wade (1973), they looked at the word, “liberty” in the due process clause and said, “liberty” means “privacy”, and “privacy” means “a woman can kill her unborn baby”. 13

And they claimed they had jurisdiction to overturn State Laws criminalizing abortion because the issue arises under the Constitution at §1 of the 14th Amendment! [ibid.]

The Supreme Court redefined words in Our Constitution to justify the result they wanted in the case before them.

The Supreme Court didn’t “enforce” the Constitution – they butchered it to fabricate a “constitutional right” to kill unborn babies.

And the lawyers said, “It’s the Law of the Land”; the People yawned; and the clergy said, “the Bible says we have to obey civil government – besides, we don’t want to lose our 501 (c) (3) tax exemption!”

 

6. What are the remedies when the Supreme Court violates the Constitution?

The opinions of which the convention lobby complains constitute violations of our Constitution. 14 The three remedies our Framers provided or advised for judicial violations of our Constitution are:

1. In Federalist No. 81 (8th para), Hamilton shows Congress can impeach and remove from office federal judges who violate the Constitution. Congress is competent to decide whether federal judges have violated the Constitution! Impeachment is their “check” on the Judicial Branch.

2. In Federalist No. 78 (6th para), Hamilton shows the Judicial Branch must rely on the Executive Branch to enforce its judgments. If the President, in the exercise of his independent judgment and mindful of his Oath to “preserve, protect and defend the Constitution”, determines that an opinion of a federal court is unconstitutional; his Duty is to refuse to enforce it. The President is also competent to decide whether federal judges have violated the Constitution! Refusing to enforce their unconstitutional judgments is his “check” on the Judicial Branch.

3. On the Right & Duty of the States – who created the federal government when they ratified the Constitution – to smack down their “creature” when their “creature” violates the Constitutional Compact the States made with each other, see Nullification: The Original Right of Self-Defense.

Endnotes:

1Creature” is the word our Founders used – e.g., Federalist No. 33 (5th para) & Jefferson’s draft of The Kentucky Resolutions of 1798 (8th Resolution).

2Art. VII, cl. 1, US Constit., sets forth ratification procedures for our Constitution.

3 Madison’s Virginia Report of 1799-1800 (pp 190-196).

4 Madison’s Journal of the Federal Convention of 1787 shows that on July 23, 1787, the Delegates discussed who was competent to ratify the proposed new Constitution. Col. Mason said it is “the basis of free Government” that only the people are competent to ratify the new Constitution, and

“…The [State] Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators…”

Madison agreed that State Legislatures were incompetent to ratify the proposed Constitution – it would make essential inroads on the existing State Constitutions, and

“…it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence….”

It’s equally novel & dangerous to say that the Supreme Court may change the Constitution under which it holds its existence.

5 It is said England doesn’t have a written constitution.

6 Acts of Congress which are not authorized by the enumerated powers are void. They are not made “in Pursuance” of the Constitution and have supremacy over nothing. Federalist No. 27 (last para) says:

“…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [capitals are Hamilton’s]

See also Federalist No. 33 (last 2 paras) and Federalist No. 78 (10th para).

7 John Whitehead mentions the Biblical origin of the common law in The Second American Revolution.

8 Art. III, §2, cl.1 delegates to federal courts power to hear “Controversies between Citizens of different States.” Much of the litigation conducted in federal courts falls into this category. These lawsuits aren’t about the Constitution. Instead, they involve the range of issues people fight about in State Courts: personal injury, breach of contract, business disputes, fighting over property, slander & libel, etc. In deciding these cases, federal judges are expected to follow the “common law” precedents.

9 In Federalist No. 78 (next to last para), Hamilton discusses how judges are bound by “precedents” which define and point out their duty in the particular cases which come before them.

10 In Federalist No. 83 (8th para), Hamilton says:

“…the…authority of the federal …[courts]…is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction…”

11 James Madison agreed that the purpose of the “arising under this Constitution” clause is to enable federal courts to enforce the Constitution. At the Virginia Ratifying convention on June 20, 1788, he explained the categories of cases federal courts have authority to hear. As to “cases arising under this Constitution”, he said:

“…That causes of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that the rights of the union are secured by these restrictions. They may involve equitable as well as legal controversies…”

12 This is proved in Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment.

13 In Roe v. Wade (1973), the Supreme Court said under Part VIII of their opinion:

“…This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…”

14 Many Supreme Court opinions violate our Constitution. Wickard v. Filburn (1942), discussed HERE, is another of the most notorious. But we elect to Congress people who don’t know our Constitution or The Federalist Papers; and they are unaware of their Duty – imposed by their Oath of office – to function as a “check” on the Judicial Branch by impeaching federal judges who violate our Constitution.

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November 25, 2018 Posted by | 14th Amendment, 3000 page constitution, Abortion, annotated constitution, Article V Convention, common law, Convention of States project, Creature of the Compact, due process clause, Enumerated Powers of Federal Courts, federal judges, Judicial Abuse, Law of the Land, Nullification, organic law, precedents, Publius Huldah, Roe v. Wade, statute law, The Judicial Branch | , , , , , , , , , , , , , , , , , , , , , | 10 Comments

What the Framers really said about the purpose of amendments to our Constitution

By Publius Huldah

One of the silliest of the many unsupported claims made by those lobbying for an Article V convention is that our Framers said that when the federal government violates the Constitution, the remedy is to amend the Constitution.1

It shouldn’t be necessary to point out that their claim makes as much sense as saying that since people violate the Ten Commandments, God should amend the Ten Commandments.2

And since none of our Framers said such a silly thing, the convention lobby can’t produce a quote where it was said.

Even so, some have believed it and repeated it to others. Americans! We must demand that people prove their claims before we believe what they tell us.

I will show you original source documents, and you can see for yourself what our Framers really said about the purpose of amendments to our Constitution.

Madison’s Journal of the Federal Convention of 1787

James Madison was a delegate to the federal convention of 1787 where our present Constitution was drafted. He kept a daily Journal. I went through it, collected every reference to what became Article V, and wrote it up – here it is.

Madison’s Journal shows what our Framers said at the convention about the purpose of amendments to our Constitution:

♦ Elbridge Gerry said on June 5, 1787: the “novelty & difficulty of the experiment requires periodical revision.”

♦George Mason said on June 11, 1787: The Constitution now being formed “will certainly be defective,” as the Articles of Confederation have been found 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. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent…The opportunity for such an abuse, may be the fault of the Constitution [i.e., a defect] calling for amendmt.” [boldface mine] 3

♦Alexander Hamilton said on Sep. 10, 1787: amendments remedy defects in the Constitution. 4

The Federalist Papers

In Federalist No. 43 at 8, Madison said the purpose of amendments to the Constitution is to repair “discovered faults” and “amendment of errors”; and “amendment of errors” and “useful alterations” would be suggested by experience.

In Federalist No. 85 (13th para), Hamilton said useful amendments would address the “organization of the government, not…the mass of its powers” 5

Throughout Federalist No. 49, Madison warned against a convention for proposing amendments, and showed that a convention is neither proper nor effective to restrain government when it encroaches.

