To Those Who Fear A Runaway Article V State Amendments Convention.

A couple of prominent conservatives have expressed concern over the possibility of a ‘runaway’ Article V state amendments convention. Such is their anxiety that runaway tyranny from Rome-on-the-Potomac pales in comparison to the possible horrors of the states getting together to relieve their people from oppression. Are these concerns fact based or irrational or somewhere in between?

An important, and likewise extra-congressional vestige of the federal system of 1787, and quite similar to an Article V state amendments convention in its constitutional foundation remains in force today. It is the familiar Electoral College (EC). Like the state amendments convention, the EC is also a specific grant of constitutional authority distinct from congress, courts and presidents. Both the EC and Article V convention are temporary, and neither can be made subservient to any branch of the government. This renders the EC and state amendments convention separate from, and superior to the three branches of government. The state amendments convention process is created by Article V; it is not a component of any of the three branches of government created by the first three articles. The limits to congressional involvement and duties are in Article V. Congress must call a convention upon applications from two thirds of the states, and determine the mode of ratification. That is all.

The EC is also loathed by liberals. Witness the National Popular Vote movement. The EC and state amendments convention processes represent end runs around liberals’ wholly owned government in Washington DC and media. The EC and an Article V convention are federal and therefore anti-democratic, which is why libs despise the EC and are working toward complete nationalization of presidential voting. Libs love democracy. Recall the 17th Amendment which turned ambassadors from the states into three-term, democratic and demagogic congressmen.

The EC and state amendments convention processes are federal remnants of a more perfect union that placed liberty preserving institutions ahead of fuzzy pablum populism, and democracy.

If you oppose a state amendments convention, do you also fear the Electoral College?

The EC is extra-congressional and completely controlled by the states. If the states are so wild and politically insane, why haven’t we had ‘runaway’ sessions of the EC? For whomever the states cast their votes is entirely up to the individual states. They can split their votes between Uniparty candidates or cast votes for Joe Blow down the street. States can modify their statutes such that their legislatures may determine for whom to vote with zero input from their citizens. The EC confab is a one-day event. Isn’t that dangerous? There is no subsequent meeting that requires approval of three fourths of attendees to implement the results. Why haven’t we experienced a runaway Electoral College?

Why hasn’t congress set down the rules the states and EC must follow? Answer: Congress has no more authority to participate in the deliberations of the EC than it does to participate in, or set the rules for an Article V state amendments convention.

No state EC delegation ever ‘ran away’ because the simple fact is that the duties of electors are defined by state statute. Replace the term ‘elector’ with ‘delegate,’ and you have a situation identical to that of an Article V amendments convention.

Delegates will serve their states. They will have no attachment to any statutory authority under the US.

Publius, contrary to your indication, Madison in Federalist #40 does not not actually contend with my assertion that the Convention of 1787 was a runaway convention, but rather Madison himself confirms the runaway convention in that authoring, and the provides the rationalization that working within the bounds of the Articles of Confederation would have allowed for nothing workable.

The fact of history, even as recognized by Madison Federalist #40, is that those Delegates at the Convention were only charged with the authority for "ALTERATIONS" and "PROVISIONS" to the Articles of Confederation, but that's not what they did. Furthermore, those delegates also disregarded the specific terms of ratification indicated by the Articles of Confederation under which they operated, to create a lesser standard for that ratification, only 3/4ths of the States, rather than unanimity.

The same excuse will undoubtedly be employed today, and in fact it is already evident in the rationalizations provided by Congress, CRS and other organizations.

Pretending that we are now safe by the same standards applied by the founders themselves, is just not an accurate reflection of the facts.

As far as an Article V Convention goes, even Alexander Hamilton touches on why we NOW DO NOT DARE have a Convention of the States again, and Hamilton does so right where logic might tell you to find it: the very last of all the Federalist Papers, Federalist #85!

Among the things Hamilton indicates in Federalist 85 is:

"The reasons assigned in an excellent little pamphlet lately published in this city, are unanswerable to show 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."

Please pause and read those words again and let them soak in.

Right there, in one single sentence, Hamilton recognizes a profound fact of the very history that he himself was still living in, and a part of, even as he wrote those very words! The insight Hamilton shows here is amazing, almost breathtaking.

The fact is that at NO TIME following that Convention in Philadelphia, where they drafted the Constitution, will the people of this country ever convene again and have the same unified, mutual interests in common among them.

After that one moment in time, where the country has been formed and stabilized, each group and State have developed their own divergent interests, with Americans to never again so closely share in common such same interests and motivations as they did at that one time.

It is precisely because of those divergent interests and motivations now being so entirely in conflict with not only one another, but also in conflict with the very principles of this country itself, that we DARE NOT now have a Convention of the States, as there is ZERO HOPE that it will have any similarly positive and constructive outcome.

In point of fact, an Article V Convention of the States is the wrong tool for the job at hand. The only possible outcome of a Convention now will be to reduce the Constitution itself, and in so doing remove the legitimacy of our objections to an entirely illegitimate government.

Contrary to (mis)representations, those Founders NEVER indicated, "When the federal government deliberately ignores the Constitution, write more of it." This claim is utterly absurd, and nowhere actually supported by even one reference.

