Publius-Huldah's Blog

Understanding the Constitution

Honest discourse about Article V convention needed

By Publius Huldah

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

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

“Poisoning the well” fallacy

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

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

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

Misrepresentations, omissions, and irrelevant “academic research”

1. Natelson asserts:

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

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

2. Natelson asserts:

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

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

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

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

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

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

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

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

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

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

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

3. Natelson asserts that “academic research” shows:

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

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

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

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

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

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

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

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

Conclusion

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

Endnotes:

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

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

3 The States’ instructions are HERE at endnote 9.

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

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June 24, 2018 Posted by | Article V Convention, constitutional convention, convention lobby, Convention of States project, Delegates to a convention can't be controlled, James Madison, Professor David Super, Rob Natelson | , , , , , , , , , , , , , | 21 Comments

Rob Natelson Perverts the Necessary and Proper Clause and Thinks in Circles

By Publius Huldah.

In former law professor Rob Natelson’s recent paper, “No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention” [read it HERE or HERE], he makes several untrue statements and commits the gross fallacy of making a circular argument which begs the question.

Natelson is the intellectual guru of those pushing for an Article V convention. Among the false claims they make is that a convention will be controlled by the States, and Congress has nothing to do with it. 1

That false claim rests on Natelson’s (1) fanciful theory of “customs”, (2) his tortured interpretation of the necessary and proper clause, (3) his misrepresentations of Supreme Court cases, and (4) his crimes against the Laws of Logic.

I’ll show you.

What Does Article V Say?

Article V provides two methods of proposing amendments to our Constitution. Congress proposes amendments and submits them to the States for ratification; or Congress “calls” a convention if 2/3 of the States apply to Congress for a convention. All our existing 27 amendments were proposed using the first method. We have never had a convention under Article V – for good reason. 2

 

What does the Necessary and Proper Clause Say?

Article I, §8, last clause says:

The Congress shall have 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 3 or Officer thereof.” [boldface mine]

The Federalist Papers confirm the plain language of the Constitution: §8 delegates to Congress the power to make laws for executing the powers delegated to each branch of the federal government. 4

 

How Does the Necessary and Proper Clause Apply to Article V?

Article V delegates to Congress the power to “call” the convention. The necessary and proper clause delegates to Congress the power to make all laws necessary and proper to carry out its power to “call” the convention.

The April 11, 2014 Report of the Congressional Research Service 5 shows that Congress claims exclusive authority over both methods of amending the Constitution, and that Congress claims the power to organize & set up a convention.

But Natelson – mind, he is their “cutting edge intellectual” – insists that the necessary and proper clause does NOT delegate to Congress power to organize & set up an Article V convention.

Well, well! Let’s look at Natelson’s four arguments:

 

(1) Natelson’s Fanciful Theory of “Customs”

A convention called under Article V of our Constitution is governed by provisions in our Constitution: Article V and Article I, §8, last clause – the “necessary and proper” clause.

But Natelson has long insisted that customs followed at conventions during our “Founding Era” determine how a convention called under Article V will be organized & set up. He says in his paper:

“… An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.”

“Founding Era” customs supersede our Constitution? And where does Article V say a convention called under Article V is an “interstate” convention?

 

(2) Natelson’s Tortured Interpretation of the Necessary and Proper Clause

Natelson says the necessary and proper clause:

“… is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. …” [emphasis mine]

A “rule of interpretation”? As authority for this claim, Natelson cites a book co-authored by his own illustrious self which you can buy for $34.99.

So! While Hamilton and Madison said in The Federalist Papers 4 that the necessary and proper clause was a “grant of power to Congress” to make the laws to execute the powers delegated;

and Madison and Thomas Jefferson said The Federalist Papers were:

“an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning” 6

Natelson says the clause is a “rule of interpretation” instead of a “grant of power”, and his $34.99 book is authoritative instead of The Federalist Papers.

 

(3) Natelson’s Misrepresentations of Supreme Court Cases 7

Natelson next asserts “the Necessary and Proper Clause does not extend to the amendment process” because when Congress acts on Article V, it is not a Department or Branch of the federal government. Instead, it is an “ad hoc assembly”.

