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Friday, 31 January 2014 09:41

Convention of the States: Wrong on History, Nullification

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Sometimes it seems that many of the “scholars” tying their names and reputations to the Convention of the States (COS) movement seem to make misstatements that call into question their credibility.

For example, the following bit of “history” is recounted on the COS FAQ page:

This claim that Congress gets to choose the delegates also goes against common sense. Just because one party "calls" a convention, doesn't it mean it gets to choose the delegates for the other parties. Think about it. Virginia called the Philadelphia Convention of 1787. Did it get to choose the delegates for Massachusetts? Of course not. Massachusetts did. Each state chooses its own delegates; it doesn't matter who calls the convention. This is Agency law 101 and basic common sense.  

Let’s look closely at the details of this paragraph.

First, who called the Philadelphia Convention of 1787? Virginia, as the COS claims? No! The Constitutional Convention of 1787 was called by the Continental Congress on February 21, 1787.

Not only did Virginia not call the Philadelphia Convention, but the report from the Continental Congress calling for states to send delegates to it highlights the role played by New York, not the Old Dominion.

So, on their website, rather than ignore a bit of history that doesn’t fit their purposes, the COS misrepresents the historical record, perhaps hoping people would not take the time to research the subject for themselves.

Such a revision may seem minor, but if an Article V convention was such a good idea, one as safe and supported by history as the COS scholars say, why would they need to fiddle with the historical record at all?

Furthermore, does it seem wise or safe to trust the care of something as potentially powerful as a constitutional convention to a group whose leadership can’t get right such basic facts of American history, particularly the history of the Constitution Convention itself?

Next, despite its citation of principles of “Agency law 101,” the COS movement’s attitude toward nullification ignores basic tenets of the law of agency that would have been taught in that fictional class.

The law of agency applies when one party gives another party legal authority to act on the first party’s behalf. The first party is called the principal and the second party is called the agent. The principal may grant the agent as much or as little authority as suits his purpose. That is to say, by simply giving an agent certain powers, that agent is not authorized to act outside of that defined sphere of authority. 

Upon its ratification, the states, as principals, gave limited power to the central government to act as their agent in certain matters of common concern: defense, taxation, interstate commerce, etc.

The authority of the agent — in this case the federal government — is derived from the agreement that created the principal/agent relationship. Whether the agent is lawfully acting on behalf of the principal is a question of fact. The agent may legally bind the principal only insofar as its actions lie within the contractual boundaries of its power. Should the agent exceed the scope of its authority, not only is the principal not held accountable for those acts, but the breaching agent is legally liable to the principal (and any affected third parties who acted in reliance on the agent’s authority) for that breach.

Under the law of agency, the principal may revoke the agent’s authority at will. It would be unreasonable to oblige the principals to honor promises of an agent acting outside the boundaries of its authority as set out in the document that created the agency in the first place.

Imagine the chaos that would be created if principals were legally bound by the acts of an agent that “went rogue” and acted prejudicially to the interests of the principals from whom he derived any power in the first place. It is a fundamental tenet of the law of agency that the agent may lawfully act only for the benefit of the principal.

Inexplicably, this is the position taken by COS when they argue that the states may not nullify unconstitutional federal acts and refuse to be bound by an agent that repeatedly exceeds its authority. Not only does this agent (the federal government) habitually breach the agency contract, but it does so in a manner that irreparably harms the principal (the states).

Finally, let's use an analogy to put a finer point on the agency angle specifically and the need to alter the Constitution generally.

Imagine that a person agrees with a contractor to build a house. The two parties meet and sign off on a contract for the building of the house which includes a blueprint of the home. The contractor begins work, but after a while decides to start building wings on the house that weren’t provided for in the contract and the blueprint and starts running up enormous debts to build these extra-contractual additions.

When the future homeowner visits the building site, what should his reaction be? Should he decide that he should go back to the contract and change parts of it, adding provisions reiterating the general contractor’s restrictions and responsibilities?

Would a contractor with such obvious disregard for contractual limits on his power be likely to suddenly begin being bound by the new restrictions? Not likely.

This is exactly what the COS people are promising, though. They state that even though the federal government “is spending this country into the ground,” the best way to stop this abuse of power is to add new restrictions to those already included in the original contract (the Constitution) that forbid this type of overreach. 

Those of us opposing an Article V convention, however, believe that the best way to stop the federal government’s constant disregard of constitutional limits on its power is for states (the principals) to enforce those limits. 

We realize that the federal government will treat any new amendment restricting its authority the same way they treat those already in the contract.

