Publius-Huldah's Blog

Understanding the Constitution

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”. (pages 1-2)

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!

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’s revenue was from federal funds.

For a model Rescission Resolution, go HERE and then see box on right side which says, “Take Action”.

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April 19, 2017 Posted by | Amendments to the Constitution, Article V, Article V Convention, Balanced Budget Amendment, 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

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

Men Who Are Working Together to Destroy the US Constitution

conspirators to destroy constitution

In the photos are: The Kochs, Kissinger, Soros, Lessig, Norquist, Meckler, Levin, Farris.  They want our US Constitution changed!

I recognize aspects of Fabian socialism in the leaders of the so-called “convention of states” project and in the “Compact for America” gang.

Socialists fall into basically two camps: The Fabians [the intellectual elite should run everything] and the Syndicalists [the workers should run everything].

Fabian socialists took over America 100 years ago – the Progressives of the early 1900s were Fabians; and both major political parties ever since have been controlled by Fabians. Fabians hold the view that the masses are so stupid that they need to be steered, directed, managed, and controlled by the “intellectual” elite – by means of laws and regulations and government controls (including population control).

We KNOW, from Mark Levin’s “liberty amendments” and from Michael Farris’ “parental rights” amendment, that they want an all-powerful central government which controls every aspect of our lives. We KNOW, from Nick Dranias’ version of a “balanced budget” amendment, that he wants Congress to have the power to impose a NATIONAL SALES TAX and a NATIONAL VALUE ADDED TAX – in addition to the income tax.

Americans! You better start looking at the “fruits” of these people instead of what they tell you. They tell you what you want to hear. Meanwhile, as the texts of their proposed amendments show, they plan to enslave you and reduce you to poverty.

Use your own heads! If you continue to go by what these people tell you – instead of going by the texts of the Amendments they propose – then you will have proved that Americans really are so stupid that they deserve to be controlled by the “elite”.  Open your eyes! God gave YOU a brain – why do YOU refuse to use the Gift God gave you?

Read about Mark Levin’s phony “liberty amendments”.

Read about Michael Farris’ despicable “parental rights” amendment which delegates control over families to the federal government. HERE is the text of his proposed amendment.

Read about Compact for America’s (Nick Dranias’) version of a “balanced budget” amendment which delegates to Congress power to impose a national sales tax and a national value added tax (VAT) in addition to keeping the income tax.

Time is running out.  You better open your eyes now.
Nov. 9, 2015

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November 9, 2015 Posted by | Amendments: Parental Rights Amendment, Fabian socialism, Mark Levin, Michael Farris, Nick Dranias, Parental Rights Amendment, The Liberty Amendments | , , , , , , | 21 Comments

PH’s Article V Convention & Nullification Events in Indiana for May, 2015

I will speak on the deadly danger of an Article V convention, and of the two remedies our Framers actually told us to use when the national government usurps power, at the following events:

Date: Wednesday, May 13, 2015 in Auburn, Indiana
Host: DeKalb County 9/12 Group
Location: St. Andrew Evangelical Presbyterian Church, 320 W. 4th Street, Auburn, Indiana 46706                                   Time:  5:30 p.m. for food; 6:30 p.m. for meeting, EDT.

See Face Book page HERE

 

Date: Thursday, May 14, 2015 in Elkhart, Indiana
Host: TEA-MAC  with Constitutional Sheriff Brad Rogers.
Location:  Trinity United Methodist Church, 2715 E. Jackson Blvd., Elkhart, Indiana 46516
Time: 7:00 p.m. EDT

THE DEADLY DANGER OF ARTICLE V CONVENTION Add to DeliciousAdd to DiggAdd to FaceBookAdd to Google BookmarkAdd to MySpaceAdd to NewsvineAdd to RedditAdd to StumbleUponAdd to TechnoratiAdd to Twitter

May 8, 2015 Posted by | Uncategorized | , , , , , , , , , , , , , , , , | 4 Comments

PH’s Article V Convention & Nullification Events in Kentucky & North Carolina

I will speak on the deadly danger of an Article V convention, and of the two remedies our Framers actually told us to use when the federal government usurps power, at the following events:

Date: Thursday, March 19, 2015 in Union, Kentucky.
Host: John Birch Society – Kentucky
Location: Triple Crown Country Club, 1 Triple Crown Blvd, Union, KY 41091
Time: Noon to 2:00 p.m.  Eastern Standard Time.
This is a lunch event – lunch is $16.00

 

Date: Tuesday, March 24, 2015 in Greensboro, North Carolina.
Host: Conservatives for Guilford County (C4GC)
Location: The Oakbranch Conference Center, 23 Oak Branch Drive, Greensboro, NC 27407
Time: 6:30 – 8:30 p.m., Eastern Time.

See flyer here: https://www.facebook.com/conservatives4gc/photos/gm.342448609282620/10152684533065373/?type=1&theater

 

Date:  Saturday, March 28, 2015 in Charlotte, North Carolina.
Host:  The Rightful Remedy Conference
Location: University of North Carolina at Charlotte, 9201 University City Blvd, Fretwell Building, Room 100
Time: 9:00 a.m. to 5:00 p.m. Eastern Time

On internet: http://rightfulremedyconference.com/

On face Book:  https://www.facebook.com/events/386914354780520/

 

Love to see you at any of these events!  And if you can’t come, please forward to your contacts in these areas.

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March 15, 2015 Posted by | Uncategorized | , , , , , , , , , , | 29 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

Straight Talk About An Article V Convention

By Publius Huldah

This speech was presented to Campaign For Liberty – Memphis on March 24, 2014. It exposes some of the false claims made by those pushing for the so-called “convention of states”. 1

Below are hyperlinks to the exhibits referred to in the speech. Additional resources are also included.

The one page Chart which illustrates our Declaration, Constitution, and federal system is HERE.

The Congressional Research Service (CRS) Report 2 cited in the speech was dated March 7, 2014. CRS’s revised 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) 3

“. . . [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; see also page 41)

“. . . 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 CRS 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.”

