PART 1 of 2
Timothy N. Baldwin, JD.
March 21, 2014
“Caution and investigation are a necessary armor against error and imposition. But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity.” -Alexander Hamilton, Federalist Paper 31.
Tom DeWeese expressed his opposition to using Article V in an article entitled, Some Thoughts on the Article V Issue. I respect Tom and what he has done regarding liberty issues, but I believe his logic and approach to Article V is flawed. I believe Hamilton’s description (above) of the Constitution’s opponents in 1787 applies to Article V opponents today.
Tom offers four reasons for opposing Article V:
They don’t follow the Constitution anyway, so they won’t follow
2) George Soros, or other “global elites,” are going to ransack the convention and force the States to ratify a Progressive constitution;
3) Tom is concerned of the tactics of promoting Article V; and
4) Tom is concerned that Article V advocates are using “big names” to promote Article V.
I will address each of his reasons in Part 1. In Part 2, I will address premises Tom uses to reach his conclusion. His premises follow:
Tom claims that the “original document [Constitution] has been basically
put in a museum…and forgotten”;
2) Tom admits, “Something has to be done” but claims we “can wait to try to elect the right kind of representatives in Congress and the White House”;
3) Tom admits that proposed amendments to limit federal power would be good, but denies its usefulness; and
4) Tom provides what he believes in the answer: education.
Tom’s Four Reasons for Opposing Article V
1) “They” don’t follow the Constitution anyway, so “they” won’t follow any amendments. Tom states,
Article V advocates, and Conservative movement in general, will readily tell you that the real issue is that our government, from the White House, to Congress, to the Supreme Court, are failing or refusing to follow Constitutional Law. They ignore it. So, say Article V proponents, that’s why we must amend the Constitution to assure our freedoms are guaranteed.
This argument is weak, an over simplification of law, and a misstatement of reality. Moreover, experience proves it is wrong!
Immediately, Tom presents a logical fallacy. He claims that Amendments won’t work (even though they would become a part of the Constitution); yet he claims that the Constitution will work so there is no need to amend it. If they won’t follow Amendments, they most certainly will not follow the “as is” Constitution—for as experience shows, the courts more precisely follow Amendments than they do the original Constitution (which is discussed further below).
But Tom’s argument was used before in America’s history, and limited-government advocates rejected it. The first example of when Tom’s argument was tried and rejected was from 1787 to 1789, as the Constitution was presented to the people for ratification. The Anti-Federalists believed the Constitution alienated too much State sovereignty in favor of the federal government. Thus, the Anti-Federalists pushed to amend it in 1789 to limit the federal government so the States could directly impact the Constitution. However, the Federalists opposed amending the Constitution.
The Federalists used Tom’s argument and said that the Constitution “as is” was sufficient to guard the States against federal encroachment. Illustrating this argument, Madison said in Federalist Paper 32,
[A]ll authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution.
Madison continued, stating, the Constitution provided its own “method of interpreting” the powers of the federal government. He said,
This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary. (Ibid, emphasis added.)
But the Anti-Federalists did not trust the Federalist argument. They knew amendments were necessary to safeguard their liberties and rights. At the forefront of the 1789 Article V convention movement were Thomas Jefferson and Patrick Henry. Their Article V convention effort is an important observation because despite their great distrust of the federal government, Anti-Federalists maintained that federal courts would give effect to Amendments protecting their rights.
Congress did not want the Anti-Federalists to strip the federal government of its power, so it proposed ten amendments, which became known as the Bill of Rights. Their tactic was clearly beneficial to protect liberty. Were it not for this Article V movement, Congress would not have limited its own power, even in 1789.
Since we grant that the Anti-Federalists were justified in pushing for Amendments, including calling an amendment convention, this begs the question: what justification did the States have to call an Article V convention in 1789 that States don’t have today? Why can we see the benefit of Amendments in 1789, but refuse to admit the benