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Thursday, 30 January 2014 10:23

Convention of the States: Scholars Ignore History

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For as much as the “Convention of the States” (COS) supporters like to talk about constitutional articles with Roman numerals, there’s one they refuse to mention: Article XIII.

In 1787, the document known as the Articles of Confederation was the constitution of the United States. Its Article XIII mandated that regarding any changes to the Articles: “Nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

When the constitutional convention met in Philadelphia in May 1787, that legally binding and constitutional provision was ignored. From the moment Edmund Randolph stood and proposed what was known as the “Virginia Plan,” the Constitutional Convention of 1787 became a “runaway convention.”

There’s no debating that fact. There was a provision of the constitution prohibiting any changes to the Articles without unanimity. That provision was not only disregarded, but was replaced, eventually, by Article VII of the Constitution created at the convention.

Article VII of our current Constitution reads:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

That’s quite a bit different. With the approval of that new provision, the unanimity rule and the constitution were replaced.

Despite constant reassurances by the pro-Article V convention group, there is nothing that could prevent a “convention of the states” from going down that same road. 

Were we lucky (blessed) by the results of the runaway convention of 1787? Yes, undoubtedly. Would we be so lucky again? Not likely. As I’ve indicated in a previous article on the subject, there are scores of socialist organizations slavering at the thought of getting their hands on the Constitution and making it over into something we wouldn’t recognize. These groups have adopted Article V as the means to that end: an Article V convention of the states.

There is nothing in Article V limiting the power of a convention called under its authority. Think of the ramifications of a convention called to change the Constitution — a convention without legal limits on its power. 

Of course, the COS organizers claim that the convention they support would not create a new constitution.

That’s not the point. The point is that the COS could create a new constitution, just as the constitutional convention in Philadelphia did in 1787.

On that point, was the convention of 1787 called to consider a new constitution? No, it was called “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”

In other words, the convention was meant to be a limited convention, empowered for the very limited purpose of considering amendments to the Articles of Confederation that would help the country get out of the financial mess it was in in 1787.

Does that not sound precisely like the language used in COS literature? Yes. On its Frequently Asked Questions (FAQ) page, the COS states:

The federal government is spending this country into the ground.… It’s time American citizens took a stand and made a legitimate effort to curb the power … of the federal government.

Lastly, a final and very important point about Article XIII of the Articles of Confederation.

In its FAQ, the COS claims: "It [the Convention of the States] cannot throw out the Constitution because its authority is derived from the Constitution."

Two questions will reveal the fundamental errors with this statement and will explain why the COS promoters try to avoid at all costs mention of the Articles of Confederation, specifically Article XIII.

First, was the authority of the constitutional convention of 1787 derived from the constitution in effect when that convention was held in Philadelphia? Yes. The Continental Congress’ report calling for the Philadelphia convention specifically references the “provision in the Articles of Confederation & perpetual Union for making alterations therein.” Article XIII.

Second question: Did the convention in Philadelphia in 1787 “throw out the Constitution” in effect at that time and replace it with a new one, radically different from the one already in legal effect? Yes. The differences between the Articles of Confederation and the Constitution of 1787 are significant. Not the least of which was the method established for adopting those changes and endowing them with the force of law. What once required a unanimous vote, now required the approval of only 3/4 of the states.

While the push to hold a second constitutional convention is progressing in many states, there is yet time for concerned Americans with a better grasp of history than the scholars promoting the Convention of the States to speak up and prevent this convention from happening.

One final question: Can we afford to entrust the future of our Constitution to a group of people who make blatantly incorrect statements about the power of an Article V convention and the history behind the adoption of our current Constitution?

No.

