The John Birch Society is vehemently opposed to an Article V convention of states. The following paper analyses the assertions on their website.
Article VI, not Article V
The JBS website states that “the founders’ solution to out-of-control government: Article VI, not V”. Let’s take a serious look at this assertion.
Madison’s notes from the Constitutional Convention cover a pivotal moment in the formation of Article V on the final day of discussion on Article V (15 Sep 1787). At this moment, the Article only allowed the national Legislature to propose amendments.[1] This was exactly the opposite of the original Virginia Plan to bypass the national Legislature in the amendment process. George Mason made the following motion:
Colonel Mason thought the plan of amending the Constitution exceptionable and dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind, would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.[2]
Mason’s motion to avoid the national Legislature was carried unanimously. This is a direct refutation of the primary JBS “not V” assertion. It is clear from Madison’s notes that the framers of the Constitution did see Article V as the ultimate solution to an oppressive (out-of-control) national government.
If we look deeper into the assertions of JBS, the notion that one article of the constitution trumps another would be an assertion with which James Madison would take exception. In a letter to Edward Everett[3], dated 28 Aug 1830, Madison writes:
When the Constitution was adopted as a whole, it is certain that there are many of its parts which if proposed by themselves would have been promptly rejected. It is far from impossible that every part of a whole would be rejected by a majority and yet the whole be unanimously accepted. Constitutions will rarely, probably never be formed without mutual concessions, without articles conditioned on & balancing each other. Is there a Constitution of a single State out of the 24 that would bear the experiment of having its component parts submitted to the people separately, and decided on according to their insulated merits?[4]
To Madison (and probably all the framers), the articles within the Constitution worked together, not against each other.[5]
Article VI
Let us consider the JBS assertions on Article VI. They fundamentally are the following:
- The supremacy clause only renders those law that confine themselves to the powers granted by the Constitution are constitutional.
- Public servants take an oath.
- Duty to reject and oppose all constitutional violations.
James Wilson was the author of both the necessary and proper and supremacy clauses. He stated this view of the supremacy clause during the Pennsylvania ratification convention.[6] The first problem is that it is not what the supremacy clause states. It states that all laws derived from the Constitution are the supreme law of the law; however, it does not state that laws not derived from the Constitution are not the supreme law of the land. In other words, the clause is patently defective and actually allows Congress to pass any law it wishes. The second problem is that by definition an out-of-control government will simply ignore this restriction on power. How does believing that Article VI is the solution to abuse of the supremacy clause in Article VI make any sense at all?
With respect to the second bullet, Wilson asserted that he never found an oath of office to be of much value, stating during the Constitutional Convention that:
he was never fond of oaths, considering them as a left-handed security only. A good government did not need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of the existing government, in case future alterations should be necessary; and prove an obstacle to the seventeenth Resolution, just agreed to.[7]
The seventeenth resolution to which Wilson refers is the renumbered 13th resolution of the original Virginia Plan, which stated that “provision ought to be made for the amendment of the Articles of Union” (with the additional qualifier that the process bypass the National Legislature). In other words, he was concerned that an oath would reinforce a tyrannical national government against rightful application of amendment by the states.
Nathaniel Gorham and Elbridge Gerry disagreed with Wilson’s contention that there would be an inconsistency between an oath and an amendment process (that would bypass the national government). Gerry made the following point to support an oath:
On the other side, he thought one good effect would be produced by it. Hitherto the officers of the two Governments had considered them as distinct from, and not as parts of, the general system, and had, in all cases of interference given a preference to the State Governments. The proposed oath will cure that error.[8]
In the final analysis, the framers did not put much stock in the value of the oath, but they thought it would tilt the divided loyalties between state and the “general government” toward the new general government. They had no confidence that the oath would have any effect on a bad (out-of-control) government.
Duty to Reject (Nullification)
The third bullet, to oppose constitutional abuse (also known as nullification), is nowhere to be found in Article VI. The framers were crafting a Constitution to last, not trying to undermine it. The source of this contention can indeed be found in John Locke’s writings that society can replace government.[9] The founding generation respected just revolution, but they did not promote what Madison called the mortal diseases of instability, injustice, and confusion.[10] Rejecting an unconstitutional law that has undergone the constitutional process does inject confusion and potentially instability and injustice.