Madison’s letter of August 28, 1830 to Edward Everett (p. 383-403)

Madison says:

“Should the provisions of the Constitution as here reviewed be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U.S…” (p. 398)

So he is talking about provisions – defects – in the Constitution which permit the federal government to abuse the States. He goes on to say:

“…the final resort within the purview of the Constn. lies in an amendment of the Constn…” 6

So he’s saying that when a defect in the Constitution exposes the States to abuses by the federal government, the remedy is to amend the Constitution.

To fully grasp Madison’s point, we must look at his letter in its historical context of the Tariff Act of 1828: The southern states bought manufactured goods from England. England bought southern cotton. But infant industries in the Northeast couldn’t compete with the English imports. So during 1828, Congress passed a Tariff Act which imposed such high tariffs on English imports that the southern states could no longer buy them. England stopped buying southern cotton. This devastated the southern economy. So South Carolina wanted to nullify the Tariff Act (the “Tariff of Abominations”); and developed a theory that a State had a “constitutional right” to nullify any federal law, and the nullification would be presumed valid, unless three-fourths of the States said it wasn’t valid.

Madison opposed South Carolina’s theory because the Tariff Act was constitutional – it was authorized by Art. I, §8, cl. 1, US Constitution. States can’t nullify a constitutional law! 7

But while the Tariff Act was constitutional, it was abusive: Article I, §8, cl. 1 was being used to benefit infant industries in the Northeast at the expense of the southern states. 8

So what’s the remedy “within the purview of the Constitution” for the Tariff Act of 1828? Madison doesn’t spell it out – but obviously Art. 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 domestic industries, or to benefit one section of the Country at the expense of other sections. 9

Washington’s Farewell Address

In his Address, Washington warns that we must require people in the federal government to confine themselves within their constitutional powers; and we must not permit one department [branch] of the federal government to encroach on the powers of the other departments (p. 15-19). He then says,

“If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” (p.19)

So Washington is talking about what the people may come to see as defects in the Constitution:

♦ If we want one branch of the federal government to have a power which the Constitution delegates to another branch, we should amend the Constitution to redistribute that power.10

♦ If we want the federal government to have a power the Constitution doesn’t grant, we should amend the Constitution to delegate the additional power. No matter how desirable it is for the federal government to have the additional power, we must not permit it to exercise the power by usurpation.11

And this is what Alexander Hamilton, who along with James Madison assisted Washington in drafting his Farewell Address, 12 had previously said in Federalist No. 78: The representatives of the people [Congress] may not violate the Constitution even if a majority of their constituents want them to:

“…Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act…” (5th para from the end)

Our Constitution isn’t defective, it’s ignored!

Our Constitution is a 5,000 year miracle. Our problem is everyone ignores it. The solution is to dust it off, read it, learn it, and enforce it. Downsize the federal government to its enumerated powers.

Demand Proof of what people say before you believe them.

If Americans would follow the example of the Bereans (Acts 17:11) and demand proof of the claims the convention lobby makes, they would spot the false claims and preserve our blessed Constitution. Judges & Juries require trial lawyers to prove their claims. Demand the same from lobbyists for a convention!

Endnotes:

1 Michael Farris claimed [but couldn’t link to a quote because Mason didn’t say it]:

“George Mason demanded that this provision [the convention method of proposing amendments] be included in Article V because he correctly forecast the situation we face today. He predicted that Washington, D.C. would violate its constitutional limitations and the States would need to make adjustments to the constitutional text in order to rein in the abuse of power by the federal government.”

2 Amendments can’t “rein in” the fed. gov’t when it “violate[s] its constitutional limitations” because when it does so, it is ignoring the existing limitations on its powers. Hello?

3 Mason’s concern was that the new fed. gov’t wouldn’t agree to amendments needed to correct defects in the new Constitution:

♦ Under the Articles of Confederation (our 1st Constitution), amendments had to be approved by the Continental Congress and all of the States (see ART. 13). So Art. V of the new Constitution dispensed with the requirement that Congress approve amendments.

♦ Who should be able to propose amendments? Madison wanted Congress to propose all amendments, either on their own initiative or at the request of 2/3 of the States. But Mason said the States should be able to propose amendments without asking Congress because Congress might become oppressive and not permit the States to get the necessary amendments.

So the convention method was added. And it provided a way for States to propose amendments. But it also provided a convenient opportunity to get a new Constitution, since the delegates would have that transcendent right, recognized in our Declaration of Independence, to throw off one government and write a new constitution which creates a new government.

George Mason hated the new Constitution. He said on Aug. 31, 1787 that he “would sooner chop off his right hand than put it to the Constitution as it now stands”; and if it wasn’t changed to suit his views, he wanted another convention. Everybody knew that to get a new Constitution, you need a convention.

Madison and the other Framers went along with adding the convention method because they knew the people had the right to meet in convention and draft a new Constitution whether or not the convention method was added to Art. V [e.g., Madison’s letter of Nov. 2, 1788 to Turberville p. 299 at 2.]; and they couldn’t stop People in the future from doing what they had just done. So Madison, Hamilton & John Jay promptly started warning of the dangers of another convention: see the Brilliant Men handout.

4 Here’s an illustration of what States soon saw as a defect in our Constitution: Art. III, §2, cl. 1 delegated to federal courts the power to hear cases “between a State and Citizens of another State”. But when a citizen of South Carolina sued the State of Georgia, the States were outraged! See Chisholm v. Georgia, 2 U.S. 419 (1793). So the 11th Amendment was ratified to take away from federal courts the power to hear such cases.

5 The Constitution drafted at the federal convention of 1787 delegates only a tiny handful of powers to the fed. gov’t. See this chart.

6 Madison continues, “… according to a process applicable by the States.” Madison always said that when States want amendments, they should ask their congressional delegation to propose them. E.g., Madison’s letter of Nov. 2, 1788 to Turberville (p. 299 at 2.).

7 See Madison’s Notes on Nullification (1835) HERE (p. 573-607).

8 The Tariff Act of 1828 violated our Founding Principle (2nd para of the Declaration of Independence) that the purpose of government is to secure the rights God gave us. God never gave us the right to be free of competition in business.

9 In the very next paragraph, Madison says that when there is a pattern of usurpations and abuses, we must step outside of the Constitution and resort to the original right of self-defense: resistance, i.e., nullification or revolution (p. 398).

10 E.g., Art. I, §8, cl. 11 delegates to Congress the power to declare war. But if we want the President to have that power, we should amend the Constitution to delegate that power to the President. We must not permit the President to exercise that power by usurpation!

11 If we wanted the fed. gov’t to exercise power over labor unions, wages & hours, safety standards, food & drugs, manufacturing standards, agriculture, energy, housing, transportation, education, medical care, the environment, etc., etc., etc., we should have amended the Constitution to delegate those powers to the fed. gov’t. But we ignored Washington’s advice, and permitted the fed. gov’t to exercise those powers by usurpation.

