Tuesday, November 23, 2010


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.


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  2. I must disagree with one point of your article. You state that Congress could refuse to send out a proposed amendment for consideration by the states if it simply "sat" on the ratification choice allocated by the Constitution and thus "veto" the proposal by a "pocket" veto.

    The courts have ruled on this issue and their decisions do not support your assumption. Congress is limited to one of two methods of ratification and while the states can refuse to ratify the proposed amendment, the courts have emphatically stated Congress does not have the authority to alter the method which the Constitution has fixed. See U.S. v Sprague, 282 U.S. 716 (1931); Hawke v smith, 253 U.S. 221 (1920).

    As the courts have ruled that there is no interpretation in Article V (Sprague) therefore as Article V does not state Congress has a third option--veto the proposal from the convention, it must choose between one or the other methods. Sprague particularly is important on this point as this was the very issue of the case; whether the words "as may be appropriate in the view of the purpose of the proposed amendment." The court stated emphatically: "This cannot be done."

  3. My friend misreads Sprague. That was a case in which the defendants argued that the 18th amendment was invalid becuse not ratified by conventions in the states. Congress had specified ratification by the state legislatures, and the requisite number of legislatures in fact ratified the amendment.

    Under Article V, Congress is authorized, indeed obligated, to determine the method of ratification, whether by state conventions or by state legislatures.

    If the House of Representatives votes to ratify by convention and the Senate votes to ratify by legislatures, what will happen?

    The Supreme Court is not authorized to make the choice.

  4. Since interest in convening a convention to propose amendments in accordance with Article V has grown rapidly among legislators throughout the United States, Judge Brennan appropriately identifies the John Birch Society and the Eagle Forum as two groups which are resurrecting the myth such a convention will somehow get out of control and toss the existing Constitution in the trash can.

    These organizations are the unwitting servants of the far left, which will do and say anything to prevent a convention from ever being held.

    National conventions during the founding era were numerous, called by the state legislatures, and controlled by the states. Several were convened for one or two specific topics. Not one convention, including the Philadelphia Convention, had the power to change anything, but only to make recommendations to the states.

    Whether or not the Philadelphia Convention of 1787 ran away (which it did not) is moot. The United States was functioning at the time under the Articles of Confederation. There was no provision in the Articles for any type of convention. National conventions were the tools of the states to discuss national issues.

    Understanding the Constitution would need to be amended, the founders included an entire Article – not a simple reference or subsection – which provided a process to propose and ratify amendments. Included in Article V is the ability of the states to call a convention to discuss and propose amendments.

    As applications for an Article V Amendments Convention are being filed in state legislatures across the country at this time, now again comes the myth, the ghost, that an Amendments Convention should be stopped as it can “do anything it wants to do.”

    Fear is a very powerful tool.

    By 1990, 32 states had passed an application resolution calling for a limited convention to propose a balanced budget amendment. The John Birch Society and the Eagle Forum spread the notion such a convention would be ruinous, creating fear among state legislators, causing the effort to fail.

    Each group also stated the issue of national debt and borrowing could be resolved by way of the election process - that an amendment to the Constitution was unnecessary.

    In 1990 the national debt was $3.2 trillion. Today it is $14 trillion. These two groups were apparently unsuccessful in using the election process to achieve their goal. Since they are specifically responsible for stopping the effort to convene a convention to propose a balanced budget amendment, they should also be considered responsible for the $11 trillion of debt which has been accumulated since they stopped the effort to prevent the borrowing.

    The provision for the states to call for a convention to propose amendments was specifically placed in the Constitution for the states to “restrain the national government.”

    It is a tool provided by the founding fathers to protect the people from a central government taking from them their freedom and liberty. The founding fathers knew the national government would attempt to grow. They expected the states to stop it by convening conventions.

    So let us talk about two fears. The first is the conjured, mythical fear of a run-a-way convention. The second is the real fear that we could loose our Republic within ten years.

    If we do not prevent the federal government from increasing our national debt, then we as a nation face financial ruin within ten years as there is not enough money in the world to pay for all of the planned borrowing.

    If we do not prevent the expansion of the federal government into cities, counties, and schools, the federal government will control all government within ten years.

    If we do not prevent the federal government from manipulating, by way of taxation and regulation, private businesses, we will loose our private economy within ten years.

    This list can go on and on. The bottom line is if we do nothing, this great experiment in representative democracy will fade into the night. So, choose your fear.