Article V, Searching for Honest Brokers

I wish I could speak only to state legislators but I know some who disagree with what I have to say here would move heaven and earth to ensure none of the men and women who actually have to vote Yea or Nay for an Article V resolution should ever see this.

It’s not that I’m totally against taking the Article V risk, and this separates me from the anti- crowd, at least to a point, but I think the people who have to put their reputations, and their states’ reputations, on the line, should be the beneficiaries of full disclosure of what might lay ahead.

As of this moment I’m convinced they haven’t been served well.

As one who favors state showdowns with the federal government in general, the intent of Article V is fine with me. It was put there for a purpose, although in his oft-cited letter to George Tuberville in 1788, James Madison cast dire warnings about its use. (I think Article V architects such as Mark Levin are incorrect in asserting that Madison favored Article V over Nullification, but I also understand why he would say it. The opposite is easily argued, but is generally outside the scope of this article. Still, the spirit of nullification can’t help but be found hanging around the edges of this Article V process, as I’ll demonstrate in due course, and which is one reason I am not knee-jerk against it.)

So then, it’s not my intention to try to stop Article V in its tracks. There are others dedicated to that. My purpose here is to try to 1) ensure that the legislators, as they move forward in considering this action, are fully aware of the possible pitfalls that may lay ahead, and are none too cocksure that a simple Aye vote for an Article V resolution will end in the desired, and sometimes wrongly promised, success. I also want to impress on them the great solemnity of the moment. In doing so I wish to insure 2) that the Article V process is packaged honestly, by honest brokers, and 3) that opponents to Article V are given an honest and collegial hearing. (So far they have not.)

Once done, I can then light out after the sellers of Article V “tainted beef” and try to split them from this company of honest men and women. Let the honest brokers debate this process alone.

These are the limits of my interest in the Article V argument. I personally know people for whom I hold in the highest regard on both sides of this issue, plus others I hold almost as high based on their reputations alone. We have other fights to fight together, so why sow discordant seeds with this?

It’s the sellers of “tainted beef” who are my enduring purpose. And always have been, even before I knew their names. I’m here because I cannot abide hucksters, profiteers, and snake oil salesmen being allowed to march around in the garb of honest purveyors of ideas. To this end I’ve dedicated Part II.

The Article V Debate, Looking for Honest Brokers

The players in the Article V drama are four:

First, there are the Legislators. These are the primary objects of the Article V campaign. These are the people who must affix their names, and their states’, to the resolutions that will “make application to Congress” to “call a convention for proposing Amendments” to the Constitution. There still may be legislators who don’t even know this is what they will be doing…or maybe all they will be doing.

A note on the Mount Vernon Assembly: Last December 97 legislators from various states assembled at George Washington’s home to discuss organizational groundwork for an Article V convention. From press reports I got the impression that every attendee was a pro-Article V supporter, so no one went there to debate “if” but rather “how”. This was not a pre-convention convention by any stretch. Everyone attended with a suitcase filled with assumptions they had received from their own reading of various Article V proponents.

What is important to note about this fine assemblage is that these were not “official” delegates of their states, and while organized, they have no official capacity in the resolution process as it moves through the several legislatures.

It is these Legislators, all of them, who by their votes will either succeed or fail, and for good or ill, on whose shoulders this burden will fall. It is no small thing. No glory comes to anyone unless there is at least some risk of defeat.

While shutting the press and ordinary citizens out of this assembly, I assume these legislators were in daily contact with prominent civilian backers of this idea. Highest among them would likely have been well known conservative attorney, and talk show host, Mark Levin, whose 2013 book, The Liberty Amendments helped ignite this movement in the public’s eye, and Michael Farris, founder and chancellor of Patrick Henry College, a 49-mile bike path away from Washington, and founder of the Home School Legal Defense Association. Glenn Beck has also showed a great deal of interest, and has endorsed the movement, at least in some form. Likewise Neal Boortz and Herman Cain, more narrowly. Their reputations and accomplishments as conservatives have always been high, and any issue I may have with any of them would be one of style, not of patriotism or a lack of fight against the Left and authoritarianism.

The second group is the General Public, who are also the objects of these same arguments for and against Article V, for they are encouraged by both sides to convey their sentiments to their respective legislators, and also to send money to help defray at least the Petitioner’s expenses of paying for various media campaigns. (I’m unaware if the Respondents are raising money in this fashion.) We all agree, public support and enthusiasm is needed for this project to move to its fail-safe point.

Thirdly, there are the Petitioners, the Brokers who are proposing this Article V approach to change the Constitution, and who are making their case(s) (there are actually more than one, although again, I’m not sure the legislators are aware of this), of whom I’ve mentioned the two top leading proponents, Mark Levin and Michael Farris.

Finally, there are the Respondents, also Brokers, the men and women who believe this Article V drive is a bad idea, and who from the outset have voiced concerns and opposition; among them Phyllis Schlafly, the John Birch Society, and Publius Huldah, whose reputations as constitutionalists, conservatives and patriots are equal to those of the aforementioned Mssrs Levin and Farris and others I’ll mention later.