12 The Introduction to the Farewell Address (p. 3) says that George Washington composed it with the assistance of Alexander Hamilton and James Madison.

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November 11, 2018 Posted by | Amendments to the Constitution, Article V, Article V Convention, Convention of States project, Federalist No. 49, George Mason, James Madison, Madison's Journal of the Federal Convention of 1787, Madison's letter to Edward Everett, Michael Farris, Publius Huldah, Purpose of amendments to constitution, The Ten Commandments, Washington's Farewell Address, What our Framers gave us, what our Framers really said, why convention was added to Art. V | , , , , , , , , , , , , , | 14 Comments

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, political questions, Professor David Super, Rob Natelson | , , , , , , , , , , , , , | 21 Comments

The “Compact” Gimmick to circumvent the Powers granted to Congress by Article V

By Publius Huldah

The supremacy clause at Article VI, clause 2, US Constitution, says:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Two bills produced by the Convention of States Project (COSP), SJR 31 & HJR 49, which purport to provide for the selection and control of “commissioners” to an “interstate convention” for “proposing amendments” to our federal Constitution, were filed in the Virginia General Assembly this past session.  The General Assembly postponed consideration of the bills until 2019.

The bills assert that such an “interstate convention” is authorized by Article I, §10, clause 3; the 10th Amendment; and Article V of our Constitution.

As shown below, the bills are unconstitutional because they seek to circumvent Article V; and are not encompassed within Article I, §10, clause 3, or the 10th Amendment. Under the supremacy clause, they would be struck down.

1. What Article V says about amending our Constitution

Article V says:

“The Congress, whenever two thirds of both Houses shall deem it 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…”

Our existing 27 Amendments were obtained under the first method: Congress proposed them and sent them to the States for ratification or rejection.

We’ve never had a convention under Article V – they are dangerous! If Congress calls an Article V convention, our existing Constitution could be replaced with a new Constitution which sets up a completely new structure of government. 1

Nevertheless, the People granted to Congress at Article V the power to “call” a convention; and to the Delegates to the convention, the power to “propose amendments”. 2

Yet COSP, in brazen disregard of the plain meaning of Article V, has long insisted that the States “call” the convention; the States propose the amendments for the convention to rubberstamp; and the States will have total control over the Delegates to the convention.

SJR 31 & HJR 49 are an implicit admission that we who oppose an Article V convention have proved our point: Congress really does “call” the Convention; and pursuant to its grant of power to “call” the convention, Congress really is granted by Article I, §8, last clause, the power to make all laws “necessary and proper” to carry out the powers granted to Congress by Article V; and the States actually have no power over an Article V convention – except to ask Congress to “call” one. 3

The Congressional Research Service Report dated April 11, 2014 likewise reflects Congress’ clear awareness that it alone has the power to organize and set up an Article V convention. The Report says:

“First, Article V delegates important and exclusive authority over the amendment process to Congress…” [page 4]

“Second . . . Congress has traditionally laid claim to broad responsibilities in connection with a convention, including . . . (4) determining the number and selection process for its delegates; 4 (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” [page 4] [italics added]

And contrary to COSP’s previous assurances that the States would have total control over an Article V convention, the CRS Report says on page 27:

“In the final analysis, the question what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed and a convention assembles.”

In other words, we’ll have to get a convention before we know what the Delegates are going to do!

2. The new Gimmick to circumvent Congress’ powers under Article V

SJR 31 & HJR 49 make the bizarre claim that Article I, §10, clause 3, which says:

“No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State…”,

is really talking about an “interstate convention” for the States to meet and “propose amendments” to our Constitution!

First of all, our federal Constitution doesn’t address “interstate conventions”! 5 State and local governments and private organizations may hold nationwide conventions (gatherings) on an endless list of matters: trade shows, book fairs, sports events, high school marching band contests, agricultural fairs, meetings of County Sheriffs, whatever they like! And they don’t need permission from Congress.

Secondly, a “Compact with another State within the meaning of Article I, §10, clause 3, is separate, distinct, and totally unrelated to the Article V convention called by Congress for the purpose of addressing our federal Constitution. “Compact”, as used in Article I, §10, clause 3, means binding agreements or contracts between States which deal with state matters. Traditionally, “compacts” have been used to resolve such matters as boundary disputes between States; and may be used to address various other issues between States. 6

Article V governs amendments to our Constitution – not Article I, §10, clause 3!  Virginia may not lawfully set up any gimmick to circumvent the powers granted by Article V to Congress. And Congress may not lawfully approve a “compact” which violates our Constitution!

Thirdly, SJR 31 & HJR 49 claim the 10th Amendment gives States the power to hold an “interstate convention” to propose amendments to the Constitution. Rubbish! The 10th Amendment addresses powers “reserved to the States…or to the people.” It is inapplicable here because no powers respecting an Article V convention were reserved to the States: The People granted to Congress the power to “call” an Article V convention; and to the Delegates, the power to “propose amendments”. The only power the States have is to ask Congress to call the convention.

Once the requisite number of States has applied to Congress, it’s out of the States’ hands. Pursuant to Article I, § 8, last clause; 7 Congress has the power to make all laws necessary and proper to carry out its power to “call” the convention. And then, our Fate is in the hands of the Delegates; and they can do whatever they want – as they did in 1787.

3. The new Gimmick attempts to circumvent the Plenipotentiary Powers of the Delegates to an Article V Convention.

Article V shows on its face that the convention is the deliberative body. The Delegates hold the Power to “propose amendments”; or, to do what our Framers did at the federal “amendments” convention of 1787 (invoke the 2nd paragraph of the Declaration of Independence) and write a new Constitution which creates a new government.

So, while the States are free to propose amendments to their Congressional Delegations [and this is what James Madison advised]; 8 the States have no authority to dictate the amendments to be proposed at the convention called by Congress.

And as shown in “Why states can’t prevent a runaway convention” and “Delegates to an Article V Convention can’t be controlled by state laws! attempts to control Delegates with “unfaithful delegate” laws are laughably ineffective.

Apparently, COSP now concedes that “unfaithful delegate” bills won’t work, since with SJR 31 & HJR 49, COSP attempts to circumvent the plenipotentiary powers held by Delegates to an Article V convention, by fabricating a new kind of convention (meeting) out of Article I, § 10, clause 3!

4. The solution is to enforce the Constitution we already have

Americans don‘t know what our Constitution says and don’t care what it says. They want what they want; and elect politicians like themselves. The politicians made a mess. To fix the mess, Americans must read our Declaration of Independence and Constitution, and enforce them with their votes and by repudiating unconstitutional federal programs. State and local governments must enforce our Constitution by renouncing federal funds to implement unconstitutional programs and by nullification. See also James Madison’s specific suggestions on how States & Citizens can resist federal usurpations.

End notes:

1 This is why Brilliant Men (Madison, Hamilton, four US Supreme Court Justices, and other eminent jurists and scholars) warned against another convention. And this flyer sets forth the Facts of the federal “amendments convention” of 1787 at which our existing Constitution was drafted to replace our first Constitution (the Articles of Confederation).