Do you see? But by then, it will be too late to stop it. HERE is former US Supreme Court Chief Justice Warren Burger’s letter confirming this. 4

The text of the “parental rights” amendment is HERE. For two papers showing how Michael Farris’ proposed amendment delegates power over children to the federal and State governments, go HERE  and, for the follow up paper, HERE.

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

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

The proponents of a convention portray the States as victims of federal tyranny. But the Truth is that the States voluntarily surrendered their retained powers, and the natural rights of The People, TO the federal government. And they did it for federal funds. Today, States get from 20% (Alaska) to 45.3% (Mississippi) of their State budgets from the federal government. State governments don’t want to rein in the feds! The people who run your State will do anything to keep their federal funds. HERE is the Pew Report.

Our Framers – those who actually signed the Constitution – NEVER said the purpose of amendments is to rein in the feds if they usurp powers. What they actually said is:

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

HERE are the Articles of Confederation. Note that Art. XIII required approval of amendments by every State.

HERE is the Resolution, made by the Continental Congress on February 21, 1787 (p 71-74), to call a convention to be held at Philadelphia:

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

HERE is James Madison’s letter of Nov. 2, 1788 to Turberville. Copy it to word processing, make paragraph breaks, & highlight it. Madison NEVER supported the convention method of amending our Constitution.

HERE is Joe Wolverton’s article about the Socialists’ involvement in the push for a convention.

HERE is the Constitution for the Newstates of America. Article XII addresses ratification by a referendum called by the President. Read HERE about the proposed Constitution for the New Socialist Republic in North America. Read them and see what is being planned for you by people you think are on your side.

HERE is the screen shot of Jordan Sillars’ comment re re-writing the Constitution.

For Q’s & A’s on this issue, go HERE.

Endnotes:

1 There is no such thing as a “convention of states” to propose amendments. The term is a marketing gimmick used by proponents of an Article V convention to manipulate people into believing that the States would control an Article V convention – from start to finish.

Article V, US Constitution, provides two methods for proposing amendments to the Constitution:

1. Congress proposes amendments and submits them to the States for ratification [the method we used for our existing 27 Amendments]; or

2. Congress calls a convention for the purpose of proposing amendments [for good reason, we have never used this method].

2 Even though we have never had an Article V convention; Congress has examined procedures for “calling” a convention so as to be ready if the need arises. The CRS Report proves that Congress has historically viewed its powers respecting “calling” a convention as exclusive and extensive. I thank Robert Brown for bringing the CRS Report to my attention.

3 The position Congress has historically taken in this regard is totally consistent with Article I, Sec. 8, last clause, which delegates to Congress power to make all laws “necessary and proper” to carry out the power vested in Congress at Art. V to “call” the convention.

4 Folks! For the sake of your Posterity, you must understand this: After a convention is convened, the delegates can do whatever they want – including coming up with an entirely new Constitution with its own new method of ratification. Chief Justice Burger wrote in his June 22, 1988 letter to Mrs. Phyllis Schlafly:

“… there is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the Confederation Congress “for the sole and express purpose. . .”

The federal convention of 1787, which was called by the Continental Congress “for the sole and express purpose of revising the Articles of Confederation”, should serve as a warning: The delegates to the 1787 convention ignored their instructions from the Continental Congress [and from their States]; ignored Art. XIII of the Articles of Confederation which required the States to obey Congress on matters covered by the Articles, and wrote an entirely NEW Constitution with a NEW method of ratification which required only 9 of the 13 States for ratification.

Credits:  Many thanks to Devvy Kidd, Blue Tail Gadfly, and M. Craig Elachie, from whom I lifted the very best lines in the speech. PH

Posted October 11, 2014.

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October 11, 2014 Posted by | Amendments to the Constitution, Article V, Article V Convention, constitutional convention, Convention of States project, Federal Convention of 1787, James Madison, Jordan Sillars, Liberty Amendments, Mark Levin, Michael Farris, Necessary and Proper clause, Phony right wing, re-writing the Constitution, Retained Powers, The Liberty Amendments | , , , , , , , , , , , , , , , , , , , | 15 Comments

Mark Levin’s “Liberty” Amendments: Legalizing Tyranny

By Publius Huldah

For 100 years, the federal government has usurped powers not delegated to it in our Constitution.

What should we do about it? Should we reclaim our existing Constitution and put an end to the usurpations?

Or should we “modernize” the Constitution by changing it so as to delegate to the federal government the powers it has usurped – so as to legalize what is now unconstitutional?

Mark Levin begins “The Liberty Amendments” by saying he doesn’t believe the Constitution requires “modernization through amendments”. But he then proposes a series of amendments, six of which modernize our Constitution to delegate to the federal government most of the powers it has usurped during the last 100 years.

And each of his six amendments does the opposite of what its title promises. I’ll show you. 1

Levin’s amendment to “limit the federal bureaucracy” [p 99-100 of his book]

George Washington’s cabinet had four members: Secretary of State, Secretary of War, Secretary of the Treasury, and Attorney General. Those functions are authorized by our Constitution. 2

But today there are numerous agencies in the Executive Branch of the federal government. Where is the constitutional authority? What Article, Section, and Clause authorizes the Departments of Agriculture, Education, Energy, Labor, Transportation, HHS, HUD, DHS, EPA, SBA, etc., etc., etc.?

There is no constitutional authority! Accordingly, all these agencies are unconstitutional as outside the scope of the powers delegated in our Constitution.

Well then, a person who wanted to “limit the federal bureaucracy” would demand that these agencies be closed, and their functions returned to the States and The People, right?

But Mark Levin doesn’t do this. Section 1 of his amendment legalizes all these agencies. It says:

“All federal departments and agencies shall expire if said departments and agencies are not individually reauthorized in stand-alone reauthorization bills every three years by a majority vote of the House of Representatives and the Senate.”

As long as Congress periodically “reauthorizes” the agencies – they remain.

