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THE FALLACIES OF ANTI-ARTICLE V ADVOCATES
PART 1 of 2

 

 

By Timothy N. Baldwin, JD.
October 8, 2013
NewsWithViews.com

I am honored that Dr. Edwin Vieira took time to respond to my latest article, I Want a Real Liberty Movement.

In his article, “Enforcement, Not Amendment, Is the Answer,” Dr. Vieira claims that using Article V to restore our federal republic is not what we should be pursuing. Among the regular writers on NewsWithViews who join him are JB Williams and Publius Huldah. However, they make some fundamental errors, as I explain below.

Introduction

The arguments used against Article V are simply these:

1. Article V permits a “runaway” convention; and
2. All we need to do to restore the Constitution is enforce it.

Both of these conclusions are wrong and should be rejected as a basis not to use Article V to limit federal power.

Under the first argument, opponents of Article V attempt to scare patriots into believing that if we use Article V to limit the federal government’s power,we will get a worse constitution. They even argue that we would get an entirely different constitution (but do not explain how the states would ratify one.)

They begin by incorrectly using the term “constitutional convention” or “Con Con” to describe Article V. This not accurate but is meant to lead people into fear. As constitutional scholars have rightly stated, “the term ‘constitutional convention’ is misleading; it would be more accurate…to call it an 'amendment-proposing convention.'"[1] In fact, one of the purposes of the Article V convention is precisely to avoid any need for a constitutional convention.

As Hamilton explained:

There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.

Under the second argument, opponents of Article V point to other remedies they claim will “restore” the Constitution, such as nullification and the militia. However, no other remedy can change our federal jurisprudence and none will have nearly the same impact on restoring liberty as Article V.

Publius Huldah (PH) exemplifies mostly the first argument, and Dr. Vieira and JB Williams mostly exemplify the second. (But each expresses both in one form or another). I will address their articles in that order.

Publius Huldah

PH misstates history, ignores constitutional law and scholarship and uses logical fallacies to oppose Article V. Plus, PH’s article is full of sensationalism and fear-mongering. PH mostly feeds the hype of those who are already predisposed to opposing Article V.

I need not go into the errors of law and scholarship about Article V because other constitutional scholars have done this. Most notably, Rob Natelson has devoted much to Article V scholarship and has shown how PH and others are wrong to claim that (1) Article V allows for a “runaway” convention and (2) would result in a “runaway.”PH article cannot be compared to Rob’s work on Article V and is not entitled to the same weight of consideration. (Go to Rob’s website here.)

When one studies constitutional scholarship on the matter, he will find this conclusion stated similarly:

The framers did not intend the article V convention to deal exclusively with circumstances like those that confronted the republic in 1787. On the contrary, the concerns that led to the insertion of the convention alternative were far simpler and narrower.

They were, in short, that Congress could not always be trusted to do what was best for the country, and that when it was a practice of Congress itself that gave rise to the need for amendments, some other body should be made available to the people to initiate changes to the Constitution. Subsequent practice under article V also supports this interpretation of the purposes of the convention alternative.[2]

PH’s conclusion to the contrary is certainly not the prevailing view of Article V among scholars.

Next, PH pushes the common fallacy that Article V opponents use. PH says,

Yes, they tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is …. to amend the Constitution!Do you see how silly that is?

So, which amendment is PH saying Congress does not follow? What original constitutional provision is PH saying Congress does not follow? PH does not say; nor could she, because this would require her to prepare a legal opinion on a particular issue given a certain fact scenario—just like the judicial opinions are rendered in each and every case that have explained congressional power. Her attempt would only confirm and show how judicial decisions create constitutional jurisprudence—the body of law applying the Constitution.

The reality is,the federal judiciary puts flesh on the bones of the Constitution created in 1787. James Madison explained how this works in the Federalist Papers. He showed that the Constitution would not be definite in terms of “what is constitutional” except through the test of time and experience. It was “particular discussions and adjudications” that decisively established what the Constitution would mean over time. The Constitution’s meaning did not somehow self-evidently appear to the minds of all people, as if the constitutional term “regulate commerce among the several states” is as clear as the “Age of thirty five years.”

One important role of the amendment process is to correct judicial errors, just as the Eleventh Amendment corrected the Supreme Court’s decision in Chisholm v. Georgia and the Fourteenth Amendment correct Dred Scott v. Sandford. Nullification cannot do this; only Article V can. Specifically, it can correct the modern line of Supreme Court decisions that had ceded nearly-unlimited power to federal officials.

In fact, Madison’s description of constitutional law shows that Article V is the only way to correct federal jurisprudence and the “just enforce the Constitution” argument is fallacious and distractive. Madison said in FP 37,

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 and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas….

But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered.

The Founders explained that the federal judiciary was going to be the arbiters of the “lines of sovereignty” between the States and federal government. Madison explained this further in FP 39, saying, “It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government.” Madison also explained that this role of the federal judiciary “is clearly essential to prevent an appeal to the sword and a dissolution of the compact.” (FP 39.)

This meant that the judiciary’s decision was designed NOT to invoke the States to resistance but to keep them from appealing to arms and dissolving the union. In other words, the States should not take up arms against the federal government when the federal judiciary is the constitutional process by which the States object to congressional power. By their nature, judicial decisions are permanent until changed by a higher court—or by the people, through Article V.