The only valid remedies repeatedly recognized by those Founders for when a government is in deliberate breech of its terms of legitimacy, is to either invalidate the government's actions, or to throw off that government entirely, and provide new guards for our future security. As hard as it may be to accept, the remaining remedies really have been reduced to two, and two alone:

1) State Nullification of invalid Laws, or
2) Secession and/or Revolution.

"Writing more Constitution" is nowhere a rational remedy, much less a viable one. The only possible outcome by that means is to undermine and reduce the Constitution, not restore it.

Brilliant post.

I would amend, or should I say broaden, your “state nullification” solution a bit, though.

The fix, when government officers begin to usurp powers not properly granted to them, or fail to fulfill their assigned constitutional tasks, in failure of their oaths, is to rein them in via the other branches and levels of government, and, failing that, to get new officers.

All of the wise political philosophers of history, Cicero, Aquinas, Blackstone, and others, rightfully said that laws which violate the laws of nature and nature’s God, ARE null and void. You don’t need to nullify them. They already are null. In other words, they do not exist. Ignore them.

Hamilton said the exact same thing about laws that violate the Constitution. They ARE null and void.

That recognition is the first step in restoring the checks and balances on power that our wise founders intended.

Every man or woman who takes the oath of office swears to support and defend the Constitution. That means they must read it, and understand it, and apply it faithfully within their own legitimate jurisdiction.

We need representatives who understand the Constitution and its basis, who will keep their oaths.

Once we have those in place, THEN, and only then, would be the time to VERY CAREFULLY fix any deficiencies in our governing document.

I’ve never called the motives of the amendments convention supporters into question, though not all of them have granted me the same consideration. By and large they are well-intentioned people who are frightened by what our government has become, and not without very good reasons. But they’re putting the cart before the horse.

Process fixes are fine and dandy. But they are no substitute for what we’re really lacking: knowledge, and understanding, and wisdom, and CHARACTER in those who represent us.

Claims that Madison actually supports an Article V Convention as a remedy to a government in deliberate violation of the Constitution, are utterly false misrepresentations.

As example, Article V proponents at "ConventionOfTheStates.Com" entirely misrepresent Madison's comments to Edward Everett in August of 1830, as supporting an Article V Convention for a government deliberately in violation of the Constitution, when Madison is actually arguing in favor of State Nullification.

In that letter Madison only suggests that 3/4th of the States might overrule that Nullifying State by amending the Constitution to support federal authority, which is entirely the opposite of COS.com's claim!

Only after Nullification is shown to be ineffective, does Madison even briefly consider further amending the Constitution, to which Madison only devotes one small paragraph, consisting of only one single sentence, without any supporting argument offered for the Amendment option at all:

"Should the provisions of the Constitution as here reviewed, be found not to secure the government and rights of the states, against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution, lies in an amendment of the Constitution, according to a process applicable by the states.

Of note, Madison here is only suggesting amending the Constitution, when the Constitution itself is insufficient, i.e. "the provisions of the Constitution...[do) not secure the government." Madison is most certainly NOT suggesting amending the Constitution when government is deliberately in violation of the Constitution.

In the letter, Madison then immediately indicates the only valid recourse facing a deliberately illegitimate claim of federal authority:

"And in the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, there can remain but one resort, the last of all; an appeal from the cancelled obligations. of the constitutional compact to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra-constitutional right, to make the appeal.

Or to paraphrase Madison, following Nullification, there is Secession - "canceled obligations of the constitutional compact".

Contrary to the false claims being made, Madison does not suggest amending the Constitution as a valid response to government in deliberate disregard for the terms of the Constitution.

NULLIFICATION:

Thomas Jefferson, James Madison, Alexander Hamilton, and many others, are all specifically supporters of Nullification. Jefferson spoke for direct State Nullification in the Kentucky Resolution, whereas James Madison in the Virginia Resolution advocated a variant of nullification, that being "Interposition", in which the each State interposes itself between the federal government and the citizenry to protect them against the enactment of illegitimately usurped federal authority upon that citizenry.

Thomas Jefferson, Kentucky Resolution, 1798:

"But when powers are assumed which have not been delegated, a nullification of the act is the rught remedy; that every State has a natural right in cases not within the compact (casus non foederis), to nullify of their own authority all assumptions of power by others within their limites; that without this right they would be under the dominion, absolute and unlimited, of whatsoever might exercise this right of judgement for them; that, nevertheless this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject; that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject, as to its assumption of power, to the final judgment of those by whom, and for whose use, itself and its powers were all created and modified ..."

James Madison, Notes on Nullification, December 1834, in response to Jefferson:

"Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression. ... let him be his own interpreter in his letter to Mr. Giles in December 1826 in which he makes the rightful remedy of a state in an extreme case to be a separation from the Union, not a resistance to its authority while remaining in it."

James Madison, Virginia Resolution, 1798:

"That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."

Alexander Hamilton Federalist #28:

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. ... It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large."

SECESSION (Revolution)

Jefferson's letter to William B Giles, December 26, 1825, previously referenced in Madison's Notes on Nullification:

"keep ourselves in a situation to profit by the chapter of accidents; and separate from our companions only when the sole alternatives left are the dissolution of our Union with them or submission to a government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation."

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