Levin’s amendment thus changes the constitutional standard for whether an executive agency lawfully exists from whether it carries out an enumerated power [as in Washington’s Cabinet] to whatever the President wants and Congress agrees to. Do you see?

Now look at Section 2 of Levin’s amendment to “limit the federal bureaucracy”. It says:

“All Executive Branch regulations exceeding an economic burden of $100 million, as determined jointly by the Government Accountability Office and the Congressional Budget Office, shall be submitted to a permanent Joint Committee of Congress, hereafter the Congressional Delegation Oversight Committee, for review and approval prior to their implementation.”

Article I, §1, of our Constitution says only Congress may make laws. 3 But since Woodrow Wilson, executive agencies in the federal government have been churning out regulations which govern all aspects of our lives. These comprise the now gigantic Code of Federal Regulations.

All these regulations are unconstitutional as in violation of Art. I, §1! 4

Well then, one would expect that a person who wanted to “limit the federal bureaucracy” would demand the repeal of existing regulations and an end to all future rulemaking, right?

Not Levin! Section 2 of his amendment legalizes all existing regulations and the rule making process. Levin’s “fix” is merely to form a congressional committee to review certain regulations before they are imposed on the American People.

And so, federal executive agencies will continue to churn out millions of pages of regulations – but now, they will be constitutional because Levin’s amendment makes it all lawful.

Do you see? Levin’s amendment legalizes the status quo and does the opposite of what he claims.

Levin’s amendment “to limit federal spending” (p 73 -74)

Our Constitution limits federal spending to the enumerated powers. If you go through the Constitution and highlight the powers delegated to Congress or the President, you will have a complete list of the objects on which Congress may lawfully spend money. That is how our Framers controlled federal spending. It is the enumerated powers which limit spending – not the amount of revenue the federal government generates or the size of the GDP. Do you see?

The reason we have a crushing debt is because for 100 years, the federal government has ignored the limits – already set forth in the Constitution – on its spending.

Well then, a person who wanted to “limit federal spending” would demand that Congress begin to downsize the federal government and restrict spending to the enumerated powers, right?

But Levin doesn’t do this. Section 1 of his amendment legalizes all the spending which is now unconstitutional as outside the enumerated powers. It says:

“Congress shall adopt a preliminary fiscal year budget no later than the first Monday in May for the following fiscal year, and submit said budget to the President for consideration.”

Levin’s amendment thus legalizes the unconstitutional status quo where the President and Congress adopt a “budget” and spend money on whatever they put in the budget! Levin would permit Congress and the President to lawfully spend money on whatever they want – spending which is now unlawful because our Constitution doesn’t authorize it.

Furthermore, Levin’s amendment does nothing to control federal spending. While Sections 3 & 4 of his amendment pretend to limit spending to revenues or to a percentage of the GDP; Sections 6 & 7 permit Congress to suspend the spending limit and continue to raise the national debt. 5

Levin’s amendment “to limit federal taxing” (p 75)

Our Constitution doesn’t permit the federal government to levy taxes so that Congress and the President will have the funds to spend on whatever they want.

Congress may lawfully levy taxes only to raise the funds to carry out the enumerated powers. Article I, §8, clauses 1 & 2 say:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States …” [and] “To borrow Money on the credit of the United States;”

Immediately after clauses 1 & 2 follows the list of enumerated powers we delegated to Congress for the Country at Large. 6

Add to this short list of enumerated powers, the “housekeeping powers” itemized elsewhere in the Constitution (e.g., the census); the salaries authorized by Art. I, §6, cl. 1; Art. II, §1, next to last clause; Art. III, §1, cl. 1, and others on the civil list; and you see the purposes for which Congress is authorized to levy and collect taxes, borrow money, and spend money, for the Country at Large. 7

So! Congress should not be levying taxes except to generate revenue for its constitutional functions. If Congress restricted its spending to those few powers delegated in the Constitution, the federal government would need very little money from us.

One would expect that a person who wants to “limit federal taxation” would demand that the federal government stop taxing to raise money to spend on unconstitutional purposes, right?

Not Levin! While his amendment limits the federal income tax to 15% of income – it institutionalizes the present practice where Congress lays & collects taxes for any purposes whatsoever. 8

Levin’s amendment “to protect private property” (p 137)

The federal government has no lawful authority to own land for any purpose other than those enumerated in the Constitution. Article I, §8, next to last clause, permits the federal government to have exclusive Legislative Jurisdiction over the District of Columbia [which was not to exceed “ten Miles square”], and Places purchased with the Consent of the State legislatures for the erection of forts, dock-Yards, and other needful buildings (e.g., federal courthouses, post offices) to carry out the enumerated powers.  So the federal government may lawfully own buildings and lands which are purchased to carry out its enumerated powers.

The federal government has no lawful authority to own national parks, grazing areas, forests, and such, because those are not enumerated powers. 9

And the federal government has no lawful authority to restrict peoples’ use of their own land. Nowhere in our Constitution did we delegate that power to the federal government! Accordingly, all federal laws and regulations (EPA, etc.) which pretend to restrict an owner’s use of his land are unconstitutional as outside the scope of powers delegated.

Furthermore, the States’ and local governments’ powers of eminent domain and other “takings” of private land are addressed in their own State Constitutions and laws. This is NOT a federal issue!

But Levin’s amendment “to protect private property” changes all of the above. It says:

“When any governmental entity acts not to secure a private property right against actions that injure property owners, but to take property for a public use from a property owner by actual seizure or through regulation, which taking results in a market value reduction of the property, interference with the use of the property, or a financial loss to the property owner exceeding $10,000, the government shall compensate fully said property owner for such losses.”