2 The issue in U.S. v. Sprague (1931) was whether the 18th Amendment (Prohibition) should have been ratified by conventions in each State instead of by State Legislatures. The Supreme Court held that Article V “is a grant of authority by the people to Congress” and that the people “deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments.” Accordingly, Congress had authority to select ratification of the proposed 18th Amendment by State Legislatures instead of by conventions in each State.

3 THIS handy chart lists who has the power to do what respecting an Article V convention.

4 Congress is under no obligation to permit States to participate in the Convention. Congress has the power to appoint its own members, federal judges, or whomever else they want as Delegates!

5 “Convention” has several meanings. It can be a meeting or gathering, such as a national convention of County Court Clerks or architects; or it can refer to a treaty with foreign countries, such as the Hague and Geneva Conventions on the laws of war. The author of SJR 31 & HJR 49 may have fallen victim to the Fallacy of Ambiguity since he slips and slides between the two meanings. “Compact” in Art. I, §10, cl. 3, means “agreement” or “contract” – not meetings!

6 E.g., States could properly enter into “Compacts”, within the meaning of Art. I, §10, cl. 3, wherein they agree to prohibit waste being discharged into a River shared by them; or respecting the construction of a hydroelectric dam on the River. Even though the federal government has no delegated authority to deal directly with such issues; the requirement of Consent by Congress to such Compacts is proper because States situated above or below the proposed dam could be affected by the dam.

Neither the Federalist Papers nor Madison’s Journal of the Federal Convention of 1787 set forth what our Framers meant by “compacts” at Art. I, §10, clause 3. Here are two secondary sources: The Evolving Use and the Changing Role of Interstate Compacts: A practitioner’s guide, by Caroline N. Broun & Michael L. Buenger (see pages 1-9 for the historical basis of “interstate compacts”). See also Justice Story’s “Commentaries on the Constitution of the United States” (1833), Book 3, Ch. 35, §§ 1395-1403.

7 Former law professor and pro-convention operative Rob Natelson’s statements to the contrary are untrue. See “Rob Natelson perverts the Necessary and Proper Clause and thinks in circles”.

8 E.g., Madison’s letter of Nov. 2, 1788 to Turberville (pages 297-301) at the end of Madison’s point 2 [and then read Madison’s point 3!]

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June 13, 2018 Posted by | Article V Convention, Convention of States project, Faithful Delegate Laws, interstate conventions | , , , , , , , | 23 Comments

COS Project’s “Simulated Convention” Dog and Pony Show and What They Did There

By Publius Huldah

1. Foundational Knowledge

Our Constitution delegates only a handful of powers to the federal government. But 100 years ago, we started electing Progressives (Fabian socialists) to State and federal office. With the enthusiastic approval of the American People, the Progressives set up the socialist regulatory welfare governments (state and federal) we now have. It’s unconstitutional; but Americans didn’t care because they were being taken care of by the governments, and their children were getting “free” public school educations.

So for the past 100 years, the federal and state governments and the American People have ignored our Constitution.

Now that our socialist system is collapsing, along comes the “Convention of States” Project (COSP), blames all our problems on the federal government, and claims we can fix the federal government’s violations of our Constitution by amending the Constitution. 1

And they say amendments which will “rein in the abuse of power by the federal government” when it “violate[s] its constitutional limitations”, 2 can be obtained only at a convention called by Congress pursuant to Article V of our Constitution.

Article V provides that if two thirds of the States apply for it, Congress shall call a convention for proposing amendments to the Constitution. 3 However, Delegates would have the right, as recognized in the 2nd paragraph of our Declaration of Independence, to throw off the Constitution we have and write a new Constitution which creates a new government. This has happened before!

Our first Constitution was the Articles of Confederation. It had defects, so on February 21, 1787, the Continental Congress called a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation”. But instead of proposing amendments, the Delegates wrote a new Constitution, with an easier mode of ratification, 4 which created a new government. In Federalist No. 40 (15th para), James Madison invoked the Delegates’ right to abolish our form of government, as recognized in the Declaration of Independence, to justify ignoring their instructions and drafting a new Constitution which created a new government.

So! Ever since the federal convention of 1787, it has been known that any convention called to address our Constitution under Article V provides the opportunity to impose a new Constitution. 5 That’s why the enemies of our Constitution periodically push for an Article V convention. 6

In response to the current push, constitutionalists are warning Americans that if Congress calls an Article V convention, a new constitution with a new mode of ratification is likely to be imposed – probably a new constitution which moves us into the North American Union.

2. COSP’s “simulated” Article V convention

So during September 2016, COSP held an “invitation only” “simulated convention” in Williamsburg, Virginia attended by State Legislators handpicked by COSP, 7 to show us that Delegates to a real Article V convention called by Congress will do nothing more than propose amendments.

And lo! At the “simulated convention”, all the handpicked invitees did was propose six amendments to our Constitution – they didn’t “run away” and propose a new Constitution with a new mode of ratification!

COSP would like us to believe that their “simulated convention” proves that a real Article V convention called by Congress also won’t run away when, in fact, it proves nothing except that handpicked COSP invitees fall in line with the COSP agenda.

Now let’s look at the proposed amendments: COSP posted them HERE; an archived copy is HERE.

3. COSP’s six amendments

Like Newspeak in George Orwell’s “1984, the amendments would do the opposite of what COSP claims.

 

Fiscal Restraints Proposal 1”:

“SECTION 1. The public debt shall not be increased except upon a recorded vote of two-thirds of each house of Congress, and only for a period not to exceed one year.

SECTION 2. No state or any subdivision thereof shall be compelled or coerced by Congress or the President to appropriate money.

* * *”

So! Congress can’t increase the debt unless they decide to increase the debt. Wow. This is “fiscal restraints”?

If you read through the Constitution and highlight the powers delegated to the federal government, you will get a list of the objects on which Congress is authorized to spend money.

The reason we have a huge debt is because for 100 years, Congress has been spending on objects which aren’t on the list of delegated powers. The States go along with it because they get federal funds for implementing unconstitutional federal programs in their States. 31.9% of the States’ annual revenues is from federal funds. All this federal money is borrowed and added to the public debt!

To say that State Legislators display hypocrisy when they decry “out of control federal spending” when they have their hand out for all the federal money they can get, is an understatement. The amendment authorizes such spending to continue for as long as Congress continues to approve increases in the debt! The amendment legalizes – makes constitutional – all such spending and debt increases!

Section 2 gives us nothing. Our existing Constitution doesn’t permit the federal government to require States or local governments to spend money.

 

Federal Legislative & Executive Jurisdiction Proposal 1:

“SECTION 1. The power of Congress to regulate commerce among the several states shall be limited to the regulation of the sale, shipment, transportation, or other movement of goods, articles or persons. Congress may not regulate activity solely because it affects commerce among the several states. [boldface added]

SECTION 2. The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States. [boldface added]

SECTION 3. The Legislatures of the States shall have standing to file any claim alleging violation of this article. Nothing in this article shall be construed to limit standing that may otherwise exist for a person.