We can find more direct information on how James Madison felt about nullification by reading his letters. Both Jefferson and Madison opposed the alien and sedition acts. The result was the Kentucky and Virginia principles of 98, which have become synonymous with nullification (although Madison himself disputed this[11]). In his letter to Everett on 28 Aug 1830, Madison makes clear that he does not approve of nullification. His view is that the Constitution is a compact of the majority that cannot be overridden by a minority.
The reply to all such suggestions must be that the Constitution is a compact; that its text is to be expounded according to the provision for it making part of that Compact; and that none of the parties can rightfully violate the expounding provision, more than any other part. When such a right accrues as may be the case, it must grow out, of abuses of the Constitution amounting to a release of the sufferers from their allegiance to it.[12]
If we read this quote closely we see that Madison would prefer revolution or secession to nullification. He went on to state that the diversity of law across the Union would disorganize it and possibly decompose it.[13] Jefferson and Madison both supported the principles of 98 as nothing more than a statement of objection. They recognized that the principles had no constitutional teeth.
In our present time, we find ourselves in a similar circumstance with respect to marijuana. A number of states are attempting to nullify the ban on marijuana. In point of fact, the current banned substance list is probably really unconstitutional and evolved from the repeal of prohibition. Addiction is a problem that defies governmental solution and is best address by society itself as the ultimate problem solver. Nevertheless, the current interpretation is that the supremacy clause applies, just as it did when the alien and sedition acts were tested. By the way, these acts have never been rescinded. They served as the basis for FDR’s Executive Order 9066 that sent over 100,000 Americans to internment camps during WWII.[14] Had Chris Christie been elected in 2016, he put the states on notice that their uprising would have been squelched.
In Madison’s opinion, the confusion and instability of nullification is more dangerous than the constitutional abuses of a bad government. In practice, the problem with nullification is that it has no “constitutional teeth”. The national government can reference the supremacy clause and impose its will on the states – and the people. The only constitutional mechanism to supplant this abuse of the supremacy clause is via an Article V convention to specifically eliminate the abuse.
Article V
Let us consider the JBS assertion on Article V. They fundamentally assert the following:
- Constitutional amendment process
- Correct errors in Constitution
- Abolish or replace Constitution
The first two bullets are absolutely correct. Let’s look a little closer at the evolution of Article V.
The root of Article V was resolution 13 of the Virginia Plan. That resolution read as follows:
13. Resd. that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto.[15]
What we see is that the framers saw the need for the amendment process to bypass the national government from the start. Why? The position of the framers was exactly the opposite of JBS. They did not trust a national government that they were sure would become tyrannical to amend the Constitution.
The amendment process was basically left on the shelf until the Convention broke for 10 days between 27 Jul and 5 Aug. During that time, Edmond Randolph penned the first serious attempt at a real amendment process. It became Article XIX of the document produced by the Committee of Detail. It read as follows:
On the application of the Legislatures of two-thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose.[16]
If this looks familiar, it should. It’s what is called the “second method of proposal” in Article V, the convention of states. Only the states are involved in amending. It was actually the first and only method until 10 Sep 1787. The major points of the debate that day were:[17]
- Elbridge Gerry started the debate with a concern that a majority of states might subvert other State Constitutions.
- Alexander Hamilton objected that the states would promote their own self-interest and that the national legislature should have an equal balance on their power.
- Madison’s notes then show that he had questions about the details of “call a Convention for the purpose”. This was before the two steps for proposal and ratification were codified.
- Sherman, Gerry, and Wilson debated about adding ratification by ¾ of the states. This clarified the two step process we see in Article V today.
- At this point, Madison himself penned the first take at what was recognizable as what Article V would be.[18] It is apparent at this point that his earlier questions about the amendment process were satisfied by the conversation. He moved to consider what he had written. Hamilton seconded the proposition and it became the new base of Article V.
- John Rutledge of South Carolina ended the discussion by objecting to any amendment against slavery until 1808.
The final day of debate on Article V then occurred on 15 Sep 1787.[19] At this point, the text of Article V read as follows:
The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose, amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth Section of Article 1.
The key issues of Article V on this final day were:[20]
- A number of delegates shared Gerry’s concern about a majority of states subverting another state(s). Partly from Roger Sherman’s urging, but finally from Gouverneur Morris, the phrase “that no State, without its consent, shall be deprived of its equal suffrage in the Senate” satisfied the concern. To a degree, this thread of debate was an extension of big versus little states.