Levin’s amendment:

Changes the constitutional standard for federal ownership of lands from carrying out an enumerated power to whatever someone in the federal government deems a “public use” [which can be anything];

Legalizes what are now unconstitutional holdings of lands by the federal government – such as grazing lands;

Legalizes “takings” by regulation – restrictions via regulations on the use of private lands – by all levels of government;

Takes from the States and The People their retained powers over eminent domain and regulatory takings, and makes it a federal issue under the control of the federal government; 10 and

Provides that as long as a taking does not reduce the value of the property by more than $10,000, the governments don’t have to pay the property owner one red cent. So! If your local or State or federal government takes some of your land, or restrict its use by regulation, Levin’s amendment requires compensation to be paid if the “taking” exceeds $10,000. If the government decides that your loss is less than $10,000, you eat the loss. The amendment legalizes government theft of private property.

Levin’s amendment “to protect the vote” (p 183-184)

Before our Constitution was ratified, the States qualified & registered voters. Qualifications were set forth in their State Constitutions, and requirements differed from State to State.  This power was expressly retained by the States with Art. I, §2, cl. 1, U.S. Constitution. 11

The four voting amendments reduced this retained power of the States, and delegated to the federal government power to stop States from denying suffrage to citizens on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), or age for citizens eighteen years of age or older (26th Amendment).

Except as restricted by these four amendments, the States retain their pre-existing power to set qualifications for registering citizens to vote, as long as they do not deny it on account of race, sex, failure to pay a tax, or age for those 18 years or more. States remain free to deny registration on other grounds – such as conviction of a felony or illiteracy. And of course, States retained power to restrict voting to citizens!

But the retained powers of the States to set voter qualifications for registration were diminished far beyond the scope of the amendments, due to usurpations by the federal government, and because the States forgot that they retained at Art. I, §2, cl. 1 most of their original power to qualify & register voters.

In Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument, I show how the federal government infringed upon the States’ retained powers over voter qualifications & registration; and how the two judges in that case wrongly ruled that Arizona could not require applicants for registration to provide proof of citizenship!

So! What should we do about non-citizens voting? Here is a novel idea: The States should man up and reclaim their powers retained by Art. I, §2, cl. 1; tell Eric Holder to take a hike; require all currently registered voters to provide proof of citizenship; and refuse to register new voters unless they provide proof of citizenship. Enforce the Constitution we have!

   But Section 1 of Levin’s amendment “to protect the vote” says:

“Citizens in every state, territory, and the District of Columbia shall produce valid photographic identification documents demonstrating evidence of their citizenship, issued by the state government for the state in which the voter resides, as a requirement for registering to vote and voting in any primary or general election for President, Vice President, and members of Congress.”

Levin’s amendment (it has 5 Sections) rewards the federal government for unlawfully forbidding States from requiring applicants to prove they are citizens, by transferring more power over voter qualifications & registration to the federal government. 10

But Levin’s amendment does even more harm than vesting in the federal government a power it already usurped – it ushers in a national ID card. Who thinks the feds won’t dictate the contents of the card and keep copies? [Do you really think a national ID card is a great idea?]

To add insult to injury, Levin’s amendment doesn’t even prohibit non-citizens from voting – it merely requires citizens to get an ID card before they can register to vote. Non-citizens are not required to get ID cards. The supreme Court (which will now lawfully have judicial power over this issue) will decide whether aliens can vote.

Levin’s amendment “to promote free enterprise” (p 117)

In Federalist No. 22 (4th para) and Federalist No. 42 (11th &12th paras), Hamilton & Madison explain the original intent of the “interstate commerce” clause:  It is to prohibit States from imposing tolls & tariffs on articles of merchandize as they are transported through the States for purposes of buying and selling. Until the mid-1930’s, this was widely understood. Here is a full proof of the original intent of that clause and the story of how the supreme Court usurped power over interstate commerce.

The original intent of that clause is still the supreme Law of the Land! 12 So the States must man up and enforce that original intent. They must ignore – nullify – all pretended federal laws, regulations, and judicial opinions which are contrary to that original intent.

Levin’s amendment “to promote free enterprise” says:

“SECTION 1: Congress’ power to regulate Commerce is not a plenary grant of power to the federal government to regulate and control economic activity but a specific grant of power limited to preventing states from impeding commerce and trade between and among the several states.”

“SECTION 2: Congress’s power to regulate Commerce does not extend to activity within a state, whether or not it affects interstate commerce; nor does it extend to compelling an individual or entity to participate in commerce or trade.”

Section 1 broadens the powers of the federal government from prohibiting States from imposing tolls & tariffs on articles of merchandize as they are transported through the States for purposes of buying and selling, to prohibiting the States from doing anything which “impedes” commerce and trade between and among the States.

Many things can be said to “impede” commerce and trade. And who will decide what “impedes” and what doesn’t “impede”? Five judges on the supreme Court.

Section 2 mentions two instances where Congress’ power to regulate Commerce does not extend. This is dangerous because of the legal maxim, Expressio Unius Est Exclusio Alterius (the expression of one thing is the exclusion of the other).

Accordingly, Congress’ power to regulate commerce would extend to other instances. Which ones? We don’t know – the supreme Court will decide – on a case by case basis.

Conclusion

Levin’s amendments legalize – make constitutional – the very abuses they purport to correct, nullify the natural rights of the people, and fundamentally change the constitutional design.

Even though our Constitution is not being enforced, it still declares this federal government lawless! The true rule of law is still on our side, 13 but not for much longer if we foolishly allow our Constitution to be re-written.

P.S. added Nov. 10, 2015: Here, from Levin’s own website, is a list of “conservatives” who support Mark Levin’s proposed amendments.  I suggest Americans STOP letting other people tell us who is a “conservative”.  STOP blindly accepting other peoples’ words as Truth.  Most of the time, most people don’t know what they are talking about – they are merely repeating what they have heard.  But YOU can stop this in yourself, and you can help stop other people from doing it. Here is the link: http://www.marklevinshow.com/2014/03/17/the-liberty-amendments-in-paperback/

Endnotes:

1 Telling the Truth about a person’s proposals isn’t “demonizing” him. People angrily reject valid criticism of Levin’s proposals because they have made an idol of him. If their loyalty were to Truth – instead of to their idol – they would want to be set straight.

