Editor's Note: Publius Huldah has always been very specific when she writes her articles to deal with the Constitution and constitutional issues. At times, we have had those who advocate for an Article V Constitutional Convention to propose Amendments, which they used to refer to as a con-con but have changed the terminology to Convention of States, ask if they might be able to write a response to her work. We have allowed them to do so. First, Michael Farris of HSLDA did and then Nick Dranias of The Goldwater Institute did. We posted their responses in full. We were approached by Gary Porter, the Executive Director of Constitution Leadership Initiative to write a response to her latest article on the "simulated convention" conducted by the Convention of States. He was assisted in this writing by COS Tidewater Legislative Liaison, David Dietrich.
We agreed to do so.
We have also informed PH that this will be posted today and she is in the process of responding to it at this time. Judge for yourself who is telling you the truth about those who are violating the Constitution and if you actually think more words will make them obey or whether more words will, in some cases, make things worse or legalize what is already illegal under our Constitution.
Joanna Martin, aka “Publius Huldah,” has a selective view of history. Once again, in her article, “COS Project’s ‘Simulated Convention’ Dog and Pony Show and What They Did There,” she attempts to use it to scare us with the “horrors” of Article V.
Martin writes: “…for the past 100 years, the federal and state governments and the American People have ignored our Constitution.”
In the face of such a broadly cast net, we agree, certainly as regards the American people, but to respond directly: so what? What does Ms. Martin intend to do about this? What is the constitutional remedy she offers? Moreover, how can We the People return our nation to “Original Intent”?[i] While we don’t doubt Martin’s patriotism, she has a jaundiced view of what is a clearly constitutional method of repairing a damaged document. The Declaration is very clear on this subject. So is Article V. Instead of helping to restore the Constitution’s “chains,” she is “chained” to the status quo.
Martin Writes: “…Delegates would have the right, as recognized in the 2nd paragraph of our Declaration of Independence, to throw off the Constitution we have and write a new Constitution which creates a new government.”
Really? Let’s review: “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” As Jefferson implies, the Right of the People is in effect at ALL times. But, this broader right has nothing to do with a Convention for proposing Amendments. Convention delegates are most certainly NOT delegated the right to do anything they want, much less “write a new Constitution, which creates a new government.” A plain reading of the Article V text makes this clear to any fourth grader. Once again, only “the People” may delegate the right to transform their government. Since an Article V Convention for proposing Amendments has only one delegated goal – to propose Amendments, any fear of something else emanating is misguided.
To be sure, anyone, any group, even Congress could draft a new Constitution and post it on the internet for all Americans to consider. Mr. Rexford G. Tugwell, a fellow at the Left-leaning “Center for the Study of Democratic Institutions,”[ii] drafted a looney “Constitution for the New-States of America” in 1974, well before the internet was even a gleam in Al Gore’s eye. Mr. Tugwell died five years later and someone eventually posted his “masterpiece” on the internet. Read the document. Why Martin and Company believe Article V convention delegates, lacking any authority to do so, are going to feel empowered to take this or any other “constitution” and put it into effect “on behalf of the American people,” is simply beyond comprehension. Somehow she has convinced herself (if she is to be believed) that this is going to happen. And the American people are apparently going to sit back and let this happen? Astounding! If you believe that, we have a bridge we’d like you to look at. An Article V Convention attempting to impose a new Constitution on America is a flight of fantasy!
Martin writes: “…on February 21, 1787, the Continental Congress called a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation.”
Martin’s statement is incorrect on two counts.
The 1787 “Grand Convention” was actually called for on 14 September 1786 by the delegates of the Annapolis Convention. Their call read:
“Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavours to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.”[iii]
The states receiving this call believed it to be both authentic and authoritative. By 21 February 1787, when Congress got around to endorsing the call, seven of the twelve states that eventually responded had already selected and commissioned the delegates they would send to Philadelphia. The 55 delegates who attended each carried a copy of their commission. Their commissions served two purposes: they authenticated the delegates as representatives of their state and they set the boundaries of the delegates’ authority. Virginia’s commission, the first one passed and one which served as the model for others, authorized their delegates to “assemble in Convention at Philadelphia as … recommended and … join with [the other delegates] in devising and discussing all such Alterations and farther Provisions as may be necessary to render the Federal Constitution adequate to the Exigencies of the Union and in reporting such an Act for that purpose to the United States in Congress.” It should be obvious where Virginia got the wording for its commission.[iv]
On 21 February 1787, when Congress finally passed and forwarded their non-binding endorsement of the convention idea, it read in part: “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...” This is where those opposed to a convention normally stop quoting, and you will see why; the resolution goes on to say: ”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, and the preservation of the Union.” (emphasis added)
Hmmm, here we see the same sort of wording included in the Annapolis Convention’s initial call and Virginia’s (and those of many other states).
