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A GREAT Letter From Constitutional Scholar Publius Huldah on the Dangers of the Article V Convention of States!

I know I’ll get a bunch of comments on this but here it goes [My comments will look like this]:

Honest discourse about Article V convention needed

By Publius Huldah

Whether States should ask Congress to call a convention under Article V of our federal Constitution is one of the most important issues of our time. The Delegates to such a convention, as Sovereign Representatives of The People, have the power to throw off the Constitution we have and set up a new Constitution – with a new and easier mode of ratification – which creates a new government.1

Americans need the Truth. But former law professor Rob Natelson’s recent article in The Hill is filled with ad hominems and misstatements. Natelson is legal advisor for pro-convention groups such as “Convention of States Project” (COSP).

Poisoning the well” fallacy

Natelson characterizes those who oppose an Article V convention as “big government advocates”; “Washington insiders” who protect “judges and politicians who abuse their positions”; chanters of “talking points” from the “disinformation campaign” of the 1960s and early 1970s who have “no real expertise on the subject”; and, like those involved in “voter suppression efforts”, use “fear and disinformation” to discourage citizens from exercising their rights.

[Neither I nor Publius Huldah nor any other anti-COS activist can be described as big government advocates, DC insiders or interested in protecting abusive pols]

And while such tactics clearly resonate with COSP’s cheerleading squad; 2 others immediately recognize the preemptive ad hominem attack known as the “poisoning the wellfallacy. That fallacy is committed when one primes the audience with adverse information or false allegations about the opponent, in an attempt to bolster his own claim or discount the credibility of the opponent.

Obviously, Natelson’s characterizations don’t constitute proof that he is right, and opponents are wrong.

Misrepresentations, omissions, and irrelevant “academic research”

1. Natelson asserts:

“Our founders designed this [Article V convention] as a way the people could fix the federal government if it became abusive or dysfunctional”.

But he presents no proof – and can’t because no one at the federal convention of 1787 (where our present Constitution was drafted) said such a thing. As proved in The George Mason Fabrication, the Delegates agreed that the purpose of amendments is to correct defects in the Constitution.

[Let me assert here – I do believe the amendment process was to maintain the people’s control over the new federal government.  Problem is:  we’ll never get a majority of conservatives at any COS convention.  Read this scenario I wrote!]

2. Natelson asserts:

“Any proposals must… be ratified by 38 states before they become law.”

That’s not true. While any amendments to our Constitution must be ratified by 38 States; our Declaration of Independence says it’s the “self-evident” Right of a People to abolish their government and set up a new one.

[Publius is exactly right!  Read on.]

We invoked that Right in 1776 to throw off the British Monarchy.

In 1787, we invoked that Right to throw off our first Constitution, the Articles of Confederation; and set up a new Constitution – the one we now have – which created a new government.

How did we get from our first Constitution to our second Constitution? There was a convention to propose amendments to our first Constitution!

The Continental Congress resolved on February 21, 1787 to call a convention to be held at Philadelphia:

for the sole and express purpose of revising the Articles of Confederation”.

But the Delegates ignored this limitation – they ignored the instructions from their States – and they wrote our second Constitution.

And in Federalist No. 40 (15th para), James Madison invoked the “precious right” of a People to throw off one government and set up a new one, as justification for what they did at the federal “amendments” convention of 1787.

We can’t stop that from happening at another convention. Furthermore, any new constitution will have its own mode of ratification. Whereas Art. 13 of the Articles of Confederation required amendments to be approved by the Continental Congress and all of the then 13 States; the new Constitution provided at Article VII that it would be ratified by 9 States.

Any proposed third constitution will have its own mode of ratification. The proposed Constitution for the Newstates of America is ratified by a national referendum (Art. XII, §1). The States don’t ratify it – they are dissolved and replaced by regional governments answerable to the new national government.

3. Natelson asserts that “academic research” shows:

“…how the convention is chosen and operates: It is a meeting of state representatives of a kind very common in U.S. history…The convention follows a pre-set agenda and attendees are subject to state legislative direction.”

But Natelson doesn’t mention the federal “amendments” convention of 1787. That convention involved Delegates who ignored the instructions from their States 3 and from the Continental Congress, and resulted in a new Constitution with a new and easier mode of ratification. That is the “meeting” which is relevant to the convention Congress has the power to call under Article V of our Constitution.

