COS: The Constitution Undone

There are numerous problems with our country and how the government runs today which need fixing. At the federal level, in particular, many problems are most easily recognized. What to do to fix D.C. are various and wide ranging. Here, I wish to address the idea of an Article V convention of the state’s idea that seems to continue to gain steam and continues to rear its ugly head in the several state legislatures, especially when new sessions begin and more especially when new crops of unaware and unprepared legislators take office.

Convention of the state’s proponents make several points as to why a convention is needed. Many are well-meaning. Some are even thought out somewhat. Nearly all address the symptoms without addressing the actual underlying causes and seek to place a simple bandage on a bleeding jugular.

First, however, we must address the history of conventions, with the focus on the Federal Convention of 1787, as it is the only convention to succeed in a resulting constitution at the federal level. Next, is a discussion of some of the amendment ideas of Convention of States supporters that they would like to see at a convention of the states.

The history leading up to the Convention was a long history. One such convention was held in Albany in 1754 with Benjamin Franklin and Thomas Hutchinson as framers of what came to be the Albany Plan of 1754, which was rejected. Still, it was an important plan leading up to America’s first constitution, the Articles of Confederation.

The Articles of Confederation was successfully adopted in 1781, after four years from when the Continental Congress first proposed it and sent it to the states for ratification. It was not done by convention, however. Many, particularly James Madison, tried numerous times to amend the Articles of Confederation after recognizing the many flaws in the Articles. The final attempt before the Convention of 1787 was the convention at Annapolis, which failed. What they did succeed in doing is to recommend the Convention in Philadelphia in May of 1787. The purpose, as stated in Annapolis, was as follows.

To devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate…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.[i]

The requirement to include Congress and every state is in harmony with the requirement of the Articles under Article XIII.

The Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States and be afterwards confirmed by the legislatures of every State.[ii]

Two points can be seen as found in the Articles. First, no alteration is permitted except agreed to by Congress. Second, the alteration must be confirmed by every state. A majority or even super majority is insufficient. If one state does not confirm the alteration, the Articles remain the same, unamended.

On February 21, 1787, Congress finally granted approval to begin the process of amending the Articles. The wording or the permission granted is important to note. The resolution provided that the States should send delegates to a convention “for the sole and express purpose of revising the Articles of Confederation, and reporting to the Congress and the several legislatures, such alterations and provisions therein…when agreed to in Congress and confirmed by the states.“[iii]

According to the Articles, Congress must approve the amendments and the “legislatures of every State” also must approve without exception. Also, notice that the “sole and express purpose” is to revise the Articles. This means no power was granted to do anything more than to revise the Articles, the sole purpose being to revise.

Furthermore, each State provided their individual delegations with specific orders or rules they were to follow at the Philadelphia Convention. Except for Rhode Island, which failed to send a delegation, every State set the rules for only the revision or amending of the Articles. In no way did any provide for the destruction or elimination of the Articles, as shall be demonstrated.

Virginia was one of the first to resolve to send a delegation to Philadelphia. The resolution provided the delegates and authorized them.

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 as when agreed to by them and duly confirmed by the several States will effectually provide for the same.[iv]

The wording, though slightly different, mirrors the resolution of Congress. The delegates were only to alter the Articles. Also note that the several states must confirm the alterations. However, Madison, the Father of the Constitution, whose Virginia plan provided the guidance needed for the convention, of which nearly all provisions are included in the 1787 Constitution, began the movement to scrap the Articles from the beginning, once a quorum convened in May.

New Jersey’s delegation was to take “into Consideration the state of the Union, as to trade and other important objects, and of devising such other Provisions as shall appear to be necessary to render the Constitution of the Federal Government adequate to the exigencies thereof.”[v] New Jersey’s focus was on trade and other important objects. But again, no authority to create a new constitution.

