The Article V Convention Conundrum

(Note: Early next year, the Virginia Assembly will take up the Article V issue, and as things now stand, the pro-Art V folks, the Movers, will be speaking directly to the General Assembly, while the dissenters are being shut out again, with no public forum. Publius Huldah is trying to organize a debate in the Richmond area. I’d appreciate it if you’d pass these comments on to anyone you know, pro or con Art V, who might bring more fairness into this process.)

The Tea Party movement began as an “I’m mad as hell and I’m not going to take this anymore” protest against government gone, well, mad.

It all started in 2010 with Obamacare, when “you had to vote for it in order to know what was in it”, and was deemed by Harry Reid not to be a tax, requiring no House vote. O’care stayed that way until John Roberts deemed it was a tax in 2012, only he didn’t send it back to the new House we had placed in power for a proper, constitutional, vote. The 2010 mad-as-hell citizens were dubbed “Tea Party”, although they never dumped anything overboard except a few Democrat congressmen.

But the voting booth was as far as they took their protest; to vote out a bad House of Representatives and replace it with a better one, which, as its first act, pledged to read every piece of legislation before voting on it. Never again, John Boehner said. Still, with only one chamber in our grasp, we stayed mad as hell, and seethed, because nothing we tried could ever get to Obama’s desk.

So Obama got even bolder, practicing the old axiom that when a man’s down, kick him. So, the constitutional knives in America’s back kept coming. Boy were we mad. But Shazzam! , out of the clear blue, Obama was re-elected. Worse, we were told it was our fault, even though only 200 people showed up to see Obama stand side by side with Stevie Wonder in Cleveland the day before the election, while thousands of Tea Partiers had to hike two miles to see Romney speak in Colorado. Pollsters said “we” didn’t show up to vote for Romney. That’s when we knew the fix was in.

Refreshed from an undeserved win, in 2013 Obama began to really go after the Constitution, using a Department of Justice “finding” that yes, he could assassinate American citizens (and their children) on foreign soil, without due process of law. He also told several agencies to ignore current law, (DHS, ICE), and write their own rules (EPA) and even sicced another agency (IRS) on citizens that disagreed with his policies. So we got even more madder than hell,..and did a reprise vote in 2014, only this time with a much louder message. We sent any wobblies in the Republican Party a loud-and-clear message that we meant business, and to put an end to this.  Now, by God!

So here we are, still three weeks away from that new Congress even being sworn in, and we’re already pulling another constitutional knife out of our backs, with a 1600 -page bill just passed by our House, in which the Speaker of the House, our Speaker of the House, said,”we have to pass this bill in order to know what’s in it.”

The Article V Movement

What I’m pointing out here is the mood of the people, who are  coming to a conclusion some of us have known for some time: that there is nothing, nothing, the people can do through normal constitutional process (the ballot box), that will cause the inside-the-beltway party establishments to do the people’s bidding; and  slow down this runaway train, much less stop it or turn it around..

Every patriot knows it’s time for extraordinary, outside-the-box thinking and action….and the Article V solution seemed to present it, for it states right there in clear language:

The Congress…shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a convention for prosing Amendments…..(Pay close attention to the language and the sentence structure as to the respective rolls of the states and the Congress.)

That will fix their wagons, the patriots believe, peering through their madder-than-hell purple haze.

Surely constitutional purists can understand why patriots are so hungry for anything that will bring Congress and the government to heel. (Personally, what has bothered me, especially the past two years, has been the relative docility of these angry voters. I would have expected at least a few rats set loose from the Senate gallery, or a nest of wasps under the Speaker’s podium, or some overturned trash cans in the Rayburn Building. And squadrons of people swatting flies on the Capitol steps with rolled up newspapers.)

Well, right on cue, into the breach steps several conservatives of varying degree of celebrity and constitutional scholarship who have come up with a sure-fire plan to salve  the wounds of the madder-than-hell citizenry. Highest among these patriots is Mark Levin whose 2013 bestseller, The Liberty Amendments began this gold rush toward organizing the states, 34 of them to be precise, to call for a constitutional convention under Article V of the U S Constitution (stated above). So far, no one’s saying how many states have actually signed on, and the Mover’s are inflating success like Army recruiters in the Bowery during the Civil War, when they were paid a bounty..

But, really, who isn’t in favor of the states marching up to the doors of Congress with a writ in their hand? I know I am…as long as they  carry a cutlass in the other.

