A response to 6 MYTHS ABOUT AN ARTICLE V CONVENTION by Michael Farris & Rita M. Dunaway. Part 1 of 3. Recently, Mr. Farris (and Rita Dunaway) had an article about what they called 6 popular myths surrounding an Article V Convention [1]. Here, I break down their article and show where they answer these so-called myths with falsehoods to support their Convention of States. Falsehood #1. An Article V Convention (or what they call a Convention of States) is not a Constitutional Convention. In order to make this falsehood sound plausible, they try to redefine what a Constitutional Convention (Con Con) actually is. A Constitutional Convention has never been just a convention that frames or writes a new constitution. The traditional meaning, which dates back at least until the 1860s (when Judge John A. Jameson wrote A Treatise on Constitutional Conventions [2]) is one that not only frames or writes, but also includes conventions that revise and amend. This is the legal definition that still exist today in Blacks Law Dictionary [3]. They try to make you believe that a Con Con HAS to scrap and write a new constitution. But a constitution will never contain a clause for its own abolishment. Now our Founders, in their wisdom, did include in some of our constitutions, including the Federal one, a way to alter it without abolishing it [4]. In the Federal Constitution, this is Article V [5]. But this does not deminish the natural right of the people as espoused in the Declaration of Independence, to alter and abolish, and establish a new. [6] Then they add to the deceit. They claim that the Constitutions drafters specifically declined to provide for another general constitutional convention. Some drafters wanted the ratifying conventions to be able to offer amendments before the ratification the Constitution [7]. And one, Mr. Randolph, wanted to have a second convention with plenary power to not only discuss whatever amendments proposed during the ratifying conventions, but to accept whatever changes it would deem necessary and BIND the States to said changes [8]. This is much different from a proposing convention and yes, it was rejected. This convention would not only had been able to propose, but conclude and enact. But even so, it was being asked for to add amendments that the ratifying conventions may see a need for. It would seem by calling this rejected convention to consider changes recommended by State ratifying conventions a Constitutional Convention, would be a betrayal to their own definition of a Con Con. It only was to add amendments recommended by the ratifying conventions. Falsehood #2. An Article V Convention can be limited to specific subjects or amendments. Conventions, in the American tradition, are considered the highest law-making authority in republican government [9]. As such, they are beyond any limits that may be placed on them. This isnt just theory, it is settle case law. In Benner v. Porter, SCOTUS said, The convention being the foundation of all political power, from which flowed that which was embodied in the organic law... [10] And there are many more rulings that a convention is beyond such limitations. I will include a few in the footnote [11]. But lets say they try to limit the convention to a subject or specific amendment. Should the applications of 34 States be binding in the other 16? Should the convention call by Congress limit the other 16? If would seem that by doing so, it would, to borrow for Madison in Federalist 40, render nominal and nugatory the transcendent and precious right of the people to abolish or alter their governments as to them shall seem most likely to effect their safety and happiness. [12] There is also a theory that since a convention under Article V is not limitable (there is no language in Article V that states in is limitable), then any application that suggests a limit (to a specific amendment or subject) is null and void, and not an application under the wording of Article V. An example is Charles L. Black Jr., who said, If the view that the convention is illimitable is right, as I and others contend, if that is the kind of convention Article V refers to, then in the case stated, none of the applications which the Report puts on parade would have called for the thing the Constitution names, properly construed. None, therefore, would be effective; none would create any congressional obligation. Thirty- four times zero is zero. [13]
Posted on: Wed, 17 Dec 2014 09:59:48 +0000
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