Timothy N. Baldwin, JD.
August 3, 2013
The subject of this article is restoring liberty through the use of Article V in the Constitution—an amendment convention and ratification. Some scholars have concluded that there are already enough State applications to call an amendment convention, so conservatives should get used to the idea being discussed candidly and intelligently. I will attempt to show how constitutional amendments can and are to be used to restore liberty when circumstances require.
The Opposition to an Article V Convention
Opponents claim that a constitutional amendment convention is, at the least, a very bad idea. The most common response is summarized by the John Birch Society (JBS) and goes like this:
[T]he ultimate argument against convening an article V constitutional convention is that based on the theory of popular sovereignty of the Founding Fathers, any such convention of the sovereign people would have the inherent right to propose any changes to the Constitution that they deemed necessary to properly secure our rights, and even the right to specify the method of ratification of these proposed changes, just as the Constitutional Convention of 1787 did.(source.)
They call this a “runaway” convention (even though that is really a misnomer ), but this does not state why such a thing is bad; it only describes the thing itself. Historically speaking,the Federalists denied that such a “runaway” convention would take place. Hamilton said in FP 85,
[E]very amendment to the Constitution…would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.
So, why is a “runaway” convention bad? They say:
“We Cannot Trust the States”
Regardless of Hamilton’s perceived parameters, the reason opponents to an amendment convention characterize it as bad is because they essentially do not trust what three fourths of the states would do to the Constitution, presumably turning it against republican ideas.The JBS puts their distrust of the States this way,
How can we be sure that the customs and procedures of 200 years ago regarding constitutional conventions will be adhered to today when large portions of the Constitution itself are no longer obeyed? (source.)
Among other things, JBS’s position assumes the States are the source of the federal government’s failure to follow the Constitution. This is an incorrect analysis. We see today more than ever the States opposing the federal government’s failure to “[obey] constitutional conventions.” One cannot impute to the States how the federal government disregards the Constitution, and thus, their reason is invalid to oppose an amendment convention.
Regardless, amendment convention opponents claim that the basis for forming the Constitution in 1787 does not exist today, as Madison said it did then:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government. (FP 51.)
To amendment opponents, however, they believe the people are not to be trusted as the “primary control on the government.”This begs the question, if the States cannot be trusted to enforce the Constitution, who can?
One may argue that the premise used to create and ratify the Constitution no longer exists today. However, if that claim is true, then one CANNOT simultaneously claim the Constitution must remain as is forever. Madison explained why: “if circumstances may require a deviation from the rule on one side, why not also on the other side?” (FP 53.) Therefore, those who claim the States do not possess the requisite patriotism to restore liberty but the Constitution must remain show their ignorance of political principles and experience and offer no realistic solutions to a constitutional dilemma.
“The Constitution is ‘Perfect’”
Opposition to an amendment convention also stems from the idea that the Constitution is (nearly) perfect, and no generation of Americans can or needs to improve it. This position is misguided and operates under rules contrary to human experience and our own history.Even the Founders denounced such an idea.
Recall that the Anti-Federalists (most of whom followed the leadership of Thomas Jefferson and Patrick Henry) characterized the Constitution as much less than perfect and in some cases, evil.The-Constitution-is-perfect approach is wrong. It removes science from our political life and foolishly replaces it with mystical tradition. As our own experience shows, amendments to the Constitution can improve our political plights.
“The Federal Government Will Control the Convention”
Some amendment opponents also believe the federal government (or their “handlers”) will control such a convention, and any discussion that takes place in the convention would be manipulated by them. This, again, contradicts what the Federalists stated about an amendment convention. Hamilton said “that the national rulers…will have no option upon the subjects…[and] all the declamation about the disinclination to a change vanishes in air.”(FP 85.)Indeed, giving speculative reasons not to act for fear of what the Constitution explicitly prevents creates an adversary that does not even exist because it has never been tried. Straw men are nothing to fear.
But were Congress to interfere with the people’s convention, would this not prove to be sufficient grounds for conservative States to declare their independence from the source of their slavery?—this violation paralleling the grievances committed by Great Britain against the colonies, such as dismantling the colonies’ legislatures.
The Founding Generation Accepted the Usefulness of Amendment Convention
The Federalists were not fearful of an amendment convention, and this is not because that generation somehow monopolized enlightenment or purity. Considering social context, the Anti-Federalists and Federalists were opposed as polemical liberals and conservatives are today. If one were to ask Jefferson if liberty could exist under Hamilton’s view of the ideal government, he probably would not have respected the question with an answer.
Thus, their putting Article V in the Constitution is significant. They only discouraged frequent amendment conventions, so time could more assuredly reveal the faults that must be corrected for long-term results.Who would argue the States have used Article V too frequently?Who would argue we do not have enough jurisprudence in America to know what amendments can curtail federal usurpation?
The amendment convention goes to the core of being governed by consent. As Hamilton articulated with artful precision, “[are] societies of men…really capable or not of establishing good government from reflection and choice, or [are] they are forever destined to depend for their political constitutions on accident and force?”Article V was designed to facilitate the former.
Speaking of Article V’s purpose, Hamilton said, “[w]e may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.” (FP 85.)Madison said it similarly,
it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.(FP 49.)
Remarkably, the Federalist expected the people to “get back to the Constitution” by amending it. Put specifically, they expected the people to clarify, solidify or modify the Constitution when necessary to preserve the constitutional structure. (See, FP 49.)
Vattel expressed a similar concept when he said that the people have the right to “form, maintain, and perfect its constitution.” Perfecting a constitution necessarily means improving it over time. Arguing “there is nothing wrong with the Constitution and therefore we should do nothing” only allows enemies of the Constitution to have their way and does nothing to restore what is lost. Experience proves this.
In short, the Constitution, made of words (a less than precise way of controlling human behavior), MUST be amended over time to bring government in conformity to it. Why have the States ignored this responsibility, which was declared by the father of our Constitution when he said, we must “appeal to the people themselves, who, as the grantors of the commissions, can alone declare [the Constitution’s] true meaning, and enforce its observance”? (FP 49.)
The Founders’ Reasons that Justify Using Article V
First, the Federalists explained that the Constitution’s effect and import would not be fully known except through time and experience. Reason, history, and political science allowed the founding generation to create and ratify an extraordinary Constitution, but they believed experience was “the best oracle of wisdom.” (FP 15.) They never believed their version of protecting liberty under the Constitution was perfect or without need of “clarification, solidification, and modification”—that is, perfecting.
Quoting David Hume, Hamilton explains the nature of a constitution this way,
To balance a large state or society…whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments.” (FP 85.)
Madison said as well,
[The amendment] mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.” (Madison, FP 43, emphasis added.)
Of course, among the “faults” of a constitution is its ineptitude in balancing and checking government power, knowing that people are “not angels.” Only experience will prove this point.
Second, the Federalists acknowledged that the constitutional evils society experiences, many times, result from imperfections of the Constitution, not corrupt politicians. Hamilton explained,
[T]he evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.(Hamilton, FP 15.)
If evils can result from the Articles of Confederation, they can also result from the Constitution. The principles of the Articles of Confederation were thought to be sound and with “few imperfections.” As they admitted, only experience can reveal where principles or their combinations do not harmonize with society’s character, condition and circumstances. As such, the main way to redress the evil is to alter the constitution (or its composition) by applying“first principles and main pillars of the fabric.”
Third, the amendment convention was a major method the States would use to prevent federal encroachment, which they admitted could happen over time. The Federalists supposed that at least three fourths of the States would be interested in protecting, not destroying, the people’s general liberty. Hamilton said,
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.(FP 85.)
Are we to presume that two thirds and three fourths of the States are so unenlightened, ignorant, or malicious that their chosen delegates or representatives would seek to enslave the people and not further the principles of federalism, limited government and prudence? Are we so uninformed about political science and experience that we cannot improve ourselves?
If we are to presume this, then what hope is there in ANY political remedy, including blood-shedding revolution? Madison said about such a desperate scenario, “[w]ere the Union itself inconsistent with the public happiness, [we should] Abolish the Union.” (FP 45.)