 

Joe A. Wolverton, II, J.D. is a correspondent for The New American and travels frequently nationwide speaking on topics of nullification, the NDAA, the Second Amendment, and the surveillance state. He is the co-founder of Liberty Rising, an educational endeavor aimed at promoting and preserving the Constitution. Follow him on Twitter @TNAJoeWolverton and he can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

Related articles:

Article V: Con-Con or Nothing Is the Cry of This Cause Célèbre

Article V Group Ignores States' Complicity in Federal Power Grab

Article V Convention: Dangerous Precedent, Dangerous Loyalties

Convention of States and Article V: Tearing Up the Talking Points

Compact for America Proposal Could Increase Federal Power

Convention of the States: Wrong on History, Nullification

Repair vs. Restore: Why Constitution Doesn’t Need Article V Fix

In Defense of Con-Con, Meckler Chooses Ridicule Over Rebuttal

Socialists and Soros Fight for Article V Convention

14 comments

  • Comment Link Teri Wednesday, 26 February 2014 22:07 posted by Teri

    Mr Wolverton is so wrong! The State Legislatures are NOT the ones to ratify the final amendment that might come from any Convention of States and neither is the Congress. THE PEOPLE are the ones that will ratify it/them. THE PEOPLE. THE PEOPLE. THE PEOPLE. NOT Congress. NOT State Legislatures. THE PEOPLE. That means YOU AND ME. THAT is what Article V safeguards. WE THE PEOPLE and our Liberty and Freedom (those are two separate things, did you know?)

    And in agreement with other comments on other articles here, the 16th and 17th amendments destroyed some Constitutional safeguards, along with a couple other amendments. Those can be undone one day people wake up and learn what the Constitution is really about, as opposed to what public school and universities have taught it's supposedly about for the past 120 years. I think the biggest danger is that the Founder set up the Constitution and Bill of Rights so that the Federal Government had very limited (numbered/enumerated) powers, and ALL other powers were left to the States (where the Constitution points them out only) and to the People (all other powers, because all the powers rightly emerged from the People in the first place.) The States were intended to safeguard and protect their citizenry from the Federal Government, by 'appointing' those who sat in the State Legislatures. However, now those Lesgislators are elected the same way that our State Representatives are, meaning the 17th Amendment ENDED "Senate" (though maintained the name only) and created a second "House of Representatives". So now both our Senators and Representatives are beholden to people and corporations, no to the States. The Sates are no longer safe. That means We The People of the states are no longer safe from Federal intrusion. The 16th amendment did the same thing by removing the protective "ceiling" over our heads of "no direct taxation" to today where we are directly taxed, and special groups of people are taxed. Totally screwed up our nation! The Convention of States lies OUTSIDE all that. It puts the power back in the hands of the PEOPLE.

    Learn the TRUTH about the Convention of States here:
    http://conventionofstates.com/

    Learn the TRUTH about the Constitution in a FREE online class here:
    http://www.nccs.net/

  • Comment Link Robert Monday, 03 February 2014 13:37 posted by Robert

    Yet Bob,
    Every state did call for a ratifying convention and in doing so met the unanimity requirement.
    The equivalent today would be to have the Convention of States propose a new method of ratification and to then have 38 states approve of the new method.

  • Comment Link Bob Donohoo Sunday, 02 February 2014 13:10 posted by Bob Donohoo

    Robert says, "Calling of a ratifying convention was an act of approving the new method."

    Robert - please understand why this gives me pause. Can you imagine if such a thing were to happen today?

    I can see the campaign slogan now, "A new method for new amendments."

    Risky ... very risky ...

  • Comment Link Robert Saturday, 01 February 2014 13:12 posted by Robert

    Bob Donohoo,
    It is actually quite a trick to imply the legislatures called for conventions without having an intention of being bound by the convention.
    What other purpose would a state's ratifying convention have served?
    They could have refused to call a convention.
    They could have called a convention with a mandate other than ratification.
    By calling for a ratification convention they could only have meant to abide by the results.
    The fact that they did abide by the result, without exception, makes clear their intent was to have a convention, according to the terms contained in Article VII of the new document and to have the result be binding upon their state.

    Calling of a ratifying convention was an act of approving the new method.

  • Comment Link Dan McGonigle Saturday, 01 February 2014 10:06 posted by Dan McGonigle

    ". . the all-important question remains to be answered by the people in “the liberty movement” who are proposing a constitutional convention: “Exactly how are the new amendments to be enforced . ?"