* * *”

Section 1: The original intent of the interstate commerce clause (Art. I, §3) is to prohibit the States from imposing tolls & tariffs on merchandize as it is transported through the States for purposes of buying & selling; and to permit the federal government to impose duties on imports & exports, both inland & abroad. 8

With Roosevelt’s “New Deal”, the federal government began to pervert the original intent so as to exert power over whatever they wanted to regulate.

The amendment legalizes the perversions! It delegates to the federal government powers it has already usurped to regulate the sale, shipment, transportation, or other movement of goods and articles.

Furthermore: the amendment delegates to the federal government a sweeping new power over the movement or transportation of persons across state lines! It would, e.g., authorize the federal government to prohibit use of privately owned vehicles to cross state lines, and to require prior written permission to cross state lines. I saw in communist East Europe & the Soviet Union a system where governments control movement of persons. Will “Papers, please” be heard at checkpoints in America? This malignant amendment would be constitutional authority to impose such a system here. 9

Section 2: The federal government has no existing constitutional authority to regulate intra state commerce, so the first clause of this section adds nothing our Constitution doesn’t already prohibit.

But the second clause delegates to the federal government another significant new power over persons: it comes verbatim from Randy Barnett’s so-called “bill of federalism”: 10

“…Congress shall have power to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”

Why does Barnett, who attended the “simulated convention” as “Committee Advisor”, want the federal government to have this new power? What’s an “act of war against the United States” – doing what the Bundys and their supporters did? The amendment delegates to Congress the power to define “acts of war against the United States” – and to re-define it from time to time – to encompass whatever they want!

We need to understand the implications of delegating such power to Congress. As with “treason” under the Tudors in England, anyone can be accused of “acts of war against the United States”. Does Randy Barnett, law professor, understand the implications? James Madison understood them and thus said that “treason” must be defined in the Constitution; 11 obviously, no one of Madison’s caliber was at the “simulated convention”.

Section 3: Our Framers didn’t advise the States to file lawsuits against the federal government when it violates the Constitution! Our Framers told the States to nullify such violations. 12

 

Federal Term Limits & Judicial Jurisdiction Proposal 1”:

“No person shall be elected to more than six full terms in the House of Representatives. No person shall be elected to more than two full terms in the Senate. These limits shall include the time served prior to the enactment of this Article.”

This amendment is a feel-good palliative which caters to Americans’ pervasive desire for a quick “fix” which permits them to avoid dealing with the real causes of their problems. See Term Limits: A Palliative not a Cure.

 

Federal Legislative & Executive Jurisdiction Proposal 2”:

“SECTION 1. The Legislatures of the States shall have authority to abrogate any provision of federal law issued by the Congress, President, or Administrative Agencies of the United States, whether in the form of a statute, decree, order, regulation, rule, opinion, decision, or other form. [boldface added]

SECTION 2. Such abrogation shall be effective when the Legislatures of three-fifths of the States approve a resolution declaring the same provision or provisions of federal law to be abrogated. This abrogation authority may also be applied to provisions of federal law existing at the time this amendment is ratified.

* * *”

Section 1: Article I, §1, US Constitution, provides that all legislative powers granted by the Constitution shall be vested in Congress. Only Congress may make laws [and laws are restricted to the powers granted in the Constitution].

Accordingly, executive orders and federal agency rules and orders are not “law”.

The amendment would supersede Art. I, §1. It would elevate to the status of “federal law” every order or regulation burped out by bureaucrats in the executive branch; every executive order signed by every President; and every order barked out by jack-booted thugs working for federal agencies. And unless three fifths of States agree that you don’t have to obey – you must obey or bear the consequences of violating what would be – thanks to this amendment – “federal law”.

Section 2: James Madison, Father of our Constitution, showed how individual States or several States could carry out resistance to the federal government’s unconstitutional encroachments. But the amendment would require 30 States to agree before any one State or person could defend itself!

 

Fiscal Restraints Proposal 2:

SECTION 1. Congress shall not impose taxes or other exactions upon incomes, gifts, or estates.

SECTION 2. Congress shall not impose or increase any tax, duty, impost or excise without the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately present such to the President. [boldface added]

SECTION 3. This Article shall be effective five years from the date of its ratification, at which time the Sixteenth Article of amendment is repealed.”

This amendment doesn’t impose “fiscal restraints” – it authorizes Congress to impose new and different taxes on us!

The words in boldface authorize Congress to impose “any tax” if three fifths of both Houses agree. “Any tax” includes a national sales tax and a national value added tax (VAT). Statists love the VAT because it raises a “gusher of revenue for spendthrift governments”. This is what will replace the income, gift, and estate tax.

 

Federal Legislative & Executive Jurisdiction Proposal 3”:

“Whenever one quarter of the members of the United States House of Representatives or the United States Senate transmits to the President their written declaration of opposition to any proposed or existing federal administrative regulation, in whole or in part, it shall require a majority vote of the House of Representatives and Senate to adopt or affirm that regulation. Upon the transmittal of opposition, if Congress shall fail to vote within 180 days, such regulation shall be vacated. No proposed regulation challenged under the terms of this Article shall go into effect without the approval of Congress. Congressional approval or rejection of a rule or regulation is not subject to Presidential veto under Article 1, Section 7 of the U.S. Constitution.”

As shown in The “Regulation Freedom” Amendment and Daniel Webster, rulemaking by federal agencies is unconstitutional as in violation of Art. I, §1 of our Constitution.

The proposed amendment would supersede Art. I, §1 and legalize such rulemaking! And the existing Code of Federal Regulations and the rulemaking process itself – which now violate the Constitution – would be made constitutional!

The solution to the burden created by unconstitutional federal agencies is to do away with the agencies! Downsize the federal government to its enumerated powers!

4. Conclusion

The “simulated convention” was a dog and pony show put on to produce amendments to con us into believing that a real Article V convention called by Congress won’t “run away”.

But it’s impossible to fix federal usurpations of non-delegated powers with amendments, because amendments can’t take away powers the Constitution didn’t delegate in the first place. Thus, the amendments the hand-picked attendees approved legalize powers already usurped or delegate sweeping new powers to the federal government over States and individual persons!

Statecraft is serious business which requires systematic study to master. The “simulated convention” shows we live in a time of constitutional illiteracy where people of good intent can be misled by persons of “insidious views”. Heed the words of Daniel Webster in his 4th of July Oration, 1802:

“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.”

Endnotes:

1 If your spouse commits adultery, will your marriage be saved if you amend the vows to permit adultery? When People violate the Ten Commandments, will morality be restored if we amend the Ten Commandments to permit sin?

2 Michael Farris’ words in “Answering the John Birch Society Questions about Article V” or HERE.

3 None of the Delegates to the convention of 1787 said the purpose of amendments is to rein in the fed. gov’t when it usurps power. They said the purpose is to fix defects in the Constitution. See The George Mason Fabrication at subheading 4.

4 Article XIII of the Articles of Confederation (AOC) required Amendments to the AOC to be ratified by the Continental Congress and all of the then 13 States. But Article VII of the new Constitution (the one we now have) provided that it would be ratified by 9 States.

