Surfing the Internet the other day, I happened upon a blog called “the Liberty Papers” which was celebrating its fifth anniversary.
To mark the occasion, they reprinted some of their “best” essays. One of them offered the shrill and tired arguments against an Article V Convention which have been repeated and repeated by the John Birch Society and others who don’t trust the American people.
Their keynote is always the letter that Chief Justice Warren Burger wrote to Phyllis Schlafly. He said:
I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress “for the sole and express purpose.”
Sometimes a half truth is more deceiving than an outright lie.
Burger was quite right in saying that a convention makes its own rules and cannot be muzzled.
But when he says that a convention cannot be ‘stopped,’ he is talking nonsense.
The convention can amend the constitution? Are you kidding? There is no way the convention could do that.
The constitution only gets amended when three quarters of the states ratify an amendment. That’s thirty-eight states.
And the states can only ratify amendments that come from the United States Congress.
An Article V convention can’t send amendments out to the states. It has to send its proposals to the Congress. Then the Congress decides whether an amendment should be ratified by state legislatures or by conventions in each state.
Unless the Congress agrees on the method of ratification and sends the amendment to the states, nothing - absolutely nothing - can happen.
So it’s like everything else in politics. If an amendment is popular enough, the voters will insist that the Congress send it out to the states to be ratified. If an amendment is unpopular, or even sufficiently controversial, the Congress will sit on it, and nothing will happen.
But if the “too late to stop” argument is a phoney, the claim that the 1787 convention was a run away meeting that ignored limits placed on it by the confederation Congress, is downright preposterous.
Let’s look at the record.
From September 11 through September 14, 1786, twelve delegates from five states met in Annapolis, Maryland. It was called a “Meeting of Commissioners to Remedy Defects of the Federal Government.”
The Commissioners accomplished only one thing. They decided to ask all thirteen states to send delegates to Philadelphia the following May.
They got a good response. By February of 1787, the confederation Congress had before it several resolutions calling for a convention in Philadelphia.
Here is what they adopted:
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 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 & the preservation of the Union.
Chief Justice Burger cites the phrase “for the sole and express purpose’ without mentioning what the purpose was. A half truth. Cheesy lawyer trick.
What the Congress really said was “for the sole and express purpose of REVISING the articles of confederation.”
Webster’s dictionary tells us that REVISING means remodeling, revamping, remaking, doing over.
Revising is not the same as amending. Revising means creating a whole new constitution. A revised constitution. A different constitution,
The original Articles of Confederation contained a provision that they could not be amended without the unanimous agreement of all thirteen states. A daunting requirement. And a good reason to go to Philadelphia.
True, the 1787 document required only nine states to ratify. But it also said that only those states which ratified it would be bound by it. By 1790, all thirteen states were on board, so the question of whether the United States of America was born in 1781 or 1789 is moot.
In any case, the Burger legacy is mischiefious.
The super patriots who love our constitution and regard it as divinely inspired seem willing to worship everything but Article V.
Those on the far left oppose a convention because they fear crackpot conservatives.
Those on the hard right oppose it because they fear hair brained liberals.
They’re all afraid of We The People.
Burger was educated in a working man’s law school in Saint Paul, Minnesota.
Somehow, he outlived his populist roots.
It can happen if you spend a lot of time in Washington, D.C.