Pennsylvania’s delegates were to join the others in

devising, deliberating on, and discussing, all such alterations and further Provisions, as may be necessary to render the federal Constitution fully adequate to the exigencies of the Union, and in reporting such Act or Acts for that purpose to the United States in Congress Assembled, as when agreed to by them and duly confirmed by the several States.[vi]

Note again, the delegates of Pennsylvania were to amend for approval by Congress and the States, as provided in the Articles, Article XIII.

North Carolina proposed an act that vested their delegates with all that they needed “for the purpose of revising the Federal Constitution” and to confer with the deputies of the other States “for similar purposes and with them to discuss and decide upon the most effectual means to remove the defects of our Federal Union.”[vii] Again, the delegates were only to revise the Articles and confer with those of “similar purposes.”

Following a similar pattern with other States, New Hampshire delegates were empowered as follows.

To join with them in devising & discussing all such alterations & further provisions as to render the federal Constitution adequate to the Exigencies of the Union & in reporting such an Act to the United States in Congress, as when agreed to by them, & duly confirmed by the several States.[viii]

The pattern continues to demonstrate authority to amend with approval as found in the Articles— reporting to Congress for their approval followed by confirmation by every state.

Delaware’s delegates, like the other States’ delegates previously mentioned, were empowered to act using similar language as those mentioned thus far. However, Delaware provided one exception that their delegates were prohibited from doing. They were prohibited from making or allowing to be made “such Alterations or further Provisions, or any of them, do not extend to that part of the Fifth Article of the Confederation of the said States.”[ix] This Article provided for each State having only one vote. Article I of the current US Constitution makes it clear that this did not happen at the Convention, with the splitting of Congress into two houses, one with representation by population and the other with equal votes of two members per State, a violation of the sole and express authority granted by the state of Delaware.

Georgia’s delegation received similar orders that were nearly word for word the same as Virginia’s. The only difference is that the word “Assembled” is added after “Congress.”[x]

The orders to the delegates from New York were word for word that of the resolution of Congress calling for the Convention for amending the Articles.[xi]

South Carolina empowered their delegation “in devising and discussing all such Alterations, Clauses, Articles and Provisions, as may be thought necessary to render the Federal Constitution entirely adequate.”[xii] They also noted that it must be approved by Congress and confirmed by the several States.

The State of Massachusetts in empowering their delegation quoted the resolution of Congress.[xiii]

Connecticut did not quote the resolution of Congress but made mention that they were empowered “for the purposes mentioned in the said Act of Congress.”[xiv]

Finally, Maryland’s resolution very nearly mirrored Virginia’s to their delegates.[xv]

The point of providing the evidence of the resolutions of the several States is to prove that not one single State authorized their delegations to do anything more than to revise or amend the “Federal Constitution,” the Articles of Confederation. Moreover, to consider the current US Constitution as an amended Articles of Confederation ignores the fact that ratification required unanimous approval by the several state legislatures. Instead, Article VII of the US Constitution changed the requirements of ratification to 9 of 13 (2/3) of the states and by a convention of the states rather than state legislatures.

With only one successful convention as a historical example of how a convention of the states or Constitutional Convention works, it becomes clear how dangerous an Article V convention can become. The 1787 Convention was a runaway convention. In other words, despite the rules and requirements set beforehand by the individual states and Congress, the convention almost immediately ignored the parameters. To put it bluntly, the rule-makers changed the rules, both of the convention and the whole constitution they were living under, who then made new rules. Do we fault them for that? Not a chance. But the precedent is set. And in such a self-centered, entitlement mentality, everyone is a victim age that we live in, the danger of a so-called convention for amending the Constitution with precedent to scrap a previous constitution and create a new one is monumental. The history and precedence alone should be enough to squash any hope of any real success of a convention that would leave our Constitution intact.

Nevertheless, we will discuss some amendments that convention of states supports would like to propose. And only for the sake of argument, we shall assume that the convention would be successful and NOT do anything more than make amendments, leaving the Constitution intact. Furthermore, we would assume that any of the possible amendments would be successfully ratified.