This naturally begs the question, is there more hope in a “runaway” federal Congress, President and Judiciary without any meaningful input from the people or States than in a convention where the States (directly elected by the people for this specific purpose) are the proponents and ratifiers of the amendments?
Fourth, the success of a federal constitution has as much to do with the political association of the States than the way the union operates among the States. Applying this maxim, the Federalists believed that one union was essential to our liberty while the Anti-Federalists believed that more than one union was necessary, regardless of the constitutional provisions or principles. In other words, it was not about the “rules of the game” but which teams were playing the league.
Underlying the entire discussion of the Constitution was whether the federal union under the proposed structure could feasibly govern a large number of States over a large territory. The Anti-Federalists believed that laws of proportionality required smaller unions within our American continent. The Federalists saw their argument against the Constitution as being one of COMPOSITION, not structure. Hamilton said,
Among the most formidable of the obstacles which the new Constitution [are proponents of the] subdivision of the empire into several partial confederacies than from its union under one government.(FP 1.)
Experience shows today’s candid observer that the number of unions among our States remains a viable question (if one believes America needs a fundamental change). Admittedly, the question of proportionality in a federal system is difficult:
[T]here is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals. (Hamilton, FP 13.)
As 1787 Americans discussed, this question derives as well from the rule of determining good government: that is, how well it is administered. In other words, if government is consistently ill-administered, the people must look to both the structure and composition of the union. Vattel put it this way, “If any nation is dissatisfied with the public administration, it may apply the necessary remedies, and reform the government.” Constitutional reformation includes how it is composed as much as how it is structured.
Of course, a multi-union America was anticipated in the Constitution’s plan in 1787 because ratification required only 9 of 13 states. They knew that the States in 1787 that did not ratify would have remained under the Articles of Confederation, and though “no political relation [would have] subsist[ed] between the assenting and dissenting States, yet the moral relations [would have] remain[ed] un cancelled.” (Madison, FP 43.)
What if a number of States would not have ratified the Constitution? Would conservatives today decry their decision as evil? Regardless, that our forefathers made room for a friendly yet separate relationship among the States shows their approval of it; otherwise, they would have made ratification conditioned upon 100% assent. Of course, such a scenario may be revisited (by necessity) in America’s future as ill-administration becomes the rule and not the exception.
How to Approach an Amendment Convention
Do amendment conventions pose risks? What political path doesn’t? The real question is, does doing nothing pose more risks?Given the allegations by those who oppose amendment conventions (e.g. “we are too far gone,” “there is no hope in the system,” “there is a ‘New World Order’ taking over,” etc.), there is more risk in doing nothing.
What realistic hope is there in doing nothing significant to change the course of our future and restoring what is believed to be lost?Denouncing the wisdom of thirty four states (mostly conservative in nature) is self-destructing patriotic rhetoric, not political science, and appeals to our emotions, not our reason.
If one feels there is no hope in Congress, President or United States Supreme Court; Republican or Democrat parties; States governments; media; and an amendment convention, what plan of hope can he offer except, “hunker down, load your guns and wait for a collapse!” or perhaps he can endlessly harp on the problems until our ears bleed!
Were such a grim look reality, would not that expose the “absolute necessity” of amending the Constitution to ensure America’s proper course, or at least to induce other extra-constitutional remedies? After all, the Constitution does not even anticipate a hopeless and speculative vision of political change. It offers change through Article V—a realistic remedy for political goals.
Creating America’s Future
Patriots should reject the cynical view that most Americans are incapable of governing themselves. The reality is, the States are opposing the federal government more today than ever. Left and right, States are pushing against federal encroachments. Of course, the Federalists knew such a movement would happen in our Republic because the people would have a much greater affection for their States than for the federal government. Their prediction is reality.
The reason for the States’ movement rests in the impulse of self-preservation:
Were it proposed by the plan of the convention to abolish the governments of the particular states,…by the principle of self-preservation, [the people would be required] to reinstate them in their proper jurisdiction. (Madison, FP 14.)