2 Article II, §2, and:

Secretary of State: Art. I, §8, cl. 3

Secretary of Treasury: Art. I, §2, cl. 3; Art. I, §8, cl. 1; Art. I, §9, cl. 4-7; Art. VI, cl. 1

Secretary of War: Art. I, §8, clauses 11-14

Attorney General: Art. I, §8, cl. 6, 10 & 17; Art. III, §§2 & 3; Art. IV, §2, cl.2

3 Article I, §1, says: “All legislative Powers herein granted shall be vested in a Congress of the United States…” [emphasis mine]

4 They are also unconstitutional as outside the scope of powers delegated to the federal government.

5 I explain the problems with “balanced budget” amendments here.

6 These are the enumerated powers over the Country at Large listed at Art. I, §8:

    • Clause 3: regulate “commerce” [For the Truth about the “commerce clause”, go here];

    • Clause 4: uniform laws on naturalization and bankruptcies;

    • Clause 5: coin money & regulate its value, and fix standard of weights & measures;

    • Clause 6: punish counterfeiting;

    • Clause 7: establish post offices & post roads;

    • Clause 8: issue patents & copyrights;

    • Clause 9: set up federal courts inferior to the supreme court;

    • Clause 10: punish piracies & felonies on the high seas and offenses against the Law of Nations;

    • Clauses 11-14: war, letters of marque & reprisal, Army & Navy, and rules for the military

    • Clause 15-16: the Militia.

 

7 The anti-federalists objected to Art. I, §8, cl. 1 & 2. They claimed:

“…the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.”

James Madison answered in Federalist No. 41 (last 4 paras) that clauses 1 & 2 permit Congress to levy taxes & borrow money only to carry out the enumerated powers! Madison said:

“Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it… But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning … is an absurdity…” [boldface mine]

So! Article I, §8, cl.1 is merely a “general expression”, the meaning of which is “ascertain[ed] and limit[ed]” by the clauses which “immediately follow” it. In other words, clauses 1 & 2 grant to Congress the power to raise money; and clauses 3-16 enumerate the objects on which Congress may appropriate the money so raised, thus limiting clauses 1 & 2. Do you see?

8 Levin’s amendment also corrects – on behalf of the feds – the following: When the 16th Amendment was ratified, “income” apparently didn’t include “wages”. Accordingly, it would be unconstitutional to force people to pay “income” taxes on “wages” – and such would thus be a proper object of nullification by States. But Levin’s amendment legalizes the status quo and rips this remedy from the States.

9 When our Constitution was ratified, the new federal government acquired (from its predecessor) the Western Territory (Federalist No. 7, 2nd & 3rd paras, and Federalist No. 43 at 5.) over which the new federal government was delegated, by Art. IV, §3, general legislative powers. As the Territory was broken up into new States, the general legislative powers would expire and sovereignty [except as to the few powers delegated exclusively to the new federal government] would be transferred to the new State.

10 Amendments to the Constitution generally increase the powers of the federal government: They usher in implementing federal statutes & executive agency regulations, and judicial power over the issue is transferred to the federal courts. Art. III, §2, cl.1, says, “The judicial Power shall extend to all Cases … arising under this Constitution …” Do you really not see?

11 Article I, §2, cl. 1, says:

“The House of Representatives shall be composed of members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. [boldface mine]

So! Whoever votes in elections for their State House, is eligible to vote for members of the federal House of Representatives. See also Federalist No. 57 (5th para) & Federalist No. 52 (2nd para).

12 Article VI, cl. 2, the “supremacy clause”, states that only our Constitution, federal laws made “in Pursuance” of the Constitution, and Treaties made “under the Authority of the United States”, shall be the supreme Law of the Land. Supreme Court opinions are NEVER part of the supreme Law of the Land! But we have wrongly made them the only Law of our Land.

13 What is “the Rule of Law”? What is the Rule of Man?

Our Constitution is based on God’s model for civil government as set forth in the Bible. The foundational Principle of God’s model is that the civil authorities are under the law. God is The Lawmaker – the kings are to apply God’s Law:

    • Deut. 17:18-20: The king is to write out a copy of God’s Law. He is to have it by him and read from it all his life so that he may keep, observe, and apply it.

    • 1 Kings 2:1-4: King David on his deathbed tells Solomon he must conform to God’s ways, and observe his statutes, commandments and judgments, as written in the Law of Moses.

The parallel in our Constitution is that the Constitution is the Supreme Law which the civil authorities are to obey. Noah Webster’s 1828 American Dictionary defines “constitution”:

“…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.”

So our Constitution is the Standard by which the validity of all Acts of Congress, all acts of the Executive Branch, all judicial opinions, and all Treaties is measured and judged (Art. VI, cl. 2).

So law comes from a higher source than the civil authorities. The “Rule of Law” prevails when the civil authorities obey that higher Law – be it God’s Law or our Constitution.

Tyrants, on the other hand, claim that they are the source of law. The Roman Caesars, Stalin, Hitler, the dictator of N. Korea and Obama all claim that their will is “law”. Consider Obama’s usurpatious executive orders and rules made by his executive agencies. This is the “Rule of Man” – when the civil authorities deny they are subject to a higher law (be it God’s Law or the Constitution), and hold that their will is “law”. Do you see? PH

revised Jan 10, 2016.

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April 25, 2014 Posted by | Amendments to the Constitution, Liberty Amendments, Mark Levin, The Liberty Amendments, Voter eligibility, Voter Qualifications | , , , | 26 Comments

Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments!

By Publius Huldah

What Mark Levin says in “The Liberty Amendments” in support of an Article V convention is not true.1

On one side of this controversy are those who want to restore our Constitution by requiring federal and State officials to obey the Constitution we have; or by electing ones who will.  We show that the Oath of Office at Art. VI, last clause, requires federal 2 and state officials to support the Constitution.  This requires them to refuse to submit to – to nullify – acts of the federal government which violate the Constitution.  This is how they “support” the Constitution!

We note that the Oath of Office requires obedience to the Constitution alone.  The Oath does not require obedience to persons, to any agency of the federal government, or to any federal court.