 

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: Scholars Ignore History

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

9 comments

  • Comment Link Teri Wednesday, 26 February 2014 22:04 posted by Teri

    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 Bruce Tuesday, 04 February 2014 11:38 posted by Bruce

    When it comes right down to it, a Convention, most probably, will never be held. If all of the requirements were fulfilled and a meeting place/date established, it would be outlawed by decree of the Potentate. Martial Law would be declared to enforce this not happening. People, enmass, would be herded to the appropriate FEMA camps for "re-education".

    Under NORMAL circumstances a Convention would be the proper course of action. I personally believe it's way too late for that to happen.

  • Comment Link Jon Roland Tuesday, 04 February 2014 11:19 posted by Jon Roland

    Article V convention proposals misguided

    We have recently seen a flurry of movements to convene an Article V convention to propose amendments to the U.S. Constitution (links at the end). They are driven by the realization that only amendments might reverse wrong directions taken by the federal government, and because many of those amendments would need to reduce the powers claimed by Congress, the development of proposed amendments is not something we can expect Congress to do. They are right about both points, and we have developed our own proposed amendments, but we also offer a far better strategy for getting such amendments adopted and implemented.

    Such movements are not new. There have been many in the past. They've all failed, because they've all made the same few mistakes, are making the same mistakes again, and seem unable to learn from those mistakes. Here are the common mistakes:

    1. They underestimate the difficulty of composing sound amendments. Except for the first ten, the Bill of Rights, almost all that have been proposed or adopted have been sloppily written and did not work out as intended. Recent proposals by most reform groups are even worse.
    2. They imagine an Article V convention will be composed of persons who can and will compose sound amendments. There are probably less than 200 persons alive with the skills to compose sound amendments, they don't agree on any, and none of them would be delegates at any Article V convention.
    3. They ignore the careful preparatory work needed to develop sound amendments by teams of experts meeting to hammer them out with extensive public discussion. We do need conventions, but not a comprehensive Article V convention. We need to assemble as many of those constitutional amendment experts as we can to develop proposals for reversing specific court precedents, probably separate conventions for each wrong precedent.
    4. They seek a few sweeping amendments that will reform everything, when the only thing can can work are amendments narrowly tailored to overturn specific lines of court precedents. Because amendments are so difficult to get ratified, they seek to do too much with too few, generally between one and ten. That won't work. Broad amendments would have to be written in broad language that would have the same kind of ambiguities that have allowed the misinterpretations to which we object. The Constitution needs greater specificity, and if that takes more than 100 amendments, then that is was we need to develop and ratify.

    Our proposals avoid all these mistakes, yet the various movement proponents seem unable to grasp why ours is the proper approach.

  • Comment Link Bob Donohoo Sunday, 02 February 2014 11:48 posted by Bob Donohoo

    Dennis said, "I see our federal government as America's number one problem."

    This statement is revealing. As I see it America's number one problem is a general public that is comfortable with the "bread and circus" of our day and largely disengaged in the political process. This environment allows for a few powerful, well funded, and greedy people to use and manipulate the instruments of government for their own pleasure.

    These same greedy folks will try and manipulate the Article V Convention process and the Nullification process as they do the rest of our systems today. Nullification simply comes with less risks.

    The ONLY real answer is for the general public to get educated on the source of the REAL problem and be more engaged in the solution.

  • Comment Link Dennis Sunday, 02 February 2014 05:45 posted by Dennis

    Mr. Wolverton,

    I maintain that your derogatory address of the people that support CoS does not provide you the traction that you desire. These are people with whom you share ideology, to a high degree. There is no reason to deride them/us, on a point with which we disagree. We have much in common.

    I simply forward the argument that nullification is just not the proper tool for our situation. It is simply too late. The effort would be akin to herding cats. If we were 60 years in the past, then nullification might be a viable tool. We simply spent too much time trusting the "agent", while we were attending to our own individual self interests.

    Mr. Wolverton you put much stock in the ability and wisdom of the framers of our Constitution. Can you explain then, why Article V was provided?

    Do you believe that we should have voter ID? I do. How can we implement that? Nullification will not do that when we've a SCOTUS that performs nullification from the other direction - as you are suggesting will happen to a CoS - it is already happening.

    Again, I am not against nullification. Go for it. I will support it; however, it is a bit like cleaning out a grain elevator with a teaspoon. Maybe it is a matter of perception. Maybe you do not perceive the problem with our federal government to be as bad as those who support a CoS do. I see our federal government as America's number one problem.