There was only one real requirement to be met in the initial call and the seven which immediately followed it: render the federal Constitution adequate to the (needs) of Government. What do those words mean? “Render” (i.e., change) the “federal Constitution,”[v] to make it “adequate to the (needs) of the Union” (or “the needs of government and the preservation of the Union”). In sum: change the Articles in such a way that the Union is preserved. That’s your charter guys, now go to it! Yes, Congress had revision in mind, but one that would also meet the second goal: preserve the Union.
Martin writes: “the Delegates wrote a new Constitution, with an easier mode of ratification, which created a new government.” (emphasis added)
Quite wrong. The Constitution drafted in Philadelphia created absolutely nothing, nada, zip. To put it in Madison’s words, their proposal was “merely advisory and recommendatory.” The Constitution drafted by the 1787 Convention was of “no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.”[vi]
Abiding their commissions, the delegates forwarded “such an Act for that purpose to the United States in Congress.” As Congress had requested, the draft would have to first be “agreed to in Congress, and confirmed by the States” before it “created” anything. But it is important to Martin’s narrative that you believe what happened in Philadelphia created a new government. Why? She wants you to believe it could happen again.
But there is a not too subtle difference between 1787 and today: the Constitution itself. The 1787 Convention was conducted in the environment created by the commissions of the twelve states which attended, without the constraints imposed by today’s Article V. The shortfalls of Articles of Confederation guided them.
Any convention today, now that the Constitution is in force, must comply with the constraints of Article V as well as with the commissions of the attending delegates. Article V succinctly calls this event “a convention for proposing amendments.” How can it legitimately/constitutionally be anything else? This is not, and can never be, a “convention for drafting a new Constitution,” which is precisely what Martin and Company would like you to believe it will be. Without a shred of constitutional evidence, opponents insist on calling a modern Article V convention a “constitutional convention” (aka: “con-con,” as though you’ve been “conned” twice, get it?). Relying on a contorted interpretation of Black’s Law Dictionary (which, of course, is no more legally binding than Webster’s 1828) that a “constitutional convention” is one which is formed for (among other purposes) “amending a constitution,” opponents hope to convince you that because an Article V convention has something to do with “amendments” it is therefore formed to “amend” the Constitution. “Amendments” is a plural noun, “amending” a verb. “Amending” and “proposing” are quite different verbs. An Article V convention has no authority to amend the U.S. Constitution, it has only the authority, clearly specified, to “propos(e) amendments.” This is no “constitutional convention.” Therefore, you have not been “conned,” except, perhaps, by those who believe saving the Republic is not worth actually using the Constitution’s own provisions to do so.
Madison’s “make nice” remarks in Federalist 40 notwithstanding, the 1787 delegates produced a document that would, if and once ratified, “render the federal Constitution adequate to preserve the Union,” nothing less than a new bottom-up plan of government would have done that; the Articles were beyond revision – they did not support an effective union.
Under the Articles, there was a single house of Congress, it didn’t reflect the grossly different populations and proportionate political power of the states, a second chamber had to be created. There was no Judiciary, one had to be created; there was no true Executive, one had to be created. The states had too much power; they had to be placed subservient to the “Supreme Law of the Land.” Congress had no authority over interstate commerce; this authority had to be created, and on and on. No “tweaking” of the Articles would have produced these changes. Bottom line: If the delegates had attempted a mere revision, as Madison could well see, little would have remained of the original Articles —and little did.[vii]
Martin writes: “James Madison invoked the Delegates’ right to abolish our form of government, as recognized in the Declaration of Independence, to justify ignoring their instructions and drafting a new Constitution which created a new government.”