5 The enemies of our Constitution knew from day one that they could get rid of our Constitution at an Art. V convention! Our present Constitution was ratified by the 9th State on June 21, 1788. In Federalist No. 85 (mid-August 1788), Hamilton addressed the arguments of the anti-federalists who were agitating for another convention in order to get rid of our new Constitution.

On Oct. 27, 1788, anti-federalist Patrick Henry introduced into the Virginia Assembly a Resolution asking Congress to call an Art. V convention. In Madison’s letter to Randolph of Nov 2, 1788 (pages 294-297), he speaks of Henry’s “enmity” “agst [against] the whole system” [the new Constitution]; and “the destruction of the whole system I take to be still the secret wish of his heart, and the real object of his pursuit.”

6 New Constitutions are already prepared or being drafted: e.g., the Constitution for the Newstates of America is ratified by a national referendum (Art. XII, §1). Globalists [e.g., the Council on Foreign Relations] who want to move us into the North American Union (NAU) need a new Constitution to transform us from a sovereign nation to a member state in the NAU.

7 COSP’s page is archived HERE. See “who attended the simulation” in right column. [Archived list of attendees is HERE or HERE.]

8 Proof of the original intent of the interstate commerce clause & how it was abused is HERE.

9 Yet, Legislators from 44 of the States at the “simulated convention” approved this!

10 See Barnett’s Amendment 2 – Limits of Commerce Power”. It’s archived HERE.

11 “Treason” is defined at Art. III, §3. In Federalist No. 43 (at 3.) Madison warns that the definition must be locked into the Constitution. Otherwise, malignant people fabricate definitions as needed in order to condemn their enemies.

Compare Art. I, §8, cl. 10 which delegates to Congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations”. In Federalist No. 42 (1st & 4th paras), Madison points out that this class of powers is among those which “regulate the intercourse with foreign nations” and so must be handled by the general [fed.] gov’t. And since everyone’s definition of the terms is different, the fed gov’t should define them. This class of powers wouldn’t affect private Citizens. For more on the limited criminal jurisdiction of the fed gov’t over private Citizens, see What Criminal Laws are Congress Authorized To Make?

12 See Nullification made Easy. And remember: State officials are required by the Oath at Art. VI to “support” the federal Constitution – not to obey the federal government!

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January 14, 2018 Posted by | Article V Convention, Code of Federal Regulations, Commerce clause, commerce clause, Convention of States project, Daniel Webster, dog and pony show, Fabian socialism, fabian socialists, James Madison, Michael Farris, Newspeak, Randy Barnett, simulated convention | , , , , , , , , , | 31 Comments

Exposing the real agenda behind the push for an Article V convention

This presentation was given on April 17, 2017 at the beautiful old Supreme Court Chamber at the Tennessee Capitol Building in Nashville.

Exhibit List

The proposed Constitution for the Newstates of America is HERE

The Chart which illustrates our Declaration, Constitution, federal structure, and enumerated powers is HERE.

The text of the “parental rights” amendment is HERE.

To see how six of Mark Levin’s “liberty amendments” do the opposite of what he claims, go HERE.

Federalist No. 16 is HERE.  See next to last paragraph.

To see – on one page – proof of the original intents of the “interstate commerce”, “general welfare”, and “necessary and proper” clauses, go HERE.

HERE is a synopsis of what happened at the Federal Convention of 1787 re the development of Article V with links to the pages in Madison’s Journal of the Federal Convention.

Our Framers NEVER said the purpose of amendments is to restrain the feds if they usurp powers. What they actually said is:

The “novelty & difficulty of the experiment requires periodical revision” (Gerry at the federal convention on June 5, 1787);

“The plan now to be formed will certainly be defective, as the Confederation [Articles of 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. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account….”(Geo. Mason at the federal convention on June 11, 1787);

amendments remedy defects in the Constitution (Hamilton at the federal convention on Sep. 10, 1787);

useful amendments would address the “organization of the government, not … the mass of its powers” (Federalist No. 85, 13th para);

“amendment of errors” & “useful alterations” would be suggested by experience (Federalist No. 43 at 8.)

The Congressional Research Service Report dated April 11, 2014, is HERE. The Report exposes as false the assurances that the States would be in control of a convention. The Report says:

“First, Article V delegates important and exclusive authority over the amendment process to Congress…” (page 4)

“Second . . . Congress has traditionally laid claim to broad responsibilities in connection with a convention, including . . . (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” (page 4)

“. . . [In previous bills filed in Congress] [a]pportionment of convention delegates among the states was generally set at the formula provided for the electoral college, with each state assigned a number equal to its combined Senate and House delegations. Some bills included the District of Columbia, assigning it three delegates, but others did not include the federal district. . .” (page 37)

“… A related question concerns vote allocation in an Article V Convention. Would delegates vote per capita, or would each state cast a single vote, during the convention’s deliberations, and on the final question of proposing amendments?…” [then follows a discussion of different views on this undecided issue] (page 41)

“Article V itself is silent on membership in an Article V Convention, so it is arguable that Congress, in summoning a convention to consider amendments, might choose to include the District of Columbia and U.S. territories as either full members at a convention, or possibly as observers. As noted previously, some versions of the Article V Convention procedures bills introduced in the late 20th century did provide for delegates representing the District of Columbia, although not for U.S. territories . . .” (page 42)

Page 40 of the Report shows there doesn’t seem to be any:

“. . . constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention. . . “

So! As the Report states on page 27:

“In the final analysis, the question what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed and a convention assembles.”

In other words, we’ll have to get a convention before we know how it is going to operate. But by then, it will be too late to stop it. And if the proceedings are secret, we won’t find out anything until they are finished.

The Chart which shows who (States, Congress, & Delegates) has the power to do what respecting an Art. V convention is HERE.

HERE is Rob Natelson’s speech of Sep. 16, 2010 announcing that he would no longer call it a “constitutional convention”, but would henceforth call it among other things, “a convention of states”. (page 2)

HERE are the Articles of Confederation, our first Constitution. Article XIII required approval of amendments by the Continental Congress and by every State.

HERE is Federalist No. 40 (James Madison) See especially the 15th para.

HERE is the Resolution of the Continental Congress dated Feb. 21, 1787, to call a convention to be held at Philadelphia,

“…for the sole and express purpose of revising the Articles of Confederation…”

HERE are the Credentials of the Delegates to the Federal Convention of 1787 and instructions from their States. These Instructions encompassed:

“alterations to the Federal Constitution which, when agreed to by Congress and the several States, would become effective”: Virginia, Pennsylvania, Delaware, Georgia, S. Carolina, Maryland, & New Hampshire.

“for the purpose of revising the Federal Constitution”: Virginia, Pennsylvania, North Carolina, Delaware, and Georgia;

“for the sole and express purpose of revising the Articles of Confederation”: New York, Massachusetts, and Connecticut.

“provisions to make the Constitution of the federal Government adequate”: New Jersey

Rhode Island boycotted the convention.

