STOP an Article V Convention – read the proposed new Constitutions which our enemies want to impose
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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” organizations (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 objected. 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?
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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
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.
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 people should be able to propose amendments without asking Congress because Congress might become oppressive and not permit the people to get the necessary amendments.
So the convention method was added. And it provided a way for the People 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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PUBLIUS HULDAH
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