Not quite. While Madison cited the right of the people to abolish their government in Federalist 40, he didn’t invoke that right:[viii] The American people did, acting between 4 December 1787 (the start of Delaware’s ratifying convention) and 29 May 1790 (the end of Rhode Island’s). More than 1600 duly-sworn representatives of “We the People” ratified the Constitution that had been proposed in Philadelphia. If Madison had “invoked the right,” as Martin claims, ratification would have been unnecessary.
We should also point out that no state was forced to ratify and join the new union; as we all know, it was totally voluntary, an act that two states, North Carolina and Rhode Island, refused to make until a Bill of Rights had been added. Madison “invoked the Delegates’ right to abolish our form of government” to the same extent that Mr. Tugwell did in 1974.
Martin writes: “Ever since the federal convention of 1787, it has been known that any convention called to address our Constitution under Article V provides the opportunity to impose a new Constitution. 5”
Known? Known by whom? Ms. Martin appears to hope that by throwing a footnote on this outlandish statement that you’ll accept it as somehow substantiated. But her Footnote Five in no way proves this preposterous claim. She states (in the footnote): “enemies of our Constitution knew from day one that they could get rid of our Constitution at an Art. V convention.”
The “enemies of our Constitution” in this case comprise one man: Patrick Henry. Henry fought with all his oratorical might to persuade Virginia not to ratify the Constitution, not knowing that New Hampshire had already ratified and put the document into motion just six days before Virginia’s convention adjourned. Seeing the final vote go against him, Henry lamented afterwards to a group of disgruntled Anti-Federalists that he had “done his duty…in the proper place, -- and with all the powers he possessed. The question had been fully discussed and settled, and, that as true and faithful republicans, they had all better to home!”[ix]
A few months later Henry apparently had second thoughts; on October 27, 1788, he introduced a rather “impassioned” motion calling for Virginia to apply for an Article V Convention. As attributed to delegate Richard Bland Lee, the Federalists hoped to modify Henry’s resolution “so as to divest it of it’s inflammatory dress – or to postpone its operation to such a distant period as to give the people of America a fair experiment of the government.”[x] Postpone they did; the resolution was not approved by both chambers and sent to Virginia’s delegation in Congress until 15 February 1789 and not presented on the floor of Congress until May 5th, the day after Madison announced his intent to introduce amendments creating a bill of rights later that month. In the meantime, Madison fretted in private letters that Henry’s resolution, or perhaps one by New York calling for a new general Convention might actually be taken seriously by the new Congress. So, what are we to make of this?
Patrick Henry had two hopes 1) that he could force the call of a second convention, and that 2) he would be appointed to such a convention. Neither hope was realized. Henry may indeed have believed that once he arrived at such a convention he could employ his rhetoric to convince the other delegates to scrap the new Constitution and start over, designing something that aligned better with his view of the “correct” balance of power. But if this second convention followed in the footsteps of the first, and there is no reason to believe it would not have, the best Henry could hope for would be a new draft Constitution, which would then require a new round of ratification, needlessly delaying the start of the new government.
Now, given “the rest of the story,” let’s bring Martin’s stratospheric claim back down to earth. Instead of: “enemies of our Constitution knew from day one that they could get rid of our Constitution at an Art. V convention,” we believe it more honest to say: “One enemy of our Constitution, Patrick Henry, thought he might be able to cause “the destruction of the whole system” (as Madison put it) in an Article V Convention.” There are people today, no doubt, like Mr. Henry, hoping to use an Article V convention to impose a new Constitution. However, neither the words nor the spirit of Article V are in their favor.
Martin writes: “That’s why the enemies of our Constitution periodically push for an Article V convention.”
The Constitution today has many enemies, to be sure; but lumping proponents of an Article V convention together with them is reckless, even libelous. We could just as easily retort: “Anti-Constitutionalists continually fight against the only effective avenue we have to correct the damage of the Supreme Court.” Besides, supporters of the Convention of States Project do not “periodically push” for a convention, they are engaged in a full-court press, they have an actual plan and they are carrying it out. The opponents of Article V have no plan for restoring the Framers’ Constitution; they have great hopes to be sure, but no plan.
Martin writes: “… constitutionalists are warning Americans that if Congress calls an Article V convention, a new constitution with a new mode of ratification is likely to be imposed – probably a new constitution which moves us into the North American Union.”