The question is how? The Art V Movers make it sound so easy. Just get 34 states to sign up, then let Congress know you want a convention. No muss, no fuss.. Well actually, it’s more complicated, and I’m not sure the Con-Con movers are all on the same page about how to iron out these complications, except to smear the people who keep bringing them up. (There’s an old law of the carnival business involved here, and that is that you never let a bystander come between a carny barker and his marks.)

For instance, there has been a sales pitch about limiting the convention to only one issue (at first) and that first thing would be a Balanced Budget Amendment. Again, who’s not in favor of that….if that’s what the language of the proposed amendment actually says? I’ve read articles that make good arguments that some of that proposed language is antithetical to the originals purpose of the Constitution. Now I’m sure Mr Levin didn’t have that it in mind, at least not on purpose, but the counter-argument is persuasive enough that he should air out (iron out) the differences face-to-face, in a public forum, for all to hear. It’s not a good thing to let something like that linger. It justifies more than a pooh-pooh and a shrug of the shoulders. But the Movers refuse to discuss this, or any other raised question, in public or in a collegial manner.

(This level of adversarial bad manners has always bothered me, considering the importance of the process, for it basically seems to be that the Movers want the states to approve a plan in which only one side of the proposition is known to them, sort of like the used car dealer who won’t give a CarFax report. There’s an element of hucksterism in these types of sales pitches, and in matters as serious as Article V, I simply don’t like.

Still, to date, smear and shut-out rules apply for anyone who raises questions or objections. We never get to see a side-by-side Q & A over these issues, because the Movers won’t appear with them. You can read their argument on one website, and the counter arguments on another, a practice Frederick Hayek lamented before he died, because it always suited the Left to debate in that fashion, for they never had to fear being exposed  as wrong, or worse, liars, to their target audience. (Alinsky tactics.) Shutting the opposition out suggests all these people may not be honest brokers in this issue.

Also, Article V doesn’t lay out that the 34 states can put a limitation on the convention agenda. Read the language.  While I agree it makes sense, there is no constitutional roadmap here, for this has never been tried before. But not to worry, the Movers say, the outcome will be as we have told you it would be, with 100% certainty. End of discussion, and oh, by the way, anyone who says we’re wrong here are hick rubes, when it comes to the Constitution and not suitable to be heard in any discussion about the Constitution.

Well, those hick rubes actually have a fine pedigree in constitutional scholarship, including Phyllis Schlafley, Joe Wolverton, and Publius Huldah, and a few internet sites that have published their arguments, Freedom Outpost and Grumpy Elder the best of the independents. In fact, the only hick rube I can find in this debate is me. But even I can tell a horse from a mule, and on that basis I have always defended people who’s constitutional education ends with being able to tell just that difference, for I defy you, by reading the Art V language I just quoted above, to find words that grant the 34 states the sort of latitude the Movers of Article V are claiming….with 100% certainty. There’s way too many maybe’s to be a lead-pipe cinch.

Think about it, the states are being sold on the idea that they can march right up to Congress, bang on the door, holding  an “application” in their hand, on behalf of the very same people, the mad as hell Tea Parties, Boehner and McConnell hate more than Satan hates Jesus…and for almost the same reasons, with the expectation that John and Mitch will drop whatever they are doing, and offer everyone to come in for a round of tea and cakes.

What’s to stop Congress from slamming the door in their faces?

The article says the “Congress shall call…” but who’s to make them? If the states sue, can they win? Will the courts even hear it? For under a doctrine I’m sure most of you have never heard of, called the Political Question Doctrine, from a 1962 Supreme Court case, Beck v Carr.

“The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political … then the court will refuse to hear that case. It will claim that it doesn’t have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.” John Finn, 2006, based on Baker v Carr (1962)

But wait, that’s only if Congress wants to play nice. If Congress is in an especially vindictive  mood, which they already seem to be, especially since Ted Cruz yelled “Ouch” when they kicked him over his outrage about Obama’s immigration order, it can go ahead and call the convention, as requested, only open up the floor to any and all amendments, including trashing the original Constitution as we know it and replacing it with language similar to say, the Soviet Constitution in 1966, which was like ours except for a subtle juxtaposition of words, instead of guaranteeing the (God-given) right to free speech, assembly and religion, that “the Supreme Soviet grants the right to the people to freely assemble, etc”. Mighty big difference, huh?  Hawaii has already approved a draft constitution in which Obamacare is included in its text, running the size of their Constitution from 6 pages to just over 6000. Can you find anywhere in the Art V language that the petitioning states can control the agenda of the convention?