As to this nomenclature, I think it is appropriate to refer to the pro-Article V crowd as “Petitioners” since, in the 227 years since it was ratified, Article V has never been tried. So it is The New Case on the docket, and must be marketed accordingly. It can’t be offered to the public or legislators as if it were commonplace, a household idea. It has been bandied about since FDR at least, but never has it reached critical mass, (which I call the “fail-safe” point) where the collective states can actually march up to Capitol Hill, knock on the door, and hand their application for such a convention over to the Congress.

So it is the Petitioners’ first job to present an honest, well-briefed petition for Article V’s viability, not just its desirability, to the legislators and the people at large, as if they were judges and juries, not mere gawking patrons at a game of ring toss at the county fair. So certain rules should apply.

I assume you’re sufficiently up to snuff on the actual wording of Article V in the US Constitution, without me having to repeat it here. It’s about as long as the Boy Scout Oath or the 23rd Psalm and not nearly as complex. Anyone who can diagram a sentence can diagram the clear meaning of Article V.

And you’ll see Article V is far more notable for what it doesn’t say than what it does, which is why it invites speculation and debate. It also invites false promises and claims. And false certainties…on both sides, for it is an untruth to say that it will succeed if 34 states will just sign on to it, just as it is an untruth to say that it cannot succeed if they do the same things. These sorts of celestial certainties have no place in honest discourse between honest brokers.

So when it comes to defining what Article V does, is supposed to do, can do, can’t do, might not be able to do, every opinion is just as good as the next one, since there are so many empty pages yet to be written. Everyone is equally an amateur and expert at the same time. As with nullification and secession, the final word on Article V is that there will never be a final word.

These are all opinions. Not facts, not certainties, and anyone who says otherwise is either misinformed, incompetent (stupid), a liar (with ulterior motives), or delusional (a little in love with oneself). It’s above my pay grade to know which, so I’ll leave it at that.

This is why we find ourselves here today, trying to find honest brokers to sit down and politely make both the cases, pro- and con-, on Article V.

A comment on tone

I’m not sure you understand how important tone is in debate such as this, for remember, both sides of this argument purport to be Constitution-loving, patriotic Americans. This is not Left-Right, Reality vs Unreality, but Right-Right, where higher things than what a legislature can be told to do should still rule our intellectual corpus. Yet I have read some of the most condescendingly small things said about some very fine conservatives. I have read, short of the potty language common to the species, mockery and disrespect used against some of our finest people that reminds me more of what one finds in the bowels of DailyKuss.

May I suggest, by comparison: thirty-six years ago, in Jan, 1978, then-Governor Ronald Reagan and William F Buckley Jr sat down to debate the signing of the Panama Canal Treaty, and it was aired (watch here, well worth your time) on Buckley’s Firing Line program. I watched it live. Still in their 20s’ then, perhaps Mssrs Farris and Levin have never seen it. Buckley was for the Treaty, and Reagan against it, and being a bigger Buckley fan than Reagan at the time, I leaned toward Buckley’s argument. (I think history has proved Reagan more right than WFB however.)

But the greatest impression anyone would come away with from that debate is how congenially two honorable men could debate a really hotly-contested issue, looking one another in the eye, each knowing the other to be as deeply committed to the United States as the other.

Call me old fashioned, but this is how I imagine a debate over as serious a subject as an Article V application to Congress should be; the same respectful tone, the same mutual understanding between patriots of equal passion and strength of courage.

As for that message Americans wish to send to Congress, I empathize totally with the public sentiment, and through their state representatives they would like to force the Congress to do things it will not voluntarily do itself. It’s an appetizing thought, and, as I said, I’ve always been in favor of the states picking fights with Congress. But I never thought too much about Article V because it is so loaded with unresolved process issues. Besides, if the government is truly on a track toward tyranny, it telegraphs too many punches, and is painstakingly slow. Although we can’t divine it, authoritarianism has its own timetable to keep, you see.

Any state can spit in the federal government’s eye anytime it takes a notion, and can even get others states to stand next to it without having to stand on what looks like a decade-long ritual of getting 33 states to join it. I do agree that today a state has to bite off an especially large plug of tobacco before it can start spitting painfully since the federal government has a much greater (financial) stranglehold over the states than it did over South Carolina in 1828. Still, I’d like to see some dust kicked up once the states decide to take on Washington.

Since you may not know, I’m an analyst, not a constitutional scholar. But I am a lawyer and can tell a horse from a mule. My resume in analysis comes from some history dealing with communists of the Soviet variety, at the ground level. I’ve been on record for several years saying that this current regime has gone all-in. The Left, and the government establishment, the totality of it, will not simply surrender what they have spent fifty years in acquiring simply because some legislators come knocking on their door with a piece of paper in their hand.