For every “constitutionalist” warning of the “danger” of an Article V Convention there is a constitutionalist pointing out that “business as usual” is not working to restore original constitutional order in our country.
Let’s be clear, the only Article V convention concept we support is one where 34 states have followed the protocol of the Convention of States Project (COSP), have included in their call the verbiage COSP recommends, and who have carefully commissioned their delegates with authority appropriate to the call. That is the only plan with sufficient safeguards in place to keep the convention limited to its Constitutional charter, and thus the only plan worthy of support. Over these many years, we have yet to hear anyone, including Ms. Martin, explain how, in detail, a new Constitution could be imposed on America by such a convention.
Martin writes: “The reason we have a huge debt is because for 100 years, Congress has been spending on objects which aren’t on the list of delegated powers.”
Not quite. For at least 80 of Martin’s “100 years,” Congress has not been constrained to spending only on “delegated powers,” thanks to the U.S. Supreme Court. How did that happen? In 1936[xi] and 1937,[xii] the Supreme Court re-interpreted the General Welfare Clause so as to allow Congress to spend money on anything that benefits the “general welfare,” as Congress is allowed to define that term. No longer is Congress limited to spending on enumerated/delegated objects alone. Martin knows this, of course, but it doesn’t fit her narrative, so this fact is conveniently ignored. Madison warned of this very possibility in a 1792 letter (as well as on the floor of Congress). Madison wrote: “…if Congress can do whatever in their discretion can be done by money, [as long as it] will promote the “general welfare,” the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.”[xiii] In the same letter, Madison goes on to insist that “general welfare” was merely a “caption to the specified powers,” i.e., if spending took place on “Post Offices and post Roads” (a delegated power),[xiv] it had to be done in such a manner that it benefited the “general welfare” not the welfare of some individual or group. The Butler court thought differently. “General welfare” would no longer be a limitation on spending. It was to be a source of spending power in its own right.
That’s exactly what we have today, thanks to these two decisions by the “New Deal” Supreme Court. This is not the only reason for our immense national debt, of course. Given the authority to spend on anything, Congress could still have balanced their budget; but as we know, they didn’t and they don’t – they have no requirement to do so.
In sum: we have immense national debt today because: (1) Congress is not required to balance their budget, (2) Congress is given unlimited authority to borrow money on the credit of the United States, and (3) Congress enjoys no constraints on how that money is spent. If Ms. Martin wishes to once again have a government where Congress can only spend on “delegated powers” she must deal with the Court’s interpretation of the General Welfare Clause. Since the two decisions cited effectively amended the Constitution, the only effective way to reverse their effect is through subsequent amendment.[xv]
Martin provides us extensive critiques of the simulated convention’s proposed amendments. Her critiques are both unpersuasive and moot. The simulated Article V Convention conducted last year by Citizens for Self-Governance operated under time constraints unlike those of a real convention, it was an expensive undertaking by a non-profit advocacy group and thus had to be “short and sweet;” it was an attempt to demonstrate the process, not the result of a real Article V Convention (as well as to test proposed rules for a convention). In a real convention, we can expect proposed amendments to be subjected to significantly more deliberation and critique; it will have to be a bi-partisan affair, after all; Republicans do not control 34 state legislatures. It is even possible nothing will result from the first such attempt at a convention; in the present hyper-partisan environment, distrust abounds. And let us not forget that any proposed amendment resulting from a convention must still be ratified.
Martin writes: “The ‘simulated convention’ was a dog and pony show put on to produce amendments to con us into believing that a real Article V convention called by Congress won’t ‘run away’.”
The simulated convention was conducted to show the American public the process we can expect from a real convention. The delegates agreed upon rules at the start of the convention and they followed those rules. Certainly, no one attended the simulated convention with the hidden goal of “hijacking” the convention for purposes other than proposing amendments, but neither would the rules have permitted such to occur, nor would the other delegates have sat idly by and allowed it to happen. Would you?