We understand that resistance to tyranny is a natural right – and it is a duty.

We have read original writings of our Framers and know what our Framers actually told the States to do when the federal government violates the Constitution: Nullification of the unlawful act is among the first of the recommended remediesnot one of which is “amendment of the Constitution”.

It is already proved in James Madison Rebukes Nullification Deniers, that our Framers endorsed nullification by States of unconstitutional acts of the federal government.  Thomas Jefferson and James Madison summed it up as follows:

“…when powers are assumed which have not been delegated, a nullification of the act4 is “the natural right, which all admit to be a remedy against insupportable oppression…” 5

The claims of the nullification deniers have been proven to be false.  To persist in those claims – or to do as Levin seems to do and ignore the remedy of nullification – is intellectually and morally indefensible.  So why don’t they apologize to the public and recant their errors?

Instead, they continue to tell us that what we need is a “convention of the States” (which Levin and his mentors insist is provided by Article V of the Constitution) to propose amendments to the Constitution, and that this is the only way out.

Yes, they tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is …. to amend the Constitution!

Do you see how silly that is?

 Levin’s Amendments

Levin starts his book by saying how bad things are and how the federal government has trampled and mangled the Constitution.  Those pages are true.  And they serve the purpose of making readers believe that Levin is “on our side”.  And because of that, many are induced to lay aside their critical thinking skills and accept on trust what Levin tells them. That is a deadly mistake.

Levin’s amendments actually gut our Constitution.  Most increase the powers of the federal government by making lawful what is now unconstitutional because it is not an “enumerated power”. Others put a band-aid on a problem without solving the problem. The amendments pertaining to “overrides” undermine the Constitution as the Objective Standard of what is lawful and what is not – and substitute majority vote therefor. 6

A Defective Constitution? Or a Disobedient Federal Government?

We must distinguish between defects within a Constitution, and a government’s refusal to obey the Constitution to which it is subject.  These are different problems calling for different remedies.

There were defects in the Constitution produced by the Federal Convention of 1787, such as provisions permitting slavery.  Provision for amendment must be made to repair such defects. 7

But our problem now is a disobedient federal government.  That calls for different remedies – and our Framers spelled them out. 3

It is idiotic to assert that you can rein in a federal government which ignores the Constitution by amending the Constitution!  Yet, that is “The Levin Plan”.

Now let us read Article V:

What Article V Really 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, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…”  [boldface mine]

Note that Congress “calls” the ConventionThe States don’t “call” it – all they can do is apply to Congress for Congress to call it.

There are many questions about Article V conventions; and James Madison raised them on two occasions at the Federal Convention of 1787: 8

  • On September 10, Madison remarked on the vagueness of the term, “call a Convention for the purpose”:  How was a Convention to be formed?  By what rule decide?  What the force of its acts?
  • On September 15, Madison commented on this again, and said that difficulties might arise as to the form, the quorum, etc., which in constitutional regulations ought to be avoided when possible.

Mr. Madison saw that these questions are not addressed by Article V.  Eagle Forum has also raised this issue in Twenty Questions about a constitutional convention.

But since Congress “calls” it, Congress has the power to appoint whomsoever they will as delegates;9  and nothing in the Constitution says they can’t do this.

Now note that Art. V provides for two conventions:

  • The first is the one called by Congress to propose amendments.
  • After amendments are proposed, Art. V empowers Congress to select the mode of ratification: Shall the State Legislatures be the body to ratify or reject?  Or shall each State convene a convention for the purposes or ratifying or rejecting the proposed amendments?

The only convention Art. V authorizes States to convene is one within their respective borders to ratify or reject an amendment proposed by Congress or by the convention Congress called.

What Levin Claims Article V Says

As you see, Art. V makes no provision for a “state convention process” where the States control the convention.

Yet Levin makes the bizarre claims (p 16-17) that Art. V authorizes this “state convention process”; and that the convention called by Congress pursuant to Art. V is really:

  • A “creature …of the state legislatures”;
  • That during ratification of our Constitution, the Founders always talked about conventions for proposing amendments as representing the States; and
  • That the state legislatures determine the method for selection of their delegates; and the subject matter of the convention.

Does Levin cite any authority for these claims?  Words of our Framers, perhaps?

No!  He cites an article written by former law professor, Robert G. Natelson, who Levin says is an “expert” on this “state convention process” (p16, notes 28 & 29).

Here is the article by Natelson Levin cites as “authority” for his claims.  Note that:

  • Natelson announces that he will no longer call what he wants a “constitutional convention”.  Henceforth, he will call it a “convention for proposing amendments”, an “Article V Convention”, an “amendments convention” or a “convention of the states”. 10
  • Natelson doesn’t cite any authority from our Framers for the claims Levin regurgitates in his book.  Instead, Natelson cites other law review articles; and
  • Natelson claims it was “custom” at the time of our Founding for States to have all these powers in conventions.

Custom?

Natelson’s article is no authority at all.  And even if he had proven that the “custom” at the time of our Framing was for States to have all these powers in conventions [someone really should have told James Madison about this “custom”]; what is there to make the Congress of today follow this 18th century  “custom” when Congress “calls” the convention under Art. V?

Levin also says he knows Congress’ role in the “state application process” is minimal and ministerial because:

  • The Framers and ratifiers adopted this “state convention process” for the purpose of establishing an alternative to the congressionally initiated amendment process; and
  • Alexander Hamilton said so in Federalist Paper No. 85.

Here, Levin commits the logical fallacy of “circular reasoning”:  We know, Levin argues, that Congress’ role in the state application process is “minimal and ministerial” because the Framers adopted this as an alternative to the method where Congress proposes the amendments directly.  Do you see?

Levin next claims that in Federalist No. 85, Hamilton said, respecting an Art. V convention, that Congress has “no option”, “will be obliged”, and that “nothing in this particular is left to the discretion of that body” (p 16-17).