The “calling” of a convention by Congress is governed – not by Natelson’s “meetings” – but by provisions in our Constitution. Article V delegates to Congress the power to “call” a convention; and Article I, § 8, last clause, delegates to Congress the power to make laws “necessary and proper” to carry out that power.

As to the sovereign powers of Delegates, look to the Declaration of Independence, the federal “amendments” convention of 1787, and Federalist No. 40 – not to Natelson’s “meetings”.

4. In an earlier article, Georgetown law professor David Super cited Coleman v. Miller (1939) to show that as amending the Constitution is a “political question”; the courts are unlikely to intervene. 4

Natelson responded that Coleman is a 79-year old “minority opinion the courts have long repudiated”; but doesn’t show where the Supreme Court “repudiated” its opinion.

What Coleman shows is this: we can’t expect federal courts to make Delegates obey instructions. No one has power over Delegates – Delegates can take down one government and set up a new one.

Conclusion

Here’s an idea: Let’s all read our Declaration of Independence and Constitution; elect only people who have also read them, know what they say, and agree to obey; and then let’s downsize the federal government to its enumerated powers.

Endnotes:

1 This is why James Madison, Alexander Hamilton, four Supreme Court Justices, and other luminaries warned against an Article V convention.

2 At 5:25-7:35 mark. Archived HERE.

3 The States’ instructions are HERE at endnote 9.

4 When a power is delegated to a “political” branch [legislative or executive], federal courts [“judicial” branch] traditionally abstain from interfering and substituting their judgment for that of the branch to which the power was delegated.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

3 Responses to “A GREAT Letter From Constitutional Scholar Publius Huldah on the Dangers of the Article V Convention of States!”

  1. David Dietrich says:

    Honest Response to Joanna Scutari’s so-called “‘Honest’ discourse about Article V convention needed”

    by David Dietrich

    “Whether States should ask Congress to call a convention under Article V of our federal Constitution is one of the most important issues of our time. The Delegates to such a convention, as Sovereign Representatives of The People, have the power to throw off the Constitution we have and set up a new Constitution – with a new and easier mode of ratification – which creates a new government.”

    There’s nothing more dishonest than this opening statement. Using this same logic, Congress, being a continuous constitutional convention, at any time can “throw off the Constitution we have and set up a new Constitution – with a new and easier mode of ratification – which creates a new government.”

    “Americans need the Truth. But former law professor Rob Natelson’s recent article in The Hill is filled with ad hominems and misstatements. Natelson is legal advisor for pro-convention groups such as ‘Convention of States Project’ (COSP).”

    This article is filled with non sequiturs and misstatements. Scutari is dog whistler for anti-constitutional groups such as John Birch Society.

    Mr Sanders identifies Natelson’s argument as a “’Poisoning the well’” fallacy,” while he uses argumentum ad lapidem. Sanders cannot articulate a proper constitutional argument himself.

    “Natelson characterizes those who oppose an Article V convention as ‘big government advocates’; ‘Washington insiders’ who protect ‘judges and politicians who abuse their positions’; chanters of ‘talking points’ from the ‘disinformation campaign’ of the 1960s and early 1970s who have ‘no real expertise on the subject’; and, like those involved in ‘voter suppression efforts’, use ‘fear and disinformation’ to discourage citizens from exercising their rights.”

    This is actually quite true. Whether Scutari or Sanders admit it or not, they merely support the big government status quo. They offer nothing but big government solutions to their perceived problems of big government.

    “[Neither I nor Publius Huldah nor any other anti-COS activist can be described as big government advocates, DC insiders or interested in protecting abusive pols]”

    Both Scutari and Sanders continue to make such claims, but their political position has been solidified by their anti-constitutional history.

    “And while such tactics clearly resonate with COSP’s cheerleading squad; 2 others immediately recognize the preemptive ad hominem attack known as the ‘poisoning the well’ fallacy. That fallacy is committed when one primes the audience with adverse information or false allegations about the opponent, in an attempt to bolster his own claim or discount the credibility of the opponent.”

    Such tactics clearly resonate with the anti-constitutional cheerleading squad, We the People immediately recognize the preemptive ignoracio elenchi fallacy, whereby the deceiver arrives at an irrelevant conclusion to influence the audience.

    “Obviously, Natelson’s characterizations don’t constitute proof that he is right, and opponents are wrong.”

    Obviously, Natelson’s argument is correct, and proves itself once again here.

    “Misrepresentations, omissions, and irrelevant ‘academic research’”

    Representations, inclusions, and relevant academic research.