Indeed, reinstating the States’ proper jurisdiction is the political climate today. Consequently, we see advocates of an amendment convention rightly proposing a “bill of federalism” to put our union on the correct track of federal principles. Conservatives who refuse to capitalize on this ripe political climate harm liberty’s cause; they can only tell us to seek remedies like, “don’t vote for Republicans or Democrats” and other fruitless roads.
One of the great attributes of the Founding generation was their willingness to apply all of the components of wisdom: principles, experience, pragmatics, and reason. Resulting from this wisdom, those Americans frequented the questions of political institutions and associations and were not afraid to treat politics as a science and not as a religion. Consequently, they produced liberty for themselves and their posterity, but they expected us to use the same methods of wisdom for ourselves.
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“[A] nation ought to know itself,” Vattel said, for “[w]ithout this knowledge, it cannot make any successful endeavours after its own perfection…and will act at random, and often take the most improper measures.” As has been observed years ago, America does not know itself and is making improper measures because the States have waited too long to readdress first principles in the Constitution. They have only to rely on the federal Judiciary to determine what they should be determining themselves.
Ignoring the amendment convention does not help America. It hurts us. It is time liberty-loving Americans approach our political situation the way our Founders did. Otherwise, the best that can happen is we allow our future to be determined by something other than our deliberate reflection and choice.
Part 7, Revolution
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Michael Stokes Paulsen Harvard Journal of Law & Public Policy, 34
Harv. J.L. & Pub. Poly 837, The Federalist Society National Lawyers
Convention - 2010, HOW TO COUNT TO THIRTY-FOUR: THE CONSTITUTIONAL CASE
FOR A CONSTITUTIONAL CONVENTION (Summer, 2011).
2. If Article V allows the people to propose any amendments at the convention, then it is completely within their authority to do so and thus is not a “runaway” convention.
3. Emer de Vattel (author of the The Law of Nations) confirmed what Madison observed, saying, “the decision of [constitutional] grand controversy belongs to the nation, and to the nation alone.”Emer De Vattel, The Law of Nations, Ed. Bela Kapossy, (Liberty Fund, Indianapolis, IN 2008), 119
4. “[The Monarch of Great Britain] has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.” Declaration of Independence.
5. “The danger of disturbing the public tranquility…is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society.” Madison, FP 49
6. Vattel, The Law of Nations, at 94 (emphasis added).
7. “The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world.
jurisdiction of her several courts, general and local, of law, of equity,
of admiralty, etc., is not less a source of frequent and intricate discussions,
sufficiently denoting the indeterminate limits by which they are respectively
circumscribed. All new laws, though penned with the greatest technical
skill, and passed on the fullest and most mature deliberation, are considered
as more or less obscure and equivocal, until their meaning be liquidated
ascertained by a series of particular discussions and adjudications.” FP 37.
8. “If men were angels, no government would be necessary.” Madison, FP 51.
9. “They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide.” Madison, FP 14.
10. “[W]hat is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure.” Madison, FP 43 (emphasis added).
11. “If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment.” John Jay, FP 4 (emphasis added). “Various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments.” Hamilton, FP 27 (emphasis added). “[T]he true test of a good government is its aptitude and tendency to produce a good administration.” Hamilton, FP 68 (emphasis added).
12. Vatel, The Law of Nations, at 94.
13. “We shall therefore only observe in general, that, great changes in a state being delicate and dangerous operations, and frequent changes being in their own nature prejudicial, a people ought to be very circumspect in this point, and never be included to make innovations without the most pressing reasons, or an absolute necessity.” Vattel, The Law of Nations, at 96.
14. “[E]very constitution must limits its precautions to dangers that are not altogether imaginary.” Madison, FP 43.
15. “The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.” Madison, FP 45.
16. See, Rand Barnett, “Bill of Federalism,” Randy Barnett teaches constitutional law at the Georgetown Law Center and is author of Restoring the Lost Constitution: The Presumption of Liberty (Princeton 2005). In 2004, he argued the medical cannabis case of Gonzales v. Raich in the Supreme Court.
17. Vattel, The Law of Nations, at 91.
© 2013 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com