Congress is sometimes not a branch of the federal government? It is sometimes an ad hoc assembly? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that!

But Natelson says he “knows” this from the “Founding Era record”, from subsequent history, and from decisions of the U.S. Supreme Court, such as U.S. v. Sprague (1931).

Of course, Natelson doesn’t show where the “Founding Era record” says this; he doesn’t show why assemblies which met during our “Founding Era” are relevant to a convention called under Article V; he doesn’t show where “subsequent history” says this; and he doesn’t tell the truth about the holding in U.S. v. Sprague.

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

U.S. v. Sprague has nothing to do with what Natelson claims it says!

Yet, Natelson goes on to say he “knows” that Congress can’t pass laws structuring the Convention because a “long list of 20th century cases” holds that “ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).”

Congress can’t pass laws organizing a convention under Article V? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that! And the Supreme Court case Natelson cited doesn’t say it either!

Of course, Natelson doesn’t provide this “long list of 20th century cases”; and the one case he did cite, Leser v. Garnett, has nothing to do with Congress’ law making powers.

The issue in Leser v. Garnett was whether States – whose State Constitutions restricted voting to men – could ratify an Amendment to the federal Constitution which allowed women to vote. The Supreme Court held that when State Legislatures ratify proposed amendments to the federal Constitution, they are performing a federal function derived from the federal Constitution and it transcends any limitations imposed by State Constitutions. So! Provisions in State Constitutions restricting voting to men did not prevent State Legislatures from ratifying an amendment to the federal Constitution which would have supremacy over a contrary provision in the State Constitution.

 

(4) Natelson’s Fallacious Circular Argument Begs The Question (Petitio Principii) 8

Now let’s look at Natelson’s crimes against the Laws of Logic.

The fallacy of begging the question is committed when one assumes as true the conclusion he seeks to prove. An argument is circular when one seeks to prove the premise from the conclusion.

Natelson was supposed to prove that the necessary and proper clause does not give Congress power to make laws to organize & set up a convention under Article V.

But – as you have seen – he didn’t prove it. So he assumed it to be true. He asserts as true:

“The framers inserted the ‘Convention for proposing Amendments’ in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference.” [emphasis mine]

Since he assumes this to be true – he concludes that the necessary and proper clause can’t give Congress power to make laws to organize & set up a convention under Article V. He says:

“Why would the framers place in the Constitution a method by which Congress could largely control a convention created to bypass Congress?”

Do you see? He concludes that the necessary and proper clause doesn’t give Congress the power to make laws to organize & set up a convention because he has already assumed as true that the convention method was put in so States could get amendments without Congress’ control.

 

Conclusion

Yet, Natelson’s work is the “authority” on which those who seek to force an Article V convention on us rely – a slender reed, to be sure. Take heed, America!

Endnotes:

1 Above all else, REMEMBER THIS: Whether Congress or the States organize & set up a convention is NOT the critical issue. In either case, the delegates – whoever selects them – are vested with that inherent sovereign right to throw off our Constitution and propose a new one (Declaration of Independence, 2nd para). The new one will have its own new mode of ratification.

2 Brilliant men have warned against an Article V convention. It is immoral to dismiss their warnings:

Alexander Hamilton writes 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…”  Federalist No. 85 (9th para)

James Madison writes in his Nov. 2, 1788 letter to Turberville that an Art. V convention would give “the most violent partizans” and “individuals of insidious views” “a dangerous opportunity of sapping the very foundations of the fabric” of our Country. In Federalist No. 49, he shows that the convention method is NOT GOOD to correct breaches of the federal constitution because the People aren’t philosophers – they follow what influential people tell them! And the very legislators who caused the problem would get themselves seats at the convention so they could control the outcome.

Former US Supreme Court Justice Arthur Goldberg reminds us in his Sep. 14, 1986 article in The Miami Herald, that at the convention of 1787, the delegates ignored their instructions from the Continental Congress and instead of proposing amendments to the Articles of Confederation, wrote a new Constitution. He warns that “…any attempt at limiting the agenda [of the convention] would almost certainly be unenforceable.”