Martin writes: “amendments can’t take away powers the Constitution didn’t delegate in the first place”
No, but amendments can effectively neuter Court decisions (see 11th Amendment and Chisholm v Georgia, for starters). An amendment can also repeal the 17th Amendment (see 21st Amendment) and restore the states’ power in the Senate, a change we believe Martin and Company supports. Sadly, this will never happen if Congress is left to propose it. An amendment could repeal the 16th Amendment and force the government to fund itself the way the Framers intended: “Taxes (on other than personal income), Duties, Imposts and Excises.” Once again, how likely is Congress to propose this? Amendments can restore the original understanding of terms such as “general welfare” (to distinguish it from “specific welfare” and restore its status as a caption, not a grant of power), they can restore “commerce” (to distinguish it from agriculture, manufacturing, assembly, etc.) and other terms whose inherent ambiguity allowed the Courts to “delegate” new power to the federal government, power the Framers never intended. Martin and Company may rail (as many of us have) that a court decision does not amend the Constitution and that opinions like U.S. v. Butler, Helvering v. Davis and Wickard v. Filburn should not have the effect they do; but the American people have “moved on” from such an “antiquated” interpretation of the Constitution. They have agreed, “lock, stock and barrel,” with Chief Justice Evan Hughes, who famously insisted that “We are under a Constitution, but the Constitution is what the judges say it is.”[xvi] We don’t agree with Justice Hughes, but the vast majority of Americans do. They have accepted the notion that a Supreme Court opinion effectively amends the Constitution. As a result, the Constitution Annotated is the operational Constitution today.
In Endnote 1, Martin writes: “If your spouse commits adultery, will your marriage be saved if you amend the vows to permit adultery? When People violate the Ten Commandments, will morality be restored if we amend the Ten Commandments to permit sin?”
Of course, the Ten Commandment should not be changed simply because they are violated. But our “Ten Commandments of American Government,” i.e., the U.S. Constitution, have already been amended by the Supreme Court to allow the confiscation of our wealth, property and liberty. The question we face is: how long will we permit this “adultery” to continue?
Ms. Martin’s refusal to accept this intrinsically constitutional remedy to restore the limits of the original Constitution demonstrates an alarming acceptance of the status quo.
With Martin’s concluding paragraph as a guide: Statecraft is indeed “serious business” which requires “systematic study” to master, but the Constitution was written to be understood by us all. Any citizen searching for the reasons today’s federal government enjoys near plenary power over our lives will soon discover why this is so. That we are even having a simulated convention demonstrates vividly that we live in a time where Jefferson’s “chains of the Constitution,” chains intended to “bind men down from mischief,” have been rendered into rubber bands by a Supreme Court that has often been intent on expanding the powers of the federal government, and has done so quite effectively. “People of good intent” can be equally misled by persons unwilling to trust the wisdom of the Framers of the Constitution, men who provided us with a method of repairing damage inflicted upon this magnificent document, a method that bypasses the other unfortunate circumstance foreseen by the Framers: an obstinate Congress. It is time for an Article V Convention.
[i] Barton, David. Original Intent, Wallbuilder Press, 1996.
[iv] Both the Annapolis and Virginia documents were strongly influenced by James Madison, the Virginia commission was probably drafted by him.
[v] Most scholars accept that “federal Constitution” refers to the Articles of Confederation, but this is not the only possible interpretation. According to Jefferson, the American colonies had a Constitution in 1776, one that was being violated by King and Parliament. Jefferson complained the colonists were being subjected to “a jurisdiction foreign to our Constitution.” The discussion of this intriguing idea will await another day.
[vi] James Madison, Federalist 40.
[vii] But a few key clauses were retained; vestiges of the original Articles, so it can be argued that the new Constitution was indeed a revision, however extensive.
[viii] “to put into effect or operation.” Merriam-Webster Online Dictionary. Accessed at https://www.merriam-webster.com/dictionary/invoke.
[x] John P. Kaminski and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution, 10:1762, (Madison: State Historical Society of Wisconsin. 1993)
[xi] United States v. Butler, 297 U.S. 1 (1936).
[xii] Helvering v. Davis, 301 U.S. 619 (1937).
[xiii] James Madison to Edmund Pendleton, January 21, 1792.
[xiv] Article 1, Section 8 Clause 7.
[xv] Yes, the Supreme Court could reverse their 1936/37decisions should they someday receive and take a case which allows their earlier opinions to be revisited. This is quite unlikely to happen.
[xvi] http://c250.columbia.edu/c250_celebrates/remarkable_columbians/charles_hughes.html.Don't forget to Like Freedom Outpost on Facebook, Google Plus, & Twitter. You can also get Freedom Outpost delivered to your Amazon Kindle device here.