    Constitutional enforcement "actions can be taken right now, without the need to ratify any new constitutional amendment, simply by the passage of a single statute in each State (if the matter is handled competently) . . why would any prudent person want to eschew them in favor of a highly problematic program aimed at a new constitutional convention?"

    ENFORCEMENT, NOT AMENDMENT, IS THE ANSWER
    By Dr. Edwin Vieira, Jr., Ph.D., J.D.
    September 24, 2013
    http://www.newswithviews.com/Vieira/edwin261.htm

  • Comment Link Bob Donohoo Friday, 31 January 2014 17:10 posted by Bob Donohoo

    Will, Robert - if you want to hold a convention and get your amendments ratified you may want to follow the advice of some of the delegates to the 1787 convention. You might want to sneak it in fast and surprise delegates before they get a chance to fully digest your proposals.

    As recorded during the 1987 Convention:

    "Mr. Govr. Morris & Mr. Pinkney then moved to amend the art: so as to read
    "This Constitution shall be laid before the U.S. in Congress assembled; and it is the opinion of this Convention that it should afterwards be submitted to a Convention chosen in each State, in order to receive the ratification of such Convention: to which end the several Legislatures ought to provide for the calling Conventions within their respective States as speedily as circumstances will permit". - Mr. Govr. Morris said that his object was to impress on stronger terms the necessity of calling Conventions in order to prevent enemies to the plan, from giving it the go by. When it first appears, with the sanction of the Convention, the people will be favorable to it. By degrees the State officers, & those interested in the State govts will intrigue & turn the popular current against it.
    Mr. L-Martin believed Mr. Morris to be right, that after a while the people will be agst. it. but for a different reason from that alledged. He believe they would not ratify it unless hurried into it by surprize."

    Will, Robert - these gentlemen were neither demi-gods or crooks. Instead, they were men, good men, but still men...

  • Comment Link Bob Donohoo Friday, 31 January 2014 16:45 posted by Bob Donohoo

    Will said, " The Convention decided that there still needed to be a minimum size union to truly be a perpetual and "more perfect" union. Nine was the number."

    Not quite, Will. You might want to try and read the comments of the delegates to the Convention itself to see why they chose the number 9. They were all over the map. They sure didn't use the word "perpetual." They wanted to end the current government and start a whole new one.

    Mr. Wilson thought a simple majority of 7 would do.
    Mr Sherman thought they should use 10 because it was closer to what was required in the articles, 13.
    Mr. Randolph said that 9 was a "respectable majority."
    Mr. Madison went so far as to remark, "if the blank should be filled with "seven" eight, or "nine" - the Constitution as it stands might be put in force over the whole body of the people. tho' less than a majority of them should ratify it."

    Will, Robert, promote the idea of holding an Article V Convention if you will but quit revising history in an attempt to minimize the risks that such conventions hold.

  • Comment Link Bob Donohoo Friday, 31 January 2014 16:22 posted by Bob Donohoo

    Robert Said: "The state legislatures unanimously called for ratifying conventions. Thus, each state approved of the new method."

    It's quit the magicians trick to say that a vote to hold a state convention is the same thing as ratifying the Articles of Confederation.

    If a convention is held today I can't wait to see how the apologists explain away their antics ...

  • Comment Link Robert Friday, 31 January 2014 10:52 posted by Robert

    As to the idea that only "amendments" could be considered proper instead of the new constitution that ignores the reality of the situation. First, they were asked to render it "adequate." Whether you approve or not, these men whom so many Article V opponents deify, believed in the end the AoC could not be so rendered without a major restructuring. Part of the reason for that conclusion was their belief that a group of amendments would be needed to do the job and if the amendments were only adopted piecemeal the result would be a disaster. While I abhor the Omnibus legislation that passes today as much as anybody, the method they used was essentially an "omnibus" amendment. Done this way because only a holistic, balanced approach that addressed the concerns of each state would have ever been ratified. Game this a little and you will see this is true. Would small states have accepted proportional representation? NO. Would southern states have accepted federal tariffs? NO. If you examine the changes between the AoC and the constitution you will see none would have received unanimous ratification except as coupled with other changes. It was a give and take.