Former US Supreme Court Chief Justice Warren Berger warns in his June 1988 letter to Phyllis Schlafly that “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”; and “A new Convention could plunge our Nation into constitutional confusion and confrontation at every turn…”

3 In Federalist No. 48, Madison refers to the 3 branches of the fed gov’t as “departments”.

4 Federalist No. 33 is devoted to the necessary and proper clause. Hamilton writes:

“What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? …. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws…” (3rd para) [caps Hamilton’s; boldface mine]

In Federalist No. 44, under “The SIXTH and last class” of powers, Madison refers to the necessary and proper clause as a grant of power to Congress by which efficacy is given to all the rest of the powers and that “…Without the SUBSTANCE of this power, the whole Constitution would be a dead letter….” [caps Madison’s; boldface mine].

5 HERE is the CRS Report. 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 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.

Furthermore, as all lawyers should know, since the power to call the Convention is delegated to Congress, the supreme Court is unlikely to interfere with Congress’ decisions in this regard because it is a “political question” for Congress alone to decide. See short discussion of “political questions” HERE.

6 See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia (Thomas Jefferson & James Madison were present) where they acknowledged the authoritative status of The Federalist Papers and made them one of the texts books for the Law School.

7 See Robert Brown’s astute discussion of this issue in Mr. Brown’s Face Book Note HERE.

8 Give your Family and Country a wonderful gift: Everybody LEARN LOGIC – it’s fun to play the “spot the fallacy” game! These delightful books are marked 12 years and up, but much younger children can learn the fallacies. My Papa started teaching me before first grade. Look at The Fallacy Detective and The Thinking Toolbox. PH

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January 13, 2015 Posted by | Article V, Article V Convention, Convention of States project, Necessary and Proper clause, Rob Natelson | , , , , , , , , | 19 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

Propaganda And The Conspiracy against Our Constitution

By Publius Huldah

The “Convention of States” (COS) Frequently Asked Questions (FAQs) page contains 989 words – none of them true – except for these which appear in the first paragraph:

“The federal government is spending this country into the ground … It’s time American citizens took a stand and made a legitimate effort to curb the power … of the federal government.”

In my last paper, I showed how our Constitution itemizes what Congress is authorized to spend money on; and that we have a $17 trillion debt because everyone ignores the limits the Constitution places on Congress’ spending powers.

To curb the federal government, We must do things we have neglected for over 100 years: Reclaim our role as “the natural guardians of the Constitution”; 1 learn our Founding Principles & Documents; enforce them with nullification and by rejecting candidates who don’t know them by heart; stop relying on politicians to handle things; 2 reclaim personal responsibility; and get ready for a rocky road ahead.

But the “convention of states” conspirators 3 say the only solution is a convention to “propose amendments” to the Constitution.  They tell lies about nullification – the one remedy our Framers actually advised when the feds usurp powers. They say our Constitution is the problem. They say it contains “loopholes and vague phraseology” which politicians exploit. They suggest the States are victims of federal tyranny; are the ones to “fix” our Constitution; and that the States call and control the convention.  They say it is impossible for the convention to force a new Constitution down our throats.  But I submit that is precisely what they intend to do.

Jordan Sillars, Communications Director for COS, let the cat out of the bag when he said:

“… 3. I think the majority of Americans are too lazy to elect honest politicians. But I think some men and women could be found who are morally and intellectually capable of re-writing the Constitution” [boldface mine].

Contrary to what the conspirators say, there is no way to stop the convention from “running away”: All the delegates need do is come up with a new Constitution. It can provide for any method of ratification they want.

That is what happened in 1787 when the Continental Congress called a convention “for the sole and express purpose of revising the Articles of Confederation”. 4 The delegates ignored their instructions and wrote an entirely new Constitution with its own new method of ratification.

The Conspirators’ Campaign of Propaganda against The People

The conspirators’ claims spit in the Face of Facts and Reality.  So how have they been able to convince people to believe their claims; and go along with their destructive scheme?