HERE is the proposed Constitution for the Newstates of America. Article XII, Sec. 1 (page 27) addresses ratification by a national referendum.

Read HERE about the proposed Constitution for the New Socialist Republic in North America. It was prepared by the Revolutionary Communist Party, USA. HERE is the text of their proposed Constitution.

Read HERE about The Constitution 2020 movement funded by George Soros and supported by Marxist law professors throughout the Country as well as Cass Sunstein and Eric Holder. They want a Progressive Constitution in place by the year 2020.

Read HERE about the Council on Foreign Relations’ (CFR) Task Force Report on the North American Union. Canada, the US, and Mexico are to merge and a Parliament will be set up over the 3 countries. The CFR site has a link to the Task Force Report. Read it!

News Flash:  The CFR has removed the Task Force Report from their website.  Now, one must purchase a copy.  It’s on Amazon

Update Jan. 8, 2018:  The Task Force Report is back up on the CFR web page.  GET IT WHILE YOU CAN – IT LAYS OUT WHAT THE GLOBALISTS HAVE PLANNED FOR US

It is not the “grass roots” which is pushing for an Article V convention. The big money is behind it. See THIS and THIS.

James Madison’s Journal of the Federal Convention of 1787 shows that on May 29, 1787, the delegates to that convention voted to make their proceedings secret.

Here is Federalist No. 49 where James Madison warned against having a convention to address breaches of the federal Constitution.

HERE is James Madison’s letter of Nov. 2, 1788 to Turberville warning of the terrible dangers of an Article V convention. Madison NEVER supported the convention method of amending our Constitution.

Here is Federalist No. 85 (last para) where Alexander Hamilton said he “dreads” the prospect of another convention because the enemies of the Constitution want to get rid of it.

  • [Note: Our Constitution was ratified by the 9th State on June 21, 1788. Federalist No. 85 was published during mid-August 1788. The anti-federalists wanted to get rid of our Constitution. They argued that our Constitution isn’t perfect – so we should have another convention so we can get a new Constitution. They also argued that Amendments to our Constitution are too hard to get it. Those were the arguments which Hamilton addressed in Federalist No. 85.]

Here is Justice Arthur Goldberg’s op ed in The Miami Herald of Sep. 14, 1986 where he warns us that “…any attempt at limiting the agenda would almost certainly be unenforceable.”

HERE is Chief Justice Warren Burger’s June 22, 1988 letter to Phyllis Schlafly:

“…there is no effective way to limit or muzzle the actions of a Constitutional Convention * * * After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda * * * A new Convention could plunge our Nation into constitutional confusion and confrontation at every turn…”

Justice Scalia said on April 17, 2014 at the 1:06 mark of this video

“I certainly would not want a Constitutional Convention. I mean whoa. Who knows what would come out of that?”

  • [The convention lobby quotes Law Professor Scalia from 1979, when he didn’t object to an Article V convention. By 2014, the wiser Justice Scalia had changed his mind & now “feared” a convention.]

HERE are additional letters and articles by eminent Jurists and scholars to the same effect.

HERE is where James Madison said our Constitution depends on the people having the “virtue and intelligence to select men of virtue and wisdom” to office. [see text at 223]

Since the States created the federal government, they are the final authority on whether their creature has violated the constitutional compact the States made with each other. Those are our Framers’ words you can find them HERE and HERE.

HERE is the Pew Report: At the “select a state” box, you can find out what percentage of your State government’s revenue was from federal funds.

For a model Rescission Resolution, go HERE and then scroll down to “Take Action”.

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April 19, 2017 Posted by | Amendments to the Constitution, Article V, Article V Convention, constitutional convention, Convention of States project, Council on Foreign Relations, Declaration of Independence, Delegates to a convention can't be controlled, Faithful Delegate Laws, Federal Convention of 1787, George W. Bush, Mark Levin, North American Union, not on the list | , , , , , , , , , , | 28 Comments

The TOP DOWN push for an Article V convention

By Publius Huldah

Ever since, some 60 years ago, the Ford Foundation produced the Constitution for the Newstates of America, it has always been the political elite and the big money who are behind the push for an Article V convention.  Today, people and politicians who posture as men of virtue and “conservatives principles” are being paid to support an Article V convention – e.g. http://www.dallasnews.com/news/texas-legislature/2017/03/01/major-conservatives-piggy-banks-behind-texas-obsession-amending-constitution

See also, http://le.utah.gov/house2/CofI/IVORYK1.pdf

Anyone who refuses to look into this is willfully blind and morally culpable.

The billionaires who are buying an Article V convention (Koch Brothers, George Soros), have no intention of limiting the power and jurisdiction of the  government over us!

The propaganda put out by the con-con lobby is able to take root in those who don’t know what our Constitution already says; don’t understand our Founding Principles; and don’t know our History on throwing off governments and setting up new ones.  We’ve already done it twice!

The enemies of our Constitution want to do it a third time.  Since they know you wouldn’t agree to it; they are telling you things which aren’t true.

Listen up:

Our Declaration of Independence says at the 2nd paragraph that a People have the right to throw off their form of government and set up a new one. We invoked that Principle in 1776 to throw off British Rule. We invoked that Principle again in 1787 to throw off the Articles of Confederation and the government it created, and set up a new Constitution [the one we have now] which created a new government.

People who don’t know that are unable to understand that if there is an Article V convention today, the Delegates can do the same thing! Throw off the Constitution we have and set up a new one which creates a new government.

For heavens sake, People! New Constitutions are already written and waiting in the wings for an Article V convention! Here’s one of them – it’s ratified by a national Referendum. The States don’t vote on it. The States are dissolved and replaced by regional governments answerable to the new national government. http://www.sweetliberty.org/issues/concon/newstates.htm#.WLrJEn98ExE

George Soros wants a Progressive Constitution in place by the year 2020. http://keywiki.org/Constitution_2020

George W. Bush, the Council on Foreign Relations, and others want to move the United States into the North American Union. Canada, the US, and Mexico are to merge and a Parliament set up over them. In order to do this, they need a new Constitution for the US to transform us from a sovereign nation to a member state in the NAU. How do they get a new Constitution? At an Article V convention.  How do they get an Article V convention?  Pay people who pose as conservatives to tell the American People that we need a convention to get amendments which will limit the power of the federal government.

And the people who don’t understand our Founding Principles, don’t know our History, and don’t know what our Constitution already says, fall for the subterfuge.

READ the Task Force Report on the NAU. Heidi Cruz was on the Task Force which wrote the Report:  http://www.cfr.org/canada/building-north-american-community/p8102

Americans! Wake up! You are being scammed and tricked and lied to. And bought and paid for politicians and charlatans are selling you into slavery.

God gave you a brain.  It is wicked for you to refuse to use it.

Update Jan. 12, 2018All US Presidents since (and including) Ronald Regan have been advancing our movement into the NAU. Watch this excellent 15 minute video: https://youtu.be/lNhp9H3yCsI

This is a Revolution against us by the global elite. This push for an Article V convention is from the top down – it is how the Elite can impose their will on us.

