An Article V Constitutional Convention – Fatal to Liberty?
Texas just became the 11th state to join in calling for a Constitutional convention, pursuant to Article V of the U.S. Constitution. Proponents of the call argue that the scope of its activities can be limited to adopting a specific set of amendments, or amendments dealing exclusively with certain subject matters, specified in the call. Their opponents (myself included) object that their argument flies in the face of the precedent set by the original Constitutional convention. That Convention was initiated by the Continental Congress, with a mandate to propose amendments to the “Articles of Confederation and Perpetual Union”.
Under those articles, the States retained their individual sovereignty practically unimpaired. Yet almost immediately the delegates to the Constitutional Convention decided to replace the Articles, in their entirety, with a new Constitution, one predicated on delegating certain delimited sovereign powers wholly to the national government (treaty making and in general the conduct of international diplomacy, for example); leaving others wholly to the states (the power, for example, to make law respecting an establishment of religion); and still others concurrently to the states and the national government, within the limits of their different jurisdictions.
The state delegations at the Convention ended up accepting the view that, since ratification involved a direct appeal to the sovereignty of the people, i.e., the highest authority, no act of a subordinate authority could interfere with their duty to recommend whatever result best served the common good. George Washington reflected this sense of the exigent crisis of government under the Articles of Confederation when he wrote (in a letter to David Humphreys, December 26, 1786):
The question then is, can it be propt [sic]—or shall it be annihilated? If the former, the proposed Convention is an object of the first magnitude, and should be supported by all the friends of the present Constitution. In the other case, if on a full and dispassionate revision thereof, the continuances shall be adjudged impracticable, or unwise, would it not be better for such a meeting to suggest some other to avoid, if possible, civil discord, or other impending evils.
Washington saw replacing the Articles of Confederation as a prudential imperative. His thinking reflected that of the many delegates who chose him to head the Convention Why does it make sense to assume that a new convention will not be subject to the same sense of necessity, and therefore claim the same prerogative as the original one? I expect that this would be one (and perhaps the only) area in which a convention now would resemble the first.
Given the provisions of Article V, a cogent argument can be made that this will be so. The Article V Convention will be called on the authority of 2/3 of the State legislatures. But its results must be ratified by the legislatures or ratifying conventions of ¾ of the States. Moreover, none of the States can be excluded from participation, so all are likely to send a delegation.
But with all the States participating, the need to reach beyond the 2/3 majority that called the convention means that its results will have to take account of demands from States that did not approve the mandate limiting its purview. To gain support from at least some of them, other Convention delegates will undoubtedly have to consider and accede to demands that go beyond the mandate, or else the Convention’s product will fall short of the necessary ¾ majority.
Thus, the language of Article V practically guarantees that those in attendance at the Convention will have to set aside the mandate restricting their deliberations in order to produce a ratifiable result. Unlike the attendees at the original Constitutional Convention, those at the Article V Convention will not have to rely on an argument to this effect. It will be a pragmatic necessity, forced upon them by the Article’s provisions.
This logical necessity plainly discredits the notion that an Article V Convention, called on application by 2/3 of the State legislatures, could impose some limited mandate on the Convention. In the give and take of debate and negotiation, those in attendance would have to consider exceeding the mandate, in order to win support from enough State delegations to achieve the requisite ratifying majority.
Thoughtful conservatives presently taken in by the Convention of the States movement should pause to ponder what sort of trade-offs are likely to result from this practical imperative. At present, the majority of America’s legal professionals are legal positivists who reject the notion that human law must ultimately answer to God’s standard of right. Wouldn’t articles of the Constitution they presently despise, or simply ignore, on that account, inevitably end up on the chopping block at any convention in which they participated?
For example, the 9th Amendment refers to rights retained by the people which it is forbidden to deny or disparage. Logically, those rights include the God-endowed unalienable rights upheld in the Declaration of Independence, for which patriots gave their lives in the Revolutionary and Civil Wars. But the legal positivists reject the notion that, like the Constitution, the Declaration forms part of the organic (i.e., identity defining) law of the United States.
Once invoked, the 9th Amendment exposes and defeats the notion that civil rights fabricated by human judges and/or legislative majorities trump unalienable rights endowed by our Creator. The rationale for enforcing the homosexualist agenda by force of law, (persecuting Christians for manifesting their rejection of homosexual marriage, for example) is thus decisively refuted once the 9th Amendment’s language is taken into account. Thus far, however, it has been successfully neglected by most contemporary legal practitioners.
Given that fact, would conservative Convention delegates preoccupied with money issues comprehend the 9th Amendment’s vital importance? Would they have any qualms about trading it away to get support for an Amendment dealing with their budget concerns? The 2nd Amendment might not be thus easily cast aside, in its entirety. But efforts would certainly be made to amend its language in order to clarify limits (already enshrined in legal precedent,) on the individual, private rights it presently mandates and protects. The plainly stated right to bear arms will certainly be threatened, and perhaps eliminated altogether.
Conservatives authentically committed to the preservation and defense of decent liberty need to think this through. In the present deteriorating state of our nation’s understanding and respect for the moral premises of constitutional self-government, the proposal for an Article V Convention is dangerous to liberty. Such a convention would be a pitfall, and not only for such unalienable rights as I have mentioned. Its result would serve the agenda of those who mean to cut our nation off from its founding premises, which undeniably acknowledge God’s authority as the substantiating source of right and justice for all humanity.
Though many of the people who support an Article V Convention have good intentions, they will no more be able to control its proceedings than they are able to prevent the continual betrayal of their hopes by the GOP majorities they elect to Congress. But instead of bad laws, the result will be a disfigured Constitution, fatally severed from the wisdom and prudence by which God’s Providence guided, and for a time preserved, the foundation on which our nation rose, prospered, and ultimately strove to preserve His benevolent intention for people of good will.
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