They are exploiting the ignorance and desperation of The People by manipulating them with propaganda. Their FAQ’s employ nine well known techniques of propaganda: 5

  • Assume the Major Premise
  • Appeal to Desperation
  • Claim there is a Panacea
  • Repetition for Emphasis
  • The Big Lie
  • Fabricated Legal Principles & Precedent  [“Imaginary Evidence”]
  • Oversimplify
  • Exploit Wishful Thinking
  • The Self-sell.

Assume the Major Premises

Throughout the FAQs, it is assumed that:

  1. The purpose of amendments is to control the federal government;
  2. Our Constitution is defective;
  3. That there is such a thing as a “convention of states” which States call and control;
  4. States will protect us from the federal government; and
  5. The federal government will obey amendments to the Constitution.

These are the five major assumptions upon which their scam is constructed. They don’t prove them – they know many will blindly accept them. Only thoughtful people examine assumptions.

But you can become a “thoughtful person” if you will start examining what you are told.

Their first major premise: The Truth is two (2) delegates at the Federal Convention of 1787 (Mason & Randolph) wanted States to be able to amend the Constitution without involvement of Congress. The conspirators’ crazy and dishonest claim that the purpose of amendments is to control the federal government is based on Mason’s & Randolph’s comments you can find here.  Theirs was the minority view; Art. V provides for Congress’ involvement in both methods of amendment; and Mason & Randolph objected so much to our Constitution they refused to sign it.

Our Framers at the Federal Convention of 1787 understood that the purpose of amendments is to remedy defects in the Constitution [slavery]; and that the novelty and difficulty of what they were doing would require periodic revision [the 11th, 12th, & 27th amendments].  Hamilton said in Federalist No. 85 (13th para) that useful amendments would address the “organization of the government, not … the mass of its powers”.  Madison said in Federalist No. 43 (at 8.) that “useful alterations will be suggested by experience.”

People are deceived by the conspirators’ first premise because they don’t understand that our Constitution created a federal government of strictly limited and defined – enumerated – powers. Everything the feds have authority to do is itemized in our Constitution.  Does our Constitution delegate to the feds power to ban incandescent light bulbs, determine portion sizes of school lunches, and force us into obamacare?  No! So what do you do when the feds usurp powers over such objects?  Amend the Constitution?  Really?  How would you amend the Constitution to fix such usurpations?  Make an Amendment saying the feds can’t regulate light bulbs?  And so on for every power they usurp?

It is crazy to say the purpose of amendments is to control the federal government. When the feds usurp powers not delegated, no amendment saying they can’t do what they did will restrain them. They violated the Constitution when they usurped the power in the first place!

Furthermore, the amendments they write don’t restrict the feds:  Michael Farris’ “parental rights amendment” delegates power over children to the federal and state governments, and empowers judges to determine the extent of that power! One of Randy Barnett’s amendments gives the feds lawful power over “harmful emissions” [EPA now exercises usurped powers], and power “to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States” [read that again!]. Mark Levin’s amendments also increase the powers of the feds by legalizing powers they have usurped. His “override” amendments remove the Constitution as the standard of what is lawful and what is not, and substitute majority vote. Yet the conspirators say such amendments would curb the federal government!

But we must not be distracted by proposed amendments. Their amendments are most likely a pretext to get a “convention” so they can carry out their plot to replace our Constitution.

Their second major premise: Our Constitution is the cause of our problems.

Except for some of the existing Amendments Americans already got manipulated into supporting, what is wrong with our Constitution?  For the most part, it is easy to understand. For phrases federal judges have perverted – such as the “interstate commerce”, “general welfare”, & “necessary and proper” clauses, a quick look into The Federalist Papers usually reveals the original intent.  I illustrate that here.

This one page chart illustrates the structure of our federal system and the enumerated powers delegated to the federal government. What needs “fixing”?  We are in our present mess because for 100 years, we elected & re-elected politicians to federal and state office who ignore it.