It’s because of what might happen next, if that Capitol door is slammed shut, or worse, the application taken by the Congress to use as it wishes, that has always had me leaning a little in favor of this Article V process…because I’m almost certain none of the things the state legislators have been promised will happen, will in fact happen. Tortured logic? No, for what will they do then? Having thrown down a gauntlet, do they then just pick it back up, dust it off, and walk back home?

What might ensue could be shillelagh law or the threat of it, which delights me, for today that might be the only cure that will really work against this growing shadow of authoritarianism. I’ve never liked the idea of walking up to Capitol Hill with a writ in one hand without a rolled up newspaper in the other.

Some of you are being told the Congress can be circumvented. The language of Article V does not support this. The people are not well served, nor are the legislators, who are putting their reputations on the line, if they are made to believe that all they have to do is vote a resolution, then join with thirty-three others who do the same, and a Convention is automatically called, and they are the masters of it. Or the scope of it. Or the language of it.

It is not a slam dunk and it’s hard for me to believe that the Petitioners don’t already know this. And anyone who tells them otherwise is a false prophet. I have asked several times over the past few months, “What if Congress rejects the application?” I don’t get artful-dodging, or deflections. I get silence. You see, in the internet venues now used, no one is compelled to answer uncomfortable questions. Frederich Hayek had strong feelings about the

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journal-to-journal method of scholarly debate, for it had become an asset of the Left by the 1960s, and is why I strongly recommend face-to-face debates. They are more honest, for all to see, especially for legislators. These days you can find some who know they cannot answer certain direct questions, so will refuse to debate, e.g, Al Gore and Dr Dawkins refuse, each in their respective hoaxes.)

“Where’s your trigger?” I’ve asked. How do you compel a Congress already known not to be in harmony with our aspirations, or for that matter, the Government Printing Office, or the various agencies such as IRS and Treasury Department, to go along with say, your balanced budget amendment(s) unless they concede your authority? Who compels them? Who settles disputes? The Supreme Court, I assume, but have all the voting legislators been made aware that this may be a legal detour to their plans of several years? Silence.

Or, what happens if Congress instead accepts your application but then writes its own rules for the convention, and in the bi-partisan manner in which it’s famous for, throws open the convention? Did you know that Leftish money and strategy has been involved in this Article V movement longer than Mark Levine or Michael Farris? Did you know they have a math for this very exigency? Who on your current list of Petitioners are holding hands with the Left? Have you vetted them?

This is fertile field for “lies and damned lies” (Mark Twain). And as long as citizens are allowed only to read “debate journals,” silence is truly golden to the sellers of tainted beef. No question will be substantively answered.

The suggested “ease” of this process, once the states’ votes are cast is what causes me the greatest dis-ease. I’ve read some of the proponents’ articles, and they ring out almost like a Wilsonian enlistment drive in World War I, “Let’s go beat Kaiser Bill!” I can almost hear the marching band as the states march up to the doors of Congress. Only, and hear me, an Article V process is a grave deed, calling for a solemn mind and a grim jutted jaw, as one might when taking his best dog out to be put down. Not with a Hoorah! but a quivering lip. (My dad always did it with a pistol, never a vet, and like an Indian, he would speak to the pup for a long time before he pulled the trigger, thanking him for the time they had together.) It is this realm of sober reality you are entering here, for once this is done, things will never be as they were…ever again…so keep the champagne corked.

So, it’s the Petitioners who must not only make their case, but also answer honestly the counter-arguments rather than dismiss them out of hand, or worse, mock them…especially for the sake of the legislators who they have persuaded to climb out on that limb. So far all I have seen, beyond Levin’s book, instead of sound arguments, are boiler plate scriptures about turning back Big Government, set to martial music, with no mention of any of these “what-if’s.” They are more like brochures, glossy ads you might see for a house that just came on the market, highlighting all it attractive features, while leaving it up to the buyer to do his own due diligence as to what might may lay buried in the basement or the rafters.

Article V dissenters are not”deniers” to be mocked and ridiculed and dismissed as the Left has used hiding its climate hoax. And the more I hear that sort of language, the more I sense there are hoaxers involved in the dissemination of this message as well.

While the Petitioners are alleging the road is clear, and the bridge is in good repair, and it’s pedal to the metal, 70mph the whole way, the Respondents are urging, the road may be filled with roadblocks, the bridge may be out, and a more diligent speed might be better. Yes, they’d prefer you turn the car around, but at least be aware of what might lay ahead. Proceed with caution.


And should the Respondents be correct, and the road rougher than imagined, or the bridge out entirely, and the legislators being burned in

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effigy back in capital City, consider that some of the Petitioners may not be anywhere to be seen, instead sipping pina coladas on the beach in St Thomas, having “made their purse”. It is these tainted beef salesmen, these hoaxers, I want to split from the herd of honest brokers.

So I hope you can see the profit in a series of debates, state-by-state, legislature-by-legislature, with both Petitioners and Respondents present, while I get about my primary business. Hire a hall, as I like to say.

Stay tuned for Part II, Article V “Sellers of Tainted Beef” in a few days.

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