    “1. Natelson asserts:

    ‘Our founders designed this [Article V convention] as a way the people could fix the federal government if it became abusive or dysfunctional’.

    But he presents no proof – and can’t because no one at the federal convention of 1787 (where our present Constitution was drafted) said such a thing. As proved in The George Mason Fabrication, the Delegates agreed that the purpose of amendments is to correct defects in the Constitution.”

    Natelson presents all the proof he needs. In fact, it’s in the pudding. Simply read the US Constitution to open your eyes. In addition, James Madison’s notes on the subject from 15 September 1787, http://www.nhccs.org/dfc-0915.txt, offer no such limitation as Scutari’s only “to correct defects in the Constitution.”

    “[Let me assert here – I do believe the amendment process was to maintain the people’s control over the new federal government. Problem is: we’ll never get a majority of conservatives at any COS convention. Read this scenario I wrote!]”

    The garnering of a “majority of conservatives” for the purpose of a Convention for proposing Amendments is irrelevant. You either support the People or you support Big Government.

    “2. Natelson asserts:

    ‘Any proposals must… be ratified by 38 states before they become law.’

    That’s not true. While any amendments to our Constitution must be ratified by 38 States; our Declaration of Independence says it’s the “self-evident” Right of a People to abolish their government and set up a new one.”

    Wow! Talk about playing fast and loose with the truth! Ignoring the words of the US Constitution to make your argument hold water, makes me wonder what’s in your water. It’s a complete non sequitur.

    And then, to use the words in the Declaration of Independence to further bolster your fallacious argument shows your fundamental lack of understanding of our system of government. In fact, no Article V Convention is required for the People to abolish their government. That Right can be exercised at any time.

    “[Publius is exactly right! Read on.]”

    Scutari is exactly wrong! Read on…

    “We invoked that Right in 1776 to throw off the British Monarchy.

    In 1787, we invoked that Right to throw off our first Constitution, the Articles of Confederation; and set up a new Constitution – the one we now have – which created a new government.

    How did we get from our first Constitution to our second Constitution? There was a convention to propose amendments to our first Constitution!”

    Wrong! There was no Convention to propose amendments to the Articles of Confederation. It was instead a Convention to discuss issues of commerce and trade and to ““render the federal constitution adequate to the exigencies of government and the preservation of the union.”

    “The Continental Congress resolved on February 21, 1787 to call a convention to be held at Philadelphia:

    ‘for the sole and express purpose of revising the Articles of Confederation’.

    But the Delegates ignored this limitation – they ignored the instructions from their States – and they wrote our second Constitution.”

    Note here the sleight of hand with the Convention authority. It wasn’t Congress’, but rather the States who convened and set their own destiny. As it should be in our Constitutional Republic. Here again, Scutari’s Big Government proclivity arises.

    “And in Federalist No. 40 (15th para), James Madison invoked the ‘precious right’ of a People to throw off one government and set up a new one, as justification for what they did at the federal “amendments” convention of 1787.”

    Madison is exactly right here. But once again, Scutari thinks Madison is misguided and any such change should only occur with the blessing of Big Government.

    “We can’t stop that from happening at another convention. Furthermore, any new constitution will have its own mode of ratification. Whereas Art. 13 of the Articles of Confederation required amendments to be approved by the Continental Congress and all of the then 13 States; the new Constitution provided at Article VII that it would be ratified by 9 States.”

    I agree with Scutari here. We can stop neither the States nor Congress from writing a new Constitution at any time.

    “Any proposed third constitution will have its own mode of ratification. The proposed Constitution for the Newstates of America is ratified by a national referendum (Art. XII, §1). The States don’t ratify it – they are dissolved and replaced by regional governments answerable to the new national government.”

    Scutari’s love affair with the Newstates of America once again shows her love of Big Government. We either have a government of the People, or we don’t.

    “3. Natelson asserts that “academic research” shows:

    ‘…how the convention is chosen and operates: It is a meeting of state representatives of a kind very common in U.S. history…The convention follows a pre-set agenda and attendees are subject to state legislative direction.'”

    All true to the best of our understanding. And since no one can know what they don’t know, we must resort to historical precedent.

    “But Natelson doesn’t mention the federal ‘amendments’ convention of 1787. That convention involved Delegates who ignored the instructions from their States and from the Continental Congress, and resulted in a new Constitution with a new and easier mode of ratification. That is the “meeting” which is relevant to the convention Congress has the power to call under Article V of our Constitution.”