All our Constitution wants is (1) to be learned & obeyed; and (2) to have repealed some of the existing Amendments. Repeal those the same way we repealed the 18th Amendment. We don’t need a “convention” for that. Instead of sending ignorant phonies to Congress; send people who know the Constitution [make them pass tests before you support them] and commit to repealing the 17th Amendment and other ill-considered Amendments.

Their third major premise: That there is such a thing as a “convention of states”: The FAQs say “Article V, Section 2 of the Constitution” gives state legislatures the power to call a convention; that Federalist No. 85 says Congress has “no control over the delegates”; that “Virginia called the Philadelphia Convention of 1787”; and that “Basic common sense” and “Agency law 101” says “Each state chooses its own delegates”.

Those claims are truly bizarre.

Read Art. V:  There is no “Section 2”.  Article V says Congress calls the convention – not state legislatures.  All state legislatures can do is apply to Congress for Congress to call it.

Federalist No. 85 says Congress must call a convention when two-thirds of the States apply for it. Hamilton does not say Congress has “no control over the delegates”! 6

Virginia did not “call” the Philadelphia Convention of 1787!  The Continental Congress did.  Their Resolution calling the 1787 convention, pursuant to Art. 13 of The Articles of Confederation, is quoted at endnote 4.  And when the Continental Congress called the 1787 convention, they specifically provided that delegates would be appointed by the States. 4

But Art. I, Sec. 8, last clause, of our Constitution delegates to Congress power to make all laws necessary and proper to carry out the powers vested in it by Art. V.  So Congress has the power to organize the convention, appoint the chairman and delegates, etc.  The Mason & Randolph view was rejected. And the clear words of our Constitution cannot be changed by some ignorant person’s subjective conceptions of “common sense” and “Agency law 101”!

Their fourth major premise: That States are victims of federal tyranny and will rein in the federal government given the opportunity at a convention.

But look at what States have done. They have acquiesced in federal usurpations in exchange for federal funds. The States adopted unconstitutional federal education schemes such as “race to the top” and common core for the federal grant money.

DHS is becoming America’s equivalent of the East German STASI and Soviet KGB. With the connivance of State governments, DHS is taking over local & State law enforcement. And read about the fusion centers in every State – the States acquiesced!

John Barnes shows that State governments no longer focus on managing “a relatively self-contained polis”, but on “siphoning as much money as possible from the federal government”; and that “state government is becoming a mere pass-through for federal funds and an apparatus of federal policy.”  Barnes shows us how State governments all over the Country are bloated with bureaucrats whose job is to “maximize federal funding”.

Google “maximize federal funding” – you will see.  No rational person can believe that the politicians in the States – who are the ones who sold us to the feds in the first place – are the ones to rescue us from the feds.  If the States wanted to, they could rein in the feds right now by using the remedy our Framers really did advise: Nullification.

Their fifth major premise: That the federal government will obey amendments.

But think! The feds continually violate the Constitution we have.  They exercise thousands of usurped powers.

The conspirators insist the feds would obey future amendments because the feds haven’t violated recent amendments, such as women’s suffrage.  Well, of course not!  Of the 15 amendments ratified since the 12th in 1804; 10 increased the powers of the feds (13th, 14th, 15th, 16th, 17th, 18th, 19th, 23rd, 24th, 26th); 7 and 4 were “housekeeping” amendments (20th, 22nd, 25th, 27th).

Do you see?

Appeal to Desperation

The gist of this propaganda technique is to argue that we must do something – we can’t do nothing – so let’s do what I propose.  And we better do it “before it is too late”.

Many Americans are in a panic over the rapidity with which Obama – with the connivance of the Republican and Democrat parties and the State governments – is setting up a national totalitarian police state.

But we mustn’t allow the conspirators to exploit our desperation so as to induce us into surrendering our Constitution. All Americans who have fallen for the conspirators’ scam have been manipulated by THIS technique.

We have effective options.  We have failed to gain the knowledge which would enable us to be the Sovereigns we are supposed to be.  We have contented ourselves with blind faith in talk show hosts, politicians, and other charlatans. We are what needs fixing.

Claim there is a Panacea

With this, you claim that what you are offering is a magical cure for all the problems.