Levin misrepresents what Hamilton says.  In Federalist No. 85, Hamilton merely says that Congress must call a convention when two-thirds of the States apply for it:

 “… By the fifth article of the plan, the Congress will be obliged … on the application of the legislatures of two thirds of the States … to call a convention for proposing amendments … The words of this article are peremptory. The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body. …”

Levin wrongly extends Congress’ lack of discretion on the issue of “to call or not to call” to what follows the “call”:  How the convention is to be formed, the appointment of delegates, the other  questions raised by Madison on September 10 & 15, 1787, and Eagle Forum’s Twenty Questions.

I have never seen any of the Framers say that Congress has no power over what follows Congress’ “call”; and Levin doesn’t produce evidence that any of them ever did.

Levin misrepresents what happened at the Federal Convention of 1787.

This 4 page chart lays out what really happened at that Convention respecting Article V.

To introduce his discussion of that Convention, Levin makes the following fanciful claims:

“The Constitution itself provides the means for restoring self-government and averting societal catastrophe (or, in the case of societal collapse, resurrecting the civil society) in Article V.” (p 12)

“The fact is that Article V expressly grants state legislatures significant authority to rebalance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful…” (p12-13)

Article V says no such thing!  Read it and see.

Levin then quotes Edmund Randolph & George Mason, delegates to the Convention, as support for his claims respecting the purpose of Art. V.

But Randolph & Mason wanted a method of amendment Congress had nothing to do with. This was an issue at the Convention; Randolph & Mason held the minority view.

The majority view – the one reflected in the ratified version of Article V – involves Congress in both methods of amendment.  Congress either:

  •   Proposes the amendments; or
  •  “Calls” a convention when the Legislatures of 2/3 of the States apply for it.

Our Framers’ Concerns about “Conventions”

Now let us examine the “convention for proposing amendments” which Congress calls pursuant to Art. V; the “runaway” the Federal Convention of 1787 turned into, and “general conventions”.

We saw that James Madison raised concerns on September 10 & 15, 1787, about Art. V conventions called by Congress, because of questions respecting how was a Convention to be formed, by what rule, & the procedures of such conventions.

Yet Levin claims that in Federalist No. 43, Madison shows he considered an Art. V convention as prudent a method of amendment as having Congress propose the amendments (p 15).

Madison does not say that in Federalist No. 43! 11

Second, Levin’s claim is contradicted by Madison’s words in his letter of November 2, 1788 to G. L. Turberville on the same subject.

In his letter to Turberville, Madison speaks, with reference to modes of originating amendments, of both a “general convention” and an “Article V Convention”, on the one hand; and, on the other hand, “the origination of amendments in Congress”.

Madison advises that amendments be originated in Congress – not in an Art. V Convention, for the various reasons set forth in his letter; and that:

“2. A [“general”] Convention cannot be called without the unanimous consent of the parties who are to be bound by it, if first principles are to be recurred to; or without the previous application of ⅔ of the State legislatures, if the forms of the Constitution [Art. V] are to be pursued. The difficulties in either of these cases must evidently be much greater than will attend the origination of amendments in Congress, which may be done at the instance of a single State Legislature, or even without a single instruction on the subject…” [boldface mine]

Do you see?  Madison advises that when States want amendments, they instruct their Congressional delegation to pursue it.  This is the best way for the States to “originate amendments”!

That is the mode Madison strongly recommended; that is the mode we have followed.  On May 5, 1789, Rep. Bland (pages 258-261) introduced into Congress the petition from the State of Virginia for an Art. V Convention to propose amendments.  But on June 8, 1789, Madison (pages 448-460) introduced 12 proposed amendments for Congress to propose to the State Legislatures.  And on September 24, 1789, the House & Senate having agreed on the wording of the proposed 12 amendments; the House requested the President to transmit them to the States for ratification. 

If we cannot elect to Congress people who will follow the instructions of their State Legislatures & constituents and propose those amendments which actually need to be made; how can we trust Congress to “call” a convention?

And as to another “general” or “runaway” convention, perish the thought!:

On September 15,1787, in response to Randolph’s & Mason’s demands for another “general convention”,  Mr. Pinckney pointed out that nothing but confusion and contrariety will spring from calling forth the deliberations and amendments of the different States, on the subject of government at large.  States will never agree in their plans; and the deputies to a second convention, coming together under the discordant impressions of their constituents, will never agree.  “Conventions are serious things, and ought not to be repeated.”

In Federalist No. 85 (9th para), Hamilton spoke of:

“…the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded…”

James Madison warned against another general convention in his letter to Turberville :

“3… an election into it would be courted by the most violent partizans on both sides; it … would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. … it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first Convention, which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America…” [boldface mine]

Do we have “violent partizans”, “individuals of insidious views”, and any who would exploit an opportunity to sap “the very foundations of the fabric” today?  Yes, we do.  They are in Congress, the executive branch, the federal Courts, “conservative” circles – and they are invading our Country at a furious rate.  And what now is the “present temper of America”?

Why a “Runaway” Article V Convention is a Real Possibility and a Grave Danger.

Pursuant to the authority granted by Article XIII of The Articles of Confederation, the Continental Congress Resolved on February 21, 1787 (p 71-74):

Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” [boldface mine]

So!  The Convention of 1787 was called by the Continental Congress for the “sole and express purpose” of proposing revisions to the Articles of Confederation.

But the delegates ignored these limitations and wrote a new Constitution. 12

As to delegates, the Continental Congress expressly directed the States to appoint the delegates.

But there is no requirement in Art. V of our Constitution that States be permitted to appoint delegates; and no “custom” from the era of the Continental Congress can bind the Congress of today.

So if Congress of today were to call an Art. V convention, Congress would most likely get delegates who would do what Congress wants.

And will Congress appoint Islamists as delegates?  La Raza Mexicans?  Other special interest groups?  How can Congress be prevented from appointing whomsoever they will?