  • Comment Link Bill McNally Saturday, 01 February 2014 05:53 posted by Bill McNally

    Sounds like the CoS are revisionist historians! Remember what happened in 1978 - Congress passed Public Law 95-435 Section 7 states: "Beginning with fiscal year 1981, the total budget outlays of the Federal Government shall not exceed its receipts."

  • Comment Link Bob Donohoo Friday, 31 January 2014 20:19 posted by Bob Donohoo

    Teri says, "Congress has ignored its constitutionally mandated duty"

    This comment brings up another point. Why should we spend years of time and work just to add another amendment that Congress can simply ignore? If Congress were to follow the Constitution as is today spending would be reduced by such a great amount we would not even be discussing a Balanced Budget Amendment.

    If the Balanced Budget Amendment gets added all that is needed to put it to rest is for the U.S. Supreme Court to redefine the word "debt." This may sound like a stretch but that is exactly what happened to Oklahoma's Constitutionally mandated balanced budget requirement. Oklahoma has assumed tens of billions of dollars in debt after the Oklahoma Supreme Court has ruled that not debt is not debt.

    All these games in government will continued to be played until we the people rise up, get educated on the real problems, and expect our constitutions to be followed by those we elect or we vote them out. When citizens require their states to push back on an over reaching federal government through nullification our elected officials will either respond or get voted out. This takes an informed and involved electorate.

    Until then, amendment added, amendment ignored, tyranny grows ...

  • Comment Link Teri Friday, 31 January 2014 18:23 posted by Teri

    This is not even a logical article, and none of it "proves" that the Article V State Convention (Not a Constitutional Convention) should not be held.

    Article V of the United States Constitution provides that Congress, "on the application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments...". The Founding Fathers of our nation recognized the importance of providing this means by which the citizens of our country could initiate amendments to change and/or clarify the Constitution; the fundamental document which they intended to be not only the blueprint for our federal system but also "the supreme Law of the Land".

    The Founding Fathers described the obligation of Congress to call an Article V Convention as "peremptory". Alexander Hamilton, author of the final language in Article V, wrote in Federalist 85:
    "In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing THIRTEEN STATES at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged "on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

    If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object."

    Despite the fact that 49 of all 50 state legislatures have submitted 400 (or more) applications (far in excess of the two-thirds requirement) requesting a convention call, Congress has ignored its constitutionally mandated duty. Some Americans fear a convention. This fear, based upon half-truths, myths and outright false hoods, helps to justify the congressional veto of direct constitutional text and denies the people their right to amend the Constitution without government interference or oversight. They say that such a gathering could become a "runaway" convention -- re-writing or over-turning parts or all of the Constitution. They ignore the fact that the Framers also provided a safety mechanism to prevent such a fiasco: all amendments proposed by the convention must be ratified by three-quarters of the states before they become effective. There is no danger that radicals on either side of the political spectrum could bring about such an outcome.

    Not all in authority have opposed a convention however. President Abraham Lincoln in his first inaugural address, March 4, 1861 said:

    "Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself..."

    "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. I can not be ignorant of the fact that many worthy and patriotic citizens are desirous to have the National Constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it. I will venture to add that to me the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept of refuse."

    President Dwight D. Eisenhower also supported an Article V Convention saying:

    "Through their state legislatures and without regard to the federal government, the people can demand a convention to propose amendments that can and will reverse any trends they see as fatal to true representative government."

    Source for above quotes: http://www.article-5.org/file.php/1/Articles/TheFrontPage_TheWholePage.htm

    The Article V State Convention most certainly can take place and be safe from the negative affects of a run-away Federal Government. The Founder FIGURED this in to the system, knowing all too well that human nature would arrive us at this point one day. This is the last-ditch effort the Constitution/Amendments offer us. The last 'safety valve' to keep our freedoms and liberties and get our nation back on track.

    Go to that website and educate yourself more on it. Everyone needs to do that if we want our nation to be saved. We stand at the brink of ruination. Nothing we have done so far has done any good whatsoever, and that won't change until We The People revoke all the previously given power to our "agents", and put in new agents who understand better what their role is.

  • Comment Link Bob Donohoo Friday, 31 January 2014 15:59 posted by Bob Donohoo

    When the CoS folks were in Oklahoma last week they explained that the 1787 Convention was operating "outside" the Articles of Confederation. I suppose this means that the agent was not accountable to the principles or the contract all the principles agreed to some 15 years earlier.

    I wonder if this could happen again?

    If so, would the CoS folks be the first to give them a pass?

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