- George Mason’s then objected to having both methods of proposal go through the national government. Morris and Gerry were instrumental in restoring Randolph’s original methodology to the Article as a result of the discussion. Madison did not object, but he failed to see the significance of having the states be the authors. An author will look closely at his self-interest. The final Article allowed for a balanced “tug of war” between state and national power for correcting constitutional issues. The results of never having an Article V convention has been that errors that favored the states have been corrected, but errors that favor the national government have never been addressed. The resulting imbalance is an existing Constitution that favors the national government more than the original.
- Immediately after Mason’s concern, Roger Sherman actually made a motion to strike the three-quarters requirement from the current ratification process, implying that ratification of amendments would have to be unanimous – as in the Articles of Confederation.[21] This motion was defeated by a vote of 7-3-1. New Hampshire was split.
The con-con meme
During the First Congress’ debates on the Bill of Rights, Roger Sherman specifically pointed out that “abolish or replace” was not allowed by Aricle V:
All that is granted us by the 5th article is, that whenever we shall think it necessary, we may propose amendments to the constitution; not that we may propose to repeal the old, and substitute a new one.[22]
As such, an Article V convention can only propose amendments. It cannot ratify them. Moreover, we have a key framer telling us that Article V specifically does not empower an Article V convention to replace the existing Constitution in any way, shape, or form.
At this point, we should ask ourselves which path is riskier, holding an Article V convention or not holding one. Regardless of which of the two processes proposes an amendment, it must pass ratification by ¾ of the states. If we look at the raw numbers, there have been over 11,500 motions for amendment on the floors of the national Congress.[23] Of those, only 33 have been sent to the states. Of those, only 16 have been ratified (eleven of the original twelve amendments sent to the states for ratification by the First Congress). The people in Congress are fairly evenly divided, but they know each other.
The odds are very good that the delegates ultimately chosen for an Article V would not know each other to any large degree. Likewise, the divide in the country is much wider than the divide in 1787. Both of these facts imply that reaching consensus would be much more difficult than what transpired in the Constitutional Convention.[24] The Philadelphia Convention lasted approximately 100 days with 55 delegates, with that many never attending at one time. If we extrapolate a similar delegation per states of four or five, we see 200 to 250 total delegates. The likelihood that such a convention could agree to a whole new Constitution in 100 days is highly improbable, but what states are going to authorize attendance and foot the bill for that long?
Of course, the infinite monkey theorem tells us that given infinite time, a monkey would “almost surely” type the works of Shakespeare.[25] As such it’s conceivable that, given unlimited time, a convention might propose a single amendment that would supersede the current Constitution, or a series of amendments that would do likewise. There is just one problem with the theory. Time is money, and such an elongated convention would clearly break the bank of every state in the Union. And there is the nasty little detail that human beings only live a finite time, so the process would have to restart with another set of “monkeys”. That means increases the time from a “smaller infinity” to a “larger infinity” of time. So, clearly an Article V Convention creating a new Constitution is about as likely as raising the dead. Then, of course, the ratification of said new Constitution is likewise far-fetched.
Let’s consider never calling an Article V convention. What happens? Consensus seems to be that the national government is not following the Constitution now. Assuming that the national government is following the Constitution leads us to the conclusion that the Constitution is the problem and needs to be fixed. But who will fix it? If we acknowledge that the problem is the administration of the Constitution (e.g., not following it), who is going to reign in the runaway national government to make it follow the Constitution? As we have seen, James Madison himself laid out the argument that nullification is not constitutional because it enables one state to violate the constitutional compact. This is theory, but the Supreme Court has consistently upheld that view, and currently the Supreme Court is the ultimate arbiter. No doubt that should change, but it can’t without amendment. Just as Hamilton pointed out that the states would amend to increase their power, none of the amendments from the national government have reduced its power – nor will they.
Now consider holding an Article V convention. Will all of the conspiracy theories take place? For certain the corruption at the national level will attempt to corrupt the process, but we should look at the complexity. The corrupting elements in DC are centralized, just like the national government. They are not prepared to distribute their efforts. Technology will afford them many options to disperse their efforts, but they are dealing with unfamiliar territory when it comes to corrupting the processes of delegate selection in all 50 states. Keep in mind the process will vary from state to state. They would probably opt to approach delegates once they are selected in order to corrupt them rather than try to figure out how to corrupt the selection process. Now we get to the true heart of the matter. Ben Franklin summed it up in his closing speech at the Constitutional Convention:
Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.