One major problem with the federal government is overspending. With well over $30 TRILLION in debt and yearly deficit spending exacerbating the problem, convention proponents want an amendment for a balanced budget. It is hard to argue with this one. But again, the evidence of several states that have balanced budget requirement only proves that debt is still part of each state’s budget. Idaho is but one example. While it has a “balanced budget” the state includes payments towards debt as part of the budget. Other government entities within the state also have debt but include the costs of debt payment in their budget spending. Thus, the question is “Is it a balanced budget that is the problem or debt?” Debt is bondage. And states continue to enslave citizens with debt, including “balanced budget” states.

Additionally, if the amendment were to succeed, who would enforce it? Nobody is enforcing states’ requirements as of now, nor can they. Furthermore, with a Congress who ignores much of the Constitution anyway, why wouldn’t they ignore yet one more item, especially if there is nobody to enforce it, similar to non-enforcement of state budget requirements? Again, it comes down to enforcement. Who would enforce it?

Even if they properly followed the amendment, why not just tax more to spend all they want? The bandage here is to hopefully force the federal government to be more fiscally responsible. However, they could continue to spend whatever they wanted by taxing more. It would not necessarily solve the spending problem. The bleeding jugular problem is not following the Constitution, keeping themselves limited to only the enumerated powers and eliminating everything else. If followed, it would eliminate 90% of the federal government, if not more. A few examples of departments that that the Constitution provides no enumerating powers for are education, HHS, Energy, commerce, labor, HUD, agriculture and more, with all sub-departments being included underneath those unconstitutional departments.

Term limits is another favorite. Term limits was a major discussion in the 1787 convention, both for Congress, the executive and the Supreme Court. In the end, the Framers chose to limit terms for Congress to 2 years for the House, 6 for the Senate and 4 years for the president with the Supreme Court being able to serve while on good behavior. They left it up to the citizens to stay informed and determine who remains and whose term is up. They trusted the people to make good decisions. But when citizens are ignorant, apathetic, uneducated or what have you, we continue to get a swamp. One can even say that we get what we deserve. What term limits will do is make for a lazier electorate, lazier than now.

But, as Hamilton pointed out in the discussion of term limits on the president in Federalist 72, which can also be applied to Congress, there are several problems with term limits. One “ill effect” would be a reduction in good behavior. Knowing their time is limited, they would be less likely to do their duty. Example: lame-duck Congress. The worst bills are passed as lame-ducks, the 2022 omnibus spending bill passed late December 2022, is just one example.

Another “ill effect” is that the unscrupulous would accelerate their dastardly deeds, knowing their time is limited for their own gain of money, power and prestige. Corruption is magnified. Not to mention they would do all they could to usurp power and authority and try to stay in power.

Another “ill effect” is the exclusion of the best, highest quality representative. Many would either choose not to serve or the people would be prohibited from choosing the best for another term as term limits would prohibit service. Bluntly stated, term limits can leave people without the best choices. And why shouldn’t people be allowed to use the best people for the benefit of the nation or the state simply because of a self-denying ordinance?

Hamilton’s final “ill effect” is instability. Without institutional knowledge, with constant change, there would be constant change in laws and policies, which would lead to instability and citizens who don’t know whether laws are laws or have been removed, changed, etc. If we think citizens are ignorant now regarding their representatives, they’ll only be worse with a constant change of representatives and laws. But don’t take my word for it. Read Hamilton’s argument in Federalist 72.

With regards to the federal judiciary, good behavior is just as stated. For example, the second impeachment trial ever held against a federal justice removed him for reasons of drunkenness and insanity. Good behavior would certainly include any violation of the Constitution such as including foreign cases, laws or rules in their opinion or argument, thus violating the Constitution’s Supremacy Clause. Usurping authority such as was the case in Roe v. Wade, a power reserved to the states, and which was properly returned to the states more recently, would have warranted impeachment and removal for bad behavior. One example, cited in my book—The Founders’ Revolution— in Lawrence v. Texas, Justice Kennedy, along with the justices that concurred, used a British case and the European Court of Human Rights to argue his opinion, placing the Constitution in a position of inferiority rather than as Supreme, a violation of his oath and the Constitution—bad behavior. In fact, “bad behavior” is much broader and thus a much easier cause to remove justices than any impeachment an removal of executive branch personnel. However, it is almost never used. Again, the underlying cause is a failure to use or follow the Constitution. The bandage for the jugular is term limits. I won’t even bother to discuss the inclusion of term limits on bureaucrats, ALL of whom are in unconstitutional positions to begin with.