    BUT, seriously, these men who met, were they demi-gods the likes of which we shall never see again? Or were they crooks and criminals who disregarded the laws and forced a new constitution on an unwilling nation?

  • Comment Link Robert Friday, 31 January 2014 10:52 posted by Robert

    'From the moment Edmund Randolph stood and proposed what was known as the “Virginia Plan,” the Constitutional Convention of 1787 became a “runaway convention.”'
    This is actually an absurd statement. You are implying that to even propose a change required unanimity. The "Virginia Plan" did not change the Articles by its mere proposal.
    Nor did Article VII violate anything by its inclusion in the solution "PROPOSED." It was only a proposal.

    The delegates to the convention "proposed" changes and sent those proposed changes to congress. They may have been more extravagant changes than many had expected but even so it was still only a proposal.
    Congress, as required by Article VIII of the AoC, considered the constitution as proposed, approved of it and sent it out to the states for ratification.
    The state legislatures unanimously called for ratifying conventions. Thus, each state approved of the new method. The unanimity requirement was met. No state was forced to have a convention. Everybody new that any state could refuse to have a convention, or that convention could refuse to ratify. If a state had refused they would not have been part of the union. The end.

  • Comment Link Will Friday, 31 January 2014 08:01 posted by Will

    Bob,

    In answer to your question about acceding. Here's a little historical background.

    Three states traditionally stayed out of several of the colonial resolutions of sorts. So they expected some states to stay out. They were willing to continue without them. The Convention decided that there still needed to be a minimum size union to truly be a perpetual and "more perfect" union. Nine was the number.

    The remaining states had to decide for themselves after longer consideration.

    What I'd expect to see is that if a "runaway" convention were to occur again, and worst case scenario, the current Constitution is abolished and they establish a totalitarian government in its stead, there would still be the requirement that each state accept it.

    Whether they put a provision in there or not, a fundamental change in how our government runs would necessitate such an adoption. They can't have it both ways.

    1) Either we are bound by the current Constitutional requirements and would treat it like a series of amendments requiring a 3/4 ratification by state legislatures.

    OR

    2) It would be a brand new document and each state could then opt out of the union even if it were just a single state.

    Unfortunately, depending on the numbers, option 2 would end up leading to a civil war. In the end, when power cannot be shared by peaceful means, it is taken by violent means.

    As for option 1, if we're looking at red v blue, neither side has it. But they do have big government v. small government.

  • Comment Link Will Friday, 31 January 2014 07:48 posted by Will

    Let me take a slight side track to the Declaration. "But when a long train of abuses...it is their right...to throw off such government and provide new guards..."

    What this means to me is that we have to ask ourselves a question:

    Is the level of tyranny by a few we currently have better than the tyranny by the many we'd experience under anarchy?

    If that is the case, it is worth the risk. If not, I'd point to the statement prior to the quote I just mentioned above.

    "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."

  • Comment Link Bob Donohoo Thursday, 30 January 2014 11:39 posted by Bob Donohoo

    This last weekend the CoS folks came to Oklahoma and basically said that the 1787 Convention was working "outside" the Articles of Confederation. The CoS folks seemed to think this was acceptable.

    If it happened again would they still think it is acceptable?

    The CoS folks speak about precedence a lot. Well, precedence established!!

    Does anyone believe the statists of today will not try and use the same argument?

  • Comment Link Bob Donohoo Thursday, 30 January 2014 11:32 posted by Bob Donohoo

    The minutes of the 1987 Philadelphia Convention record this remark by Mr. Wilson, a delegate from Pennsylvania:

    "It is possible that not all the states, nay, that not even a majority, will immediately come into the measure, but such as do ratify it will be immediately bound by it, and others as they may from time to time accede to it."

    Keeping with the spirit of what Mr. Wilson said the first 9 states ratified the new Constitution. The remaining 4 just acceded to it.

    Will we allow ourselves to be manipulated again? Will we accede?

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