    Once again, Scutari makes a false claim here. The Constitutional Convention was no more a “federal amendments convention” than the Declaration of Independence was a parliamentary procedure. And grounding her argument in the power of Congress only serves to solidify her Big Government position.

    “The ‘calling’ of a convention by Congress is governed – not by Natelson’s ‘meetings’ – but by provisions in our Constitution. Article V delegates to Congress the power to ‘call’ a convention; and Article I, § 8, last clause, delegates to Congress the power to make laws ‘necessary and proper’ to carry out that power.”

    Scutari is only partly correct here. Article V does govern the calling of a Convention. However, she is incorrect in claiming that Article I grants authority to Congress to run the Convention. Because the event is initiated by the States, there is no direct involvement in the process by Congress. Just as the States have no power to legislate federal law, it is only the States that have Amendment Convention authority.

    “As to the sovereign powers of Delegates, look to the Declaration of Independence, the federal “amendments” convention of 1787, and Federalist No. 40 – not to Natelson’s ‘meetings’.”

    Scutari is correct here. But, by arguing against sovereign power of the People, she argues against State power. And once again, she supports Big Government.

    “4. In an earlier article, Georgetown law professor David Super cited Coleman v. Miller (1939) to show that as amending the Constitution is a “political question”; the courts are unlikely to intervene.

    Natelson responded that Coleman is a 79-year old “minority opinion the courts have long repudiated”; but doesn’t show where the Supreme Court “repudiated” its opinion.

    What Coleman shows is this: we can’t expect federal courts to make Delegates obey instructions. No one has power over Delegates – Delegates can take down one government and set up a new one.”

    Okay, Scutari recognizes the sovereign authority of the People, but then falls back on here Big Government position to rein in such authority. Ultimately, you’re either for the People or you’re not. Clearly, Scutari and Sanders are in the latter camp.

    “Conclusion

    Here’s an idea: Let’s all read our Declaration of Independence and Constitution; elect only people who have also read them, know what they say, and agree to obey; and then let’s downsize the federal government to its enumerated powers.”

    Here’s an idea: Let’s all embrace the sovereign authority of the People and do everything we can to show Big Government who’s really in charge. Reading is great and electing is nice, but when was the last time either of those had any tangible impact on the growth of our Big Government? Big Government will never downsize itself. Only the People have the power to force the issue.

  2. Publius Huldah
    Twitter:
    says:

    Beware of “Newspeak”!

    COSP has fooled some people into believing there is a difference between a “constitutional convention” (where our existing Constitution can be replaced); and an “Article V convention”. COSP has REDEFINED the Article V convention as a “convention of states” which is controlled by state legislators!

    But there’s no such thing as a “convention of states” in the Constitution – COSP made it up!

    The proper term is, “Article V convention”. And Congress “calls” it. Congress may or may not permit the States to select Delegates. Congress might appoint themselves!

    It was the convention provided for by Article V which made James Madison “tremble”, which Alexander Hamilton “dreaded”, and which four (4) US Supreme Court Justices warned most strongly against. Go HERE for the proof. http://caavc.net/wp-content/uploads/2018/04/Brilliant-men-r1-2.pdf

    No prudent person would ignore such warnings.

    Of course, I understand that some amateurs think they know more about it than did the brilliant men….

    • David Dietrich says:

      Beware of “Newspeak”!

      Big Government proponents have fooled many people into believing there is nothing the People can do to chart their own destiny.

      There is most certainly a difference between a Convention for proposing Amendments (aka a “Convention of States”) and a Constitutional Convention. Big Government has conflated the two merely to scare the People into submission.

      But, as Scutari stated above, the Convention of States is controlled by state legislators.

      Alas, there is no such thing as a Constitutional Convention in Article V of the Constitution – Big Government proponents like Scutari make it up!

      The proper term, as I just stated, is “Convention for proposing Amendments.” Scutari can’t even get that right. While Congress “calls” it, they have no authority over delegate selection or behavior. Once again, I refer you to Article V to find such authority.

      It was not the convention provided for by Article V which made James Madison “tremble.” Once again, refer to his notes from the Article V committee, http://www.nhccs.org/dfc-0915.txt, to discover any such trepidation. It’s simply not there.

      And even if Big Government proponents did fear such an event, it wasn’t because the People would demonstrate their rightful power, but rather it was because Big Government would be diminished.

      No real representative of the People would support Big Government.

      Of course, I understand how such Big Government patsies as Scutari would want you to believe otherwise. They think they know more about the Founders’ intentions than you…

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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