Do not continue to unwittingly assist the global elite in enforcing their will on us!

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March 9, 2017 Posted by | Article V Convention, constitutional convention, Convention of States project, Council on Foreign Relations, Delegates to a convention can't be controlled, George W. Bush, Heidi Cruz, North American Union | , , , , , , , , , , , | 52 Comments

Open Letter to State Legislators Everywhere: The Other Side of the Article V Convention Issue

By Publius Huldah

If there is an Article V convention, we will lose the Constitution we have, and another Constitution will be imposed.

You are not getting both sides of this issue. Throughout the Country, those of us who are warning of the dangers of an Article V convention are marginalized, ridiculed, smeared, shut out of meetings, and barred from speaking in public forums. THIS short essay from the Principled Policy Blog describes what we face every day.

THIS article is an account by Donny Harwood, a Citizen of Tennessee, describing how he was shut out of the public meeting which the Convention of States people held on October 19, 2015 at the Millennium Maxwell House Hotel in Nashville, Tennessee. According to The Leaf-Chronicle, a number of Tennessee Legislators were at the meeting. A prominent Tennessee radio talk show host was also present.

And everyone at the meeting was prevented from hearing the other side of this issue.

The reason convention proponents forbid dissenting voices is that we prove, by means of Facts and original source documents, that the claims and promises of the convention proponents are false. HERE are some of the original source documents Legislators would hear about if they were presented with the other side of this issue.

We are in the final stage of a takeover. Statists of every variety [this includes the phony “conservatives”] want a new Constitution to legalize our transformation from the constitutional Republic created by our existing Constitution to a dictatorship.

To get a new Constitution, they need a convention. So they are telling conservatives that our Constitution is causing our problems and we need to amend the Constitution. And they say we can only make the amendments they say we need at a convention.

Article V of our Constitution provides two methods of amending our Constitution. Congress:

1. Proposes amendments, or

2. Calls a convention to propose amendments if 34 States apply for it.

The first method was used for our existing 27 amendments: Congress proposed them and sent them to the States for ratification or rejection.

Under the second method, Congress calls a convention. We have never had a convention under Article V. Such conventions are extremely dangerous. THIS is one of many articles which illustrate the danger, sets forth warnings from two of our Framers and two former US Supreme Court Justices, and explains why Delegates to a convention can NOT be controlled by State laws.

National conventions are dangerous because the Delegates have the plenipotentiary power to impose a new Constitution with a new mode of ratification. The video by Chuck Michaelis at the bottom of THIS page explains these plenipotentiary powers. Such Delegates are the Sovereign Representatives of The People and have the power to impose a new Constitution. This has already happened in our history:

♦ At the Federal Convention of 1787, this plenipotentiary power was exercised to replace our first Constitution, the Articles of Confederation, with the Constitution we now have. On February 21, 1787, The Continental Congress called a convention “for the sole and express purpose of revising the Articles of Confederation”. But instead of proposing amendments to our first Constitution, the Delegates wrote a new Constitution – the one we now have.

♦ Furthermore, the new Constitution had a new and easier mode of ratification: Article XIII of The Articles of Confederation (p 8-9) provided that Amendments to the Articles had to be approved by the Continental Congress and all of the then 13 States. But the new Constitution, drafted at the “amendments” convention of 1787, provided at Art. VII thereof that it would be ratified upon approval by only nine of the then existing 13 States.

So! Not only do Delegates to a national convention have this plenipotentiary power to impose a new Constitution; the precedent to do so has already been established.

Statists have been pushing for a convention for 50 years – ever since the Ford and Rockefeller Foundations produced the Constitution for the Newstates of America. They need a convention to get it imposed.

Several other Constitutions are already prepared and waiting for a convention.

If there is a convention, the only issues will be (1) whose Constitution will be imposed by the Delegates; and (2) what new mode of ratification will be set forth in the new Constitution.

♦ The Constitution for the Newstates of America imposes a totalitarian dictatorship. Article XII, § 1 thereof provides for ratification by a Referendum called by the President. The States are dissolved and replaced by regional governments answerable to the new national government.

♦ The Revolutionary Communist Party USA has a Constitution for The New Socialist Republic in North America.

♦ George Soros, Marxist law professors all over the Country, Cass Sunstein and Eric Holder want a Marxist Constitution in place by the year 2020.

♦ The “Convention of States” project wants a “re-written” Constitution which legalizes powers the federal government has already usurped, and delegates new powers to the federal government such as total power over children. Yet they are telling conservatives that they want a convention so they can get amendments “to limit the power and jurisdiction of the federal government”!

♦ The political establishment [both major parties] wants to transform the United States from a sovereign nation to a member state of the North American Union:  Canada, the United States, and Mexico are to merge and surrender their sovereignty to a Parliament which is to be set up over the three countries.  The United States will need a new Constitution to bring about this transformation.  This is being imposed on us by stealth.  Read the Task Force Report of the Council on Foreign Relations HERE. And to see how the European Union is working out for the formerly sovereign nations of Europe, watch this 7.5 minute video by Pat Condell.

In the past, conservatives defeated the periodic pushes for a convention. So the statists changed tactics: Now, they are marketing it to appeal to conservatives: they are telling conservatives that a convention is the only way to rein in the federal government. These statists, some wearing conservatives’ clothing, are using the classic techniques of statists: They are not telling the truth; they are smearing their opponents; and they have divided conservatives. Conservatives who were deceived by the marketing have been induced to attack and exclude conservatives who are warning of the dangers of a convention. And they won’t let us address their groups.

Our existing Constitution really was a 5,000 year miracle. We delegated only a handful of enumerated powers to the federal government – you can see what we delegated HERE. Our Constitution doesn’t need “fixing” – we need to restore the Constitution we already have. We begin the Restoration by reading and learning our Constitution and Declaration of Independence. And enforcing it! See, in this regard, the Tenth Amendment Center’s 2015 State of the Nullification Movement Report.

For the Love of God and Country, heed this warning.

Nov. 25, 2015; revised Dec. 23, 2015.

 

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November 25, 2015 Posted by | Article V Convention, Convention of States project, Delegates to a convention can't be controlled, Federal Convention of 1787 | , , , , , , , , | 52 Comments

Behind The Mask of Convention Supporters – “whacking away” at our Constitution

quote

Representative Sickles may have meant this as a warning of what would be the attitude of Delegates to a convention – as opposed to what he himself would  do as a Delegate to a convention.

But the point is: We don’t want anyone “whacking away” at our Constitution – and Delegates to an Art. V convention would have the power to do just that….

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February 6, 2015 Posted by | Amendments to the Constitution, Article V, Article V Convention, constitutional convention, Convention of States project, re-writing the Constitution | , , , , , , , | 34 Comments

Why was the Convention Method put into Article V?

See this – only 3.5 minutes:

But for the complete story of what happened at the Federal Convention of 1787 respecting the development of Article V, read this:  https://publiushuldah.wordpress.com/article-v/

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February 4, 2015 Posted by | Article V, Article V Convention, constitutional convention, Convention of States project | , , , , | 6 Comments

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