One more quick one. An amendment to prohibit using international treaties and law to govern domestic laws is one that convention of states people like. It is unnecessary as there is already a clause prohibiting this. It is called the Supremacy Clause, Article VI, previously mentioned, which makes it perfectly clear that the Constitution is Supreme. An amendment would just be one more that the federal government could and would ignore, like they currently are with regards to the Supremacy Clause.

I could go on. The point concerning the proposed amendments is that the federal government is already ignoring much of the Constitution and any amendments could and would be ignored, like much of the rest of the Constitution.

Additionally, if we take the Convention of 1787 as a 100% legitimate Articles amending convention rather than what it was, an article trashing convention, the Constitution must necessarily be considered the Articles of Confederation amended. If that is the case, then the rule-makers changed the Article XIII rule, making ratification 2/3 of the states rather than a unanimous requirement. Furthermore, rather than ratification by state legislatures following Congressional approval, they changed it to state conventions without congressional approval. This is also one of the dangers of a convention. What if the rules change it to ratification by 50% of the states or some other level? What if the people or their representatives are skipped altogether? I know convention of the state’s supporters believe that ratification comes only by what the Constitution says but precedent proves that the process and ratification levels can be changed by the rule makers.

Moreover, with only history as precedent, any convention very easily could become a full-blown, constitution-trashing convention. Are we willing to place such a document in the hands of people with far less vision, inspiration, character and selflessness as was found in the Framers of the Constitution? Are we willing to trust that rule makers WON’T change the rules of the convention and suggest more than they are authorized or make any other changes including changing all the rules, i.e. the Constitution? The logic of rule makers not changing rules is illogical.

As for me, I am sticking with Benjamin Franklin who said, “I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best.”

A convention of states is unwise, at best, but is far too dangerous with too many evidences of that danger to attempt. State legislatures must avoid it at all costs, as it very well could cost us everything. Discussion is great but informed discussion is better. My intent, as always, is to educate and provide information for discussion. I hope discussion ensues. As for me, the Constitution, its enforcement, and following it to the letter is all that matters. If we would follow it and the Framers’ intent, many of the issues surrounding out-of-control government would come into control and we would be drowning, so to speak, in liberty and prosperity.

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[i] Proceedings Of Commissioners To Remedy Defects Of The Federal Government (New Haven: Avalon Project, 2008), accessed May 12, 2015, http://avalon.law.yale.edu/18th_century/annapoli.asp. (Emphasis added.)

[ii] Articles of Confederation: March 1, 1781 (New Haven: Avalon Project, 2008), accessed May 12, 2015, http://avalon.law.yale.edu/18th_century/artconf.asp.

[iii] Report of Proceedings in Congress; February 21, 1787 (New Haven: Avalon Project, n.d.), accessed July 10, 2015, http://avalon.law.yale.edu/18th_century/const04.asp. (Emphasis added.)

[iv] Max Farrand, The Records of the Federal Convention of 1787 (Indianapolis: Liberty Fund, 2011), 706, accessed May 13, 2015, http://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-vol-3.

[v] Ibid. 710.

[vi] Ibid. 712. (Emphasis added.)

[vii] Ibid. 716.

[viii] Ibid. 719.

[ix] Ibid. 721.

[x] Ibid. 723.

[xi] Ibid. 726.

[xii] Ibid. 727.

[xiii] Ibid. 731.

[xiv] Ibid. 732.

[xv] Ibid.