The conspirators say all we have to do to fix our problems is have a “convention of states”. They say they will propose amendments to the Constitution, and the federal government will be “fixed”.  They ignore the facts that everyone has ignored the Constitution we have; that it was the States who sold us out in the first place; and that We The People kept reelecting ignorant & glib politicians who violate the Constitution to state & federal office.

There is no such thing as a panacea. We have a long road ahead of us to fix the problems We caused by our own folly, ignorance, and laziness.

Repetition for Emphasis

With this, you drive home a few simple and unproven points by repeating them over and over until the public believes them.

The five major premises listed above are repeated over & over & over & over & over.  People believe them because they have been programed to believe them.   

Orange quotes Adolf Hitler:

“It [propaganda] must repeat those points over and over again until the public believes it. The principles behind propaganda are the same principles of mind control, hypnotic suggestion, and mental programming: distraction and repetition. With propaganda, distraction draws attention away from information that is true and directs attention to information that is false. Repetition of the false information imbeds it in your subconscious mind so that your acceptance of its truth becomes a conditioned response. You accept this information as true without thinking whenever it is presented to you again.”

This is why most of mankind has lived under tyranny.  People will believe anything if they hear it enough.  Folks!  You better start facing Reality and taking charge of what you believe.

The Big Lie

The gist of this is to:

 “…keep repeating the same lie[s] over and over, in spite of all arguments and evidence to the contrary, until people believe it.  Massive repetition is essential.”

It has already been proved by this and other writers that everything the conspirators say about nullification and a “convention” is false. But they keep repeating it.  Why?  Because massive repetition of lies will induce people to believe them.

Fabricated Legal Principles & Precedent [“Imaginary Evidence”]

The FAQs make various assertions about how this “convention of states” would operate, such as:

  • “The applications must request a convention of states for the same subject matter” or “same issue”;
  • “States are free to develop their own selection process for choosing their delegates…  each state has one vote at the convention.”

The FAQs say this reflects “widely accepted” “procedures and rules” Rob Natelson found during his “extensive research”, which were followed in the “interstate conventions” which “were common” during “the Founding Era”.

Folks! If these customs existed and established binding precedent on the Congress we created when we ratified our Constitution, why did James Madison not know about them?  During the Federal Convention of 1787, Madison said, respecting Article V:

September 10, 1787: Mr. Madison remarked on the vagueness of the terms, “call a Convention for the purpose”, as sufficient reason for reconsidering the article.  “How was a Convention to be formed? – by what rule decide? – what the force of its acts?”

September 15, 1787: Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the States, as to call a Convention on the like application.  He saw no objection, however, against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum, &c., which in constitutional regulations ought to be as much as possible avoided.

Do you see?  And don’t forget: Article V says Congress calls the convention; and Art. I, Sec. 8, last clause, delegates to Congress power to make laws needed to execute the powers vested in it by Article V. This constitutional provision supersedes any “customs” to the contrary.

Oversimplify

 The gist of this technique is to:

“Reduce the issue to a few simple sentences that any blithering idiot can understand. Leave out all the complicated facts and confounding factors. Reduce the debate to just a few simple-minded sentences and slogans. Reduce complex multi-faceted issues to simplistic statements that can be expressed in a short sound bite.”

Aren’t the FAQs a few simple concepts any blithering idiot can understand?

It is this and other writers who point out the “complicated facts”.  Are we too stupid to be free?

Exploit Wishful Thinking

With this technique, you tell people what they want to hear, rather than the unpleasant truths.

The conspirators are offering an easy way out which satisfies a deep yearning: to feel good. We don’t have to accept responsibility for our own failures to become a “natural guardian of the Constitution”; we are encouraged to blame shift and see the Constitution as the cause of our problems; and we don’t have to trouble ourselves to actually learn our Founding Principles & Documents.  All we have to do is join the conspirators.  And then, everything will be wonderful.

The Self-sell

This technique gets people to convince themselves of your ideas by asking for their help in promoting your ideas. “They will sell themselves on the idea as they try to sell it to others.”