Does the corruption in DC reflect us as a society, or is it a concentration of corruption that is unique within our society? If the former is true, as Aristotle pointed out two millennia ago (and Franklin 200 years ago), we are incapable of self-rule, and the constitutional safeguards of our rights are null and void already. On the other hand, if DC is merely a concentration of corruption within our society, the only way to overcome it is to enable the real sovereign, the people. The only constitutional means by which to do that is an Article V convention.
The answer to whether we as a society are too corrupt for self-governance may well simply rest with whether we have the guts to invoke Article V.
Summary
What is the definition of a runaway national government? One that ignores its limitations as defined in the Constitution seems reasonable, and appears to be the JBS definition. That means it ignores the limitations in any of the Articles, including Article VI. In fact, any abuse of constitutional power is, by JBS’s own bullet point, a violation of the supremacy clause in Article VI. Article VI provides no answers to a runaway national government because it is surely being violated. On the other hand, Article V does provide the potential for remedy via amendment.
JBS promotes the notion of nullification to address abuses by the national government. Madison saw nullification as dangerous to the nation.
That a final decision of such controversies, if left to each of 13 State now 24 with a prospective increase, would make the Constitution & laws of the U. S. different in different States, was obvious; and equally obvious that this diversity of independent decisions must disorganize the Government of the Union, and even decompose the Union itself.[26]
He went on to outline the order of keeping the national government bound by the Constitution:[27]
- The appellate authority (Supreme Court) would strike down unconstitutional laws. One of the objections the Anti-federalist had against the Constitution was that they did not believe the Supreme Court would strike down unconstitutional laws.[28]
- The Executive and Judicial branches are at all times subject to impeachment. This has been seldom used against either branch. It has become wholly ineffective.
- Madison then enumerated the Article V convention of states as the last resort.
Like Alexander Hamilton, Madison put a lot of faith in the public virtue of officials at the national level. Today we clearly see the corruption in DC. The first two of his bullets depend upon the national government to police itself. That leaves Article V conventions of states as the only remaining viable remedy.
A republic depends upon the Aristotelean arete, or public virtue, of the people. Aristotle was clear that this included a spirit of excellence that forbids shrinking from duty. Every generation of Americans to date has risen to the challenge to prove they are capable of self-governing. The choice before us is to take the modest risk to improve our situation, or to choose the loss of liberty to which we have grown accustom – and the loss of liberty to which we will grow accustom. The latter choice lacks public virtue and is the measure of a society unfit to govern itself. We control our destiny – and that of our “posterity”.[29]
[1] http://teachingamericanhistory.org/convention/debates/0915-2/
[2] Farrand, Vol 2. Pg 504
[3] https://www.loc.gov/resource/mjm.23_0288_0294/?q=13th+amendment&sp=1&st=text
[4] Ibid.
[5] Ibid.
[6] http://www.constitution.org/rc/rat_pa.htm (1 and 11 Dec 1787)
[7] Farrand. Vol. 2, pg. 74.
[8] Ibid.
[9] Locke, Two Treatises of Government. See the second treatise, chapter 19, section 233.
[10] http://avalon.law.yale.edu/18th_century/fed10.asp
[11] https://www.loc.gov/resource/mjm.23_0288_0294/?q=13th+amendment&sp=1&st=text
[12] Ibid.
[13] Ibid.
[14] https://www.archives.gov/historical-docs/todays-doc/?dod-date=219
[15] Farrand. Vol 1. Pg 32.
[16] Farrand. Vol 2. Pg 149.
[17] Farrand. Vol 2. pg 446.
[18] Ibid. pg 449.
[19] Ibid. pg 503.
[20] Ibid. pg 503-504.
[21] Ibid. 504
[22] Annals of Congress. August 13, 1789
[23] “None,” Xavier Becerra, PolitiFact, accessed July 06, 2016, http://www.politifact.com/truth-ometer/statements/2011/aug/30/xavier-becerra/11000-attempts-amend-us-constitution-only-27-amend/;
“List of Proposed Amendments to the United States Constitution,” Wikipedia, last modified June 8, 2016, http://en.wikipedia.org/wiki/List_of_proposed_amendments_to_the_United_States_Constitution.
[24] https://www.nature.com/articles/srep29704
[25] https://en.wikipedia.org/wiki/Infinite_monkey_theorem
[26] https://www.loc.gov/resource/mjm.23_0288_0294/?q=13th+amendment&sp=1&st=text
[27] Ibid.
[28] Natelson, Original Constitution, 148–149.
[29] Preamble to the US Constitution.
