We hold that Article 5 is most certainly in the Constitution and is a valid and potentially useful tool for righting any defects. We further propose defects that exist are minor. An Article 5 convention would not result in any kind of a correction for what is happening to cause the current devolution of law we are witnessing. Frankly, what would come out of an Article 5 convention would be just as subject to oath violation as the current Constitution.
Further, although there are those in the Article 5 camp that believe only good could come from it, the left has their own designs, and these designs must be considered. Recently in an article in the New American, Christian Gomez detailed the left’s plans: “…we warned about liberal Harvard Professor Lawrence Lessig’s bipartisan Call a Convention organization and website, which has since then fortuitously gone defunct. We also warned about the left-wing Con-Con group Wolf-PAC, founded by Cenk Uygur, the host and producer of the progressive The Young Turks. Uygur, like Lessig and many others on the Left, wants an amendment to overturn the Supreme Court’s decision in Citizens United and to ensure public financing of elections. The same article also warned about those on the Left wanting to repeal or revise the wording of the Second Amendment. We also quoted from Lessig’s article “Fidelity in Translation,” published in the May 1993 issue of the Texas Law Review, in which Lessig wrote, “Perhaps … it is time to rewrite our Constitution.”
Now, further validating our warnings of a convention from the Left, The Nation magazine — known for its radically progressive and historically communist-leaning views — has published an article in its November 20-27, 2017 issue entitled, “The US Constitution Is Over 2 Centuries Old and Showing Its Age,” with the rather telling subtitle, “To fix our broken system, we need a new constitutional convention.”
The Nation article states, “A convention of states, therefore, is the best remaining option for sorely needed constitutional reforms.”
Among the amendments to the Constitution that The Nation suggests could be proposed or brought up at a Con-Con are free universal healthcare, education, and housing; campaign finance reform; abolishing the “anti-democratic” Electoral College, relying solely on a national popular vote for the election of the president and vice president; non-renewable, 18-year term limits on Supreme Court judges; and a guaranteed living wage.”
Now, back to the issue I was dealing with earlier about men who understand the times these men, and if I could humbly include myself, believe we are not currently in such a time as we were 231 years ago. We believe that what would emanate from a convention today would be far removed from what happened 2 centuries ago and would probably result in the destruction of the protections that were erected at that time.
In addition, remarkably, those who hold to an article 5 convention consistently also hold that we cannot nullify unconstitutional law especially if it has been ruled, that is in reality, an opinion has been given, by the Supreme Court, that said law is constitutional. They’re willing to give their lives over to one vote in a nine person Tribunal. Yes, they are willing to be ruled by a 5-4 vote. Why will they not be ruled by say a 50 to 20 vote in the Idaho legislature where 50 of our legislators many of whom have a good legal training may believe a particular law is unconstitutional. Why will they do it for the five but not for the 50? Strange question indeed.
Another issue of controversy is the concept of nullification. I personally have treated this issue numerous times elsewhere so I won’t go into great detail but suffice it to say that state governments have been nullifying federal law since the beginning of the Republic. Roger Sherman, the only person to have signed all four great state papers of the United States: the Continental Association, the Declaration of Independence, the Articles of Confederation, and the Constitution understood clearly the document that he had helped form and in December 1787 he reminded his contemporaries that “The powers vested in the federal government are only Such as respect the common interests of the Union, and are particularly defined, So that each State retains it’s Sovereignty in what respects its own internal government, and a right to exercise every power of a Sovereign State not delegated to the united States. And tho’ the general government in matters within its jurisdiction is paramount to the constitutions; laws of the particular States, yet all acts of the Congress not warranted by the constitution would be void. Nor could they be enforced contrary to the Sense of a majority of the States. One excellency of the constitution is that when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to support it, but when it over leaps those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”
Alexander Hamilton, speaking at the New York ratifying convention said, “I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding”
In addition, in Federalist 33 Hamilton said, regarding the supremacy of laws enacted by the federal government which he called the “larger political society”: “If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
Yes, he actually encouraged the states to treat non-pursuant enactments as usurpation and to ignore them. In that same paper he also said in a manner that contained incredulity: “It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.”
There is much, much more. Nullification is a thoroughly constitutional idea that was expressed both in its pages and in the papers of the day that detailed the intent of those who created the Constitution. Do we really believe in getting back to the original intent or not? Do we really think that the founders would’ve ratified the Constitution where Article 6 said something to the effect, “This Constitution, and every Law of the United States which shall be made for any purpose; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”? Perish the thought.
This was debated ad nauseum and set aside. It was one of the concerns the anti-Federalists had. The founders who traveled around to speak to state ratifying conventions consistently pooh-poohed that idea. They drew the attention of their listeners back to the fact that the Constitution proposed was an enumerative document and what was not given could not be done. It was a grant of power with each and every power granted, specifically laid out.
Some early examples of nullification were acts of states ignoring federal controls of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription. Today we see states ignoring the Real ID Act and marijuana laws. Thus they may be minor but the fact remains they have happened and are happening. In some cases, the courts ruled against those early acts and are ruling against some of the modern acts. Do we really believe courts rule? I thought kings ruled. Courts issue opinions. When we subject ourselves to a 5-4 opinion we are fools.
One other point that is made in some cases is that some of the founders changed their minds about nullification and other issues and therefore we must agree with their latter opinion rather than their former. Upon what do they base that requirement? We hold to Madison and Jefferson’s opinions when they penned the resolutions of 98. We believe that when Madison changed his mind, it was a result of pressures of the day, disaffection with his countrymen and their continued non-adherence to the Constitution among things.
Men change their minds sometimes for the wrong reasons and their new opinions are incorrect. John Adams, one of the great founders in the early days when he became president apparently let that power go to his head. He was the instigator of the alien and sedition acts, a blot on his presidency and a testimony that even good men can do stupid and wrong things.
Let’s face it, there are strong opinions on both sides held by people who are otherwise in most instances, on the same page constitutionally. Yes, Article 5 is in the Constitution. But there is so much that is in that document that our legislators disobey on a daily basis. Why do they think we live in a time when that document can be entrusted to those who violate it daily?
And so concluding, no one that I know who is opposed to an Article 5 convention believes it is not constitutional. We just believe this is not the time. We hold with big government Hamilton that when the federal government overstepped its bounds and encroached on the sovereignty of the states, those “…ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity.”
Well, the federal government has gone to such extremities. Multiple times. If our state governments would but find their backbones they would resist these encroachments. What could happen I ask you? If the state of Idaho actually was willing to defend such statutes as 18-3315A which stipulates that any “personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Idaho and that remains within the borders of Idaho is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce.
It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory or ammunition that is manufactured in Idaho from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state.”
Would the US government send in F-16s and bomb Boise? I think not. Idaho needs to get her house in order. She needs to stop taking federal monies wrapped up in federal strings, in short she needs to cease succumbing to federal blandishments. Start with something such as this statute and say we will no longer allow a non-pursuant, Second Amendment violating federal statute to rule in our state. This would be a good start and I believe other states would follow, plans of resistance would be concerted, a proper spirit would animate and conduct the whole of them and freedom would again be on the horizon.