As the federal judiciary was to prevent the States from appealing to the sword, so too Article V was to prevent an appeal to the sword. The only time arms were purported to be necessary was when Congress uses military force to destroy the States. In that case, Hamilton raises the natural right of self-defense in FP 28, saying,

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.

Certainly this remedy was considered the last remedy, not the first. It especially was not to be highlighted as a means of defense before trying to remedy the problems through Article V.

Too, in such a dire situation of having to use force (i.e. self-defense, Militia), the union would be dissolved anyway and the States would be forced to a constitutional convention for the purposes of (1) dissolving the political bands they have with the States causing their demise and (2) reestablishing the constitutional terms that govern their (new) union. Such would be inevitable and necessary for the survival of those States. Who would prefer this dire event take place before the States have an opportunity to limit federal power through Article V and an opportunity to keep the union intact?

Thus, nullification is not the ticket to fixing federal jurisprudence. How can this correct jurisprudence? It cannot. Moreover, conservatives do not even agree as to the constitutionality of “nullification.” Given our nation’s history on the subject, nullification will never be the complete answer to federal encroachment. Plus, if nullification were the answer to constitutional problems, there would be no need for Article V. Looking at the Federal Convention Debates of 1787, the Founders highlighted Article V, not nullification, as the States’ method of correcting federal actions.[3]

Using PH’s own description of a “disobedient” federal government, she should embrace Article V because the Founders created Article V for that reason. Under PH’s logic, the Founders should have never included Article V. But they did,for precisely the reasons we seek to invoke it now. Yet, PH calls using Article V “idiotic.” In doing so, she condemns the Founders as “idiotic.” If the States follow the logic of PH, we will be our own worst enemies of a true liberty movement that will have the effect of permanently limiting Congress’ ability to regulate in all cases whatsoever and will prevent an “appeal to the sword,” which Madison expected we do.

Dr. Edwin Vieira

Dr. Vieira uses similar reasoning as PH. To save the reader expense, Dr. Vieira—essentially—uses the argument that “there is nothing wrong with the Constitution; the federal government is simply disobedient.” He says,

if this [federal] jurisprudence is actually a false jurisprudence, then it has nothing to do with the Constitution abinitio, except to violate it; and therefore some remedy other than amendment of the Constitution would be called for.

All my responses to PH’s similar statements apply here.

Additionally, Dr. Vieira merely states a truism—that whatever is unconstitutional is null and void. Thus, he concludes that any federal judiciary decision that is unconstitutional is “false jurisprudence” and no amendment is needed. However, he completely leaves out the fact that the federal judiciary is charged with that duty and overlooks the nature of our constitutional system: that federal jurisprudence makes up our constitutional law. Once the jurisprudence (on a particular issue) is cemented, the States’ primary recourse to correct that is through Article V.

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Next, Dr. Vieira turns to the “practicalities of the process of amendment” to oppose Article V. Dr. Vieira creates scenarios for which there is no end, remedy and answer—as if America and even the world have no history or experience of how to run an interstate convention. This ignores the reality of our own experiences—successful ones! There were numerous federal conventions before and during the Founding Era, and several in the 19th century as well. This is a process we know how to use. For part two click below.

Click here for part -----> 1, 2,

2013 Timothy N. Baldwin, JD - All Rights Reserved

Footnotes:

1. E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKELJ 1077, 1081-82, Duke Law Journal (December, 1985).
2. Elliott, Constitutional Conventions and the Deficit, 1985 DUKELJ 1077 at1085.
3. I recommend studying this book on the subject of nullification, interposition and secession. Cogan, Neil H., Union & States’ Rights: A History and Interpretation of Interposition, Nullification, and Secession 150 Years After Sumter, (University of Akron , 2014).
4. Dr. Vieria observes that the PRINCIPLE of Article V is correct but argues the PRACTICE is not a good idea. This begs the question of whether patriots in the liberty movement should put practice over principle. As many are aware, many leaders in the “liberty movement” state that we are to never vote for a “lesser evil” because of the principle, regardless of what results. According to Dr. Vieira’s position on Article V, “liberty movement” patriots should begin using pragmatics and not principles to direct their decisions.
5. That Dr. Vieira would say that using the Militia does not “require or entail violence” is meaningless because it ignores the very nature of a militia—“the right of the people to keep and bear arms.” The use of arms is the use of violence to “secure a Free State.” Militia’s purpose is not political, legal or otherwise peaceful in nature. So, while a Militia may not actually use force in a given situation, its purpose is to use force when necessary, and under what circumstance can one imagine a Militia not using force in a “Titanic” situation of society as presented by Dr. Vieira? And what world experience can he point to show that the Militia’s purpose does not require or entail violence?
6. Elliott, Constitutional Conventions and the Deficit, 1985 DUKELJ at 1080.
7. Elliott, Constitutional Conventions and the Deficit, 1985 DUKELJ at 1082-83, citing 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 121 (M. Farrand rev. ed. 1937).
8. The book, Union & States’ Rights, proves this point well.

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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

E-Mail: tim@libertydefenseleague.com


 

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One important role of the amendment process is to correct judicial errors, just as the Eleventh Amendment corrected the Supreme Court’s decision in Chisholm v. Georgia and the Fourteenth Amendment correct Dred Scott v. Sandford.