Orange gives this example of the Self-sell:  In “Cold Turkey”, Dick Van Dyke plays a preacher who wants everyone in his town to quit smoking.  He got the local Neo-Nazis to quit by enlisting them as “smoking-ban enforcers”.

The conspirators want to build a “grassroots operation” of volunteers to sell their scheme to State legislators [the ones who already sold us to the feds for federal funds.] And we have seen these volunteers’ mindless comments on the internet as they regurgitate the talking points in the FAQs – they sell themselves as they try to sell to others. 8

Conclusion

You better wise up now. Study this chart. Flesh it out with your readings of our Declaration of Independence and Constitution.  Have study groups. What Hamilton asked you to be is not difficult.

Endnotes:

1 Our Framers never saw courts as the final authority.  See James Madison Rebukes Nullification Deniers.  Hamilton expected us to be “a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority” (Federalist No. 16, next to last para).

2 Politicians are as ignorant as those who elect them. But we want a savior who will rescue us without any effort on our part. So we look to politicians to save us. They always betray us; and we are presented with still another phony who says what we want to hear, whom we support, and who betrays us. This happens because we don’t know our Constitution, and thus can’t evaluate the politicians.  If WE knew our Constitution, those smooth-talking ignoramuses wouldn’t have a chance of getting elected. You would see right through them.

3 Progressives & phony “conservatives” have worked hand in hand for many years to replace our Constitution. See Richard D. Fry, “Convention of States”: The Wrong Solution to the Wrong Problem.

4 The conspirators tell the brazen lie that the convention “cannot throw out the Constitution because it derives its authority from the Constitution.”  Rubbish!  Pursuant to 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.” [emphasis mine]

The delegates ignored these limitations and wrote a new Constitution with a new method of ratification.  It is impossible to stop this from happening at another convention. And George Washington, James Madison, Ben Franklin, and Alexander Hamilton won’t be there.

The conspirators also say a “Constitutional Convention” is safe because no amendment will be passed which is not ratified by ¾ of the States. This is deceptive because the concern is about a runaway convention & a new Constitution – not amendments. Since a new Constitution can have any method of ratification the delegates want, it can be forced on us.

5 See Propaganda and Debating Techniques by A. Orange. Orange is a “librul”, and on a vendetta against AA.  But he understands how scoundrels use propaganda to deceive the unthinking.  See how Adolf Hitler used these same techniques to manipulate the German People.

6 I addressed this same lie in “Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments!” under the subheading, “What Levin Claims Article V Says”.  Congress’ lack of discretion is limited to the issue of “to call or not to call” a convention once the requisite number of States has applied for it.  After Congress “calls” the convention, Art. I, Sec. 8, last clause kicks in to empower Congress to make all laws necessary to carry out the call.

7 The result of the voting amendments (15th, 19th, 24th, 26th)was to transfer the power of determining voter qualifications from the States (Art. I, Sec. 2, cl.1) to the federal government.

It was necessary to amend the Constitution to remedy the defects which permitted slavery; but the 13th, 14th, and 15th Amendments delegated powers over the States to the federal government.  It would have been better to merely repeal the provisions at Art. I, Sec. 2, cl.3 which provided for a partial counting of slaves; and Art. IV, Sec. 2, cl. 3 which permitted Congress to make laws against fugitive slaves.  And if the States had been wise instead of foolish, they would have banned slavery and extended citizenship & civil rights to freed slaves on their own, and provided the education to help them make the transition from slave to citizen.  Stupidity and wickedness are not cheap, Folks.  And Amendments are a very tricky business.

8 There is nothing wrong with asking others to help promote ideas – when the ideas are True and Good.  But when the ideas are destructive and false, the self-sell is immoral manipulation. PH

January 28, 2014

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January 28, 2014 Posted by | Amendments to the Constitution, Article V, Article V Convention, constitutional convention, Convention of States project, Federal Convention of 1787, Jordan Sillars, Michael Farris, Necessary and Proper clause, re-writing the Constitution | , , , , , , , , , , , , , , , , | 29 Comments

   

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