And if the delegates duly appointed by Congress, and acting under the Authority of Congress, come up with a new Constitution, will the new Constitution outlaw Christianity?  (Obama is outlawing it in the military, and Congress isn’t doing a thing about it).  Will it institute Sharia? Will it disarm the American People?  Will it follow the UN Model where “rights” are privileges granted and withdrawn by the State?  Will it outlaw private property?

And this new Constitution will have its own mode of ratification.  This new mode of ratification can be whatever the delegates want – a majority vote in Congress, perhaps?

There is no way to stop them from “running away” and writing a new Constitution with its own mode of ratification. They can cram a new Constitution down your throat and you won’t be able to do a thing about it.

On page 15, Levin commits a formal fallacy (an argument defective as to form) when he attempts to prove that an Art. V convention can’t possibly turn into a “runaway”. Here is the form of his argument:

  1. He was originally skeptical of “the state convention process” because it could turn into a “runaway”.
  2. Art. V says a proposed amendment has no effect unless ratified by ¾ of the States.
  3. Therefore, the “state convention process” can’t result in a “hijack of the Constitution” [“runaway”].

His conclusion (3) is a form of non sequitur – it doesn’t follow from the premises (1 & 2).  And our concern is not with amendments – those are subject to approval by three-fourths of the States.  Our concern is that the convention will “runaway” and write a new Constitution with a new mode of ratification which does not require approval by three-fourths of the States.  Do you see?

Conclusion

Few of us can name even 5 of the enumerated powers of Congress and 4 of the enumerated powers of the President.  Why?  Because we never bothered to learn our Constitution.  Alexander Hamilton expected THE PEOPLE to be “the natural guardians of the Constitution”.  But you can’t “guard” the Constitution if you don’t trouble yourself to learn it.

Since we never bothered to learn the Constitution, we elected politicians who also hadn’t bothered to learn it.  So they ignored the Constitution when they assumed office.

This is why, after more than 100 years of electing politicians who ignore the Constitution, we are now under tyranny and headed for disaster.

Do we now want a way out which allows us to avoid confronting our own personal failures as Guardians of the Constitution?  When charlatans who “sound good” offer us a scapegoat, do we jump on it?  Do we chant, “The Constitution is broken!  Fix the Constitution!”  And shall we pretend that we too know all about how to amend a Constitution most of us never bothered to read?

Our Constitution depended on our knowing our Constitution and in electing representatives who would obey it – and getting rid of them when they didn’t.

James Madison said on June 20, 1788 at the Virginia Ratifying Convention:

“…. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.”

We are in a “wretched situation” because we lost our virtue.  Renounce handouts and pride in pretended “knowingness”.  Learn the enumerated powers of Congress and the President.  This chart will get you started.  Learn about nullification.  Form delegations and go to your State Legislators, educate them and demand they start nullifying unconstitutional acts of the federal government.  States should nullify obamacare!  If Legislators aren’t willing to renounce federal funding, recall or defeat them! PH

Endnotes:

1 We must stop believing whatever we are told.  We must demand proof by original source documents, and think for ourselves.

2 The President’s Oath is set forth at Art. II, §1, last clause.

3 These are among the remedies our Framers advised when the federal government usurps power:

►In Federalist No. 44 (12th para from end), Madison says elect more faithful representatives!:

“… In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers…”

But we keep reelecting the same sorry people because we know their names and they are in our party.

►States should nullify unconstitutional acts of the federal government! This is proven with links to original sources in James Madison Rebukes Nullification Deniers.

►In Federalist No. 46 (last half), Madison shows how individual States or several States carry out various degrees of resistance to the federal government’s unconstitutional encroachments.  See also: What Should States Do When The Federal Government Usurps Power?

►In Federalist No. 28 (last 5 paras), Hamilton says:

“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success …” [italics mine]

“…The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them…”

“It may safely be received as an axiom …that the State governments will … afford complete security against invasions of the public liberty by the national authority…. The legislatures … can at once adopt a regular plan of opposition…”

“…When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people … who are in a situation, through the medium of their State governments, to take measures for their own defense…”

4 Thomas Jefferson, The Kentucky Resolutions of 1798, 8th Resolution.

5 James Madison, Notes on Nullification (1834). The quote is near the end.  Use “find” function.

6 Later, I will show why Levin’s proposed amendments gut our Constitution.  Meanwhile, you read the Constitution, learn the enumerated powers of Congress, and see if you can figure out what is wrong with the proposed amendments.  Use your own head and trust no one.

7 Alexander Hamilton said on Sep. 10, 1787 that an easy mode should be established for fixing defects which will probably appear in the new system ... the National Legislature will be the first to perceive, and will be most sensible to, the necessity of amendments…

8 What happened at the Federal Convention of 1787 respecting Art. V is laid out in this 4 page chart.

9 “Citizens for Self-Governance”, headed by the Michael Farris who is pushing the “parental rights amendment, represents that the “Convention of the States” will soon:

“…open the application process for leadership positions across the country. Consider applying to be a District Captain, Legislative Liaison, or State Director…”

thereby making the gullible believe that they can be a “player” in this “Convention of the States”.

10 Phyllis Schlafly, Kelleigh Nelson, Henry Lamb and others have done such a magnificent job of warning The People of the dangers of a constitutional convention, that many now understand that such is likely to result in a new Constitution – with its own method of ratification – being forced on us.

So!  Proponents now call it by another name: “Convention of the States” or “state convention process”.  Is the purpose of the name change to deceive you? To make you think it is something “different” from the Art. V convention Congress calls?

11 In Federalist No. 43, Madison comments on Art. V:

“8…That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other…”

12 We were fortunate (except for slavery) with the Constitution of 1787, even though the Federal Convention was a “runaway”.  Look who was there!:  George Washington, James Madison, Alexander Hamilton, and Benjamin Franklin; and they weren’t drowned out by subversives.  They would be today. PH

September 15, 2013; revised Dec. 5, 2013; Dec. 31, 2013.

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September 15, 2013 Posted by | Article V, Article V Convention, constitutional convention, Federal Convention of 1787, Mark Levin, The Liberty Amendments | , , , , , | 130 Comments

   

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