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.