There’s a lot of maybe’s in what is being sold as a lead-pipe cinch. So, are you mad-as-hell patriots really ready for any of these scenarios to play out?…for the final outcome, victory or defeat, will depend entirely on the way you react, if you walk up to Congress’ door unprepared for a real, knock-down drag-out constitutional crisis, which you must be willing to fight and win.

We’re all being played here. The story is that no one is being told the whole story. Not the people. Not the legislators. Opponents, and there are some notable ones, are being pooh-poohed, and even lied about, even booed off the stage by plants. Only people who have something to hide do this sort of thing. These are not colleagues-in-arms with a different point of view.  These are all lawyers egging this on like a fifth grade playground fight, only are never anywhere to be seen when the sleeves get rolled up, punches swung, and shillelaghs raised over the head. I don’t know any of these Movers personally, so can’t speak to individual motives, but as I said, I can tell a horse from a mule, and vanity and ambition can always be a powerful anti-constitutional elixir. And it never hurts to follow the money.

There s no call for this sort of behavior between good people, and that is what galls me most.

There is a legitimate debate here. So ask for it, legislators. For the sake of your reputations, careers…and your states’ honor, demand it. Hear the whole argument. And for God’s sake, never lose sight of the risk to the Constitution, that grand lady, for she is at greater risk than you can imagine, for indeed, many of these proposals, in future years, under different legal regimes (think Eric Holder) could easily re-construe the language to become Constitutional language validating almost unlimited powers to the government, especially to tax…and quite frankly, many states, including red states, already wearing Washington’s debt dog-collar, would eagerly join if they could participate in the windfall.

What Con-Con proponents are describing is a path that seems as easy as to walk as through a field of wildflowers, while in truth, to get from here to there requires at least some knowledge of bushwhacking with a machete, and a deep understanding in orienteering….with over-the-ankle boots recommended for snakes.

In other words, if you march up to Congress with that application in your hand, have your sabers drawn, and a spit-in-your eye game face, then you may well get their attention.

In fact, a call for a convention with the threat that you have no intention of walking away until/unless you get satisfaction may be just what the doctor ordered, which is why I keep trying to reform this Art V movement into something with teeth.

We are told today what will happen with 100%, ontological certitude, but unless Movers are at least willing to put up a little guaranty, with at least 75:1 odds to cover this 100% certainty, (to insure their good will this sum to be held by my friends Vinnie and Augie, honest stewards both), you should deem their assurances suspect, on the same order of patent medicine cures for gout or carnival side bets on ring toss. To be clear, Vegas oddsmakers would speak to the very people Movers are denying a forum before laying any odds, and would likely go no better than 5:4, either way.

But about the Grand Lady, the Constitution.

Now, since these are all possibilities, and not likelihoods, my first inclination has been to say let’s go ahead and roll the dice and try it, but not so much with an Art V convention as the end game, but a sterner expression of state power. Since we all know where the Left intends to take our government, and the establishment and established process has no intention of ever turning that around, I’m for dealing with this problem now, sooner than later, or have you looked at the constitutional sensibilities of your grandchildren lately?

And there are other things to consider.

The Constitution of the United States is as close to a secular Bible as you can find. But we are perhaps the last generation who will view it this way. In the final analysis, the Constitution, as she stands, blooded and bullied, yet intact and as beautiful as the day she was born, is not worth the risk of showering her with such iffy language. She is already being ignored, circumvented, even discarded, with some thought to being shredded. But she remains intact.

To then change it with nebulous words that can make her, some day, the concubine of tyrants, with nothing left for the people to fall back on; no hope, no respite, is more then we can allow. In my view the Article V proponents have not overcome the burden of proof that she will be protected, and remain chaste, or convinced me she is even a central concern in their thinking, except as a launching platform.

If given the choice between putting our Constitution at risk, and walking up to the doors of Congress with both an application and a drawn sabre, I’ll take the drawn sword every time, for that could lead America to the real, rolled-up-sleeve end we’d like to see for our country in our lifetime. Let’s finish this.

If you are interested, read this, The Final Word on Nullification is there is no Final Word, and learn what can really be done with this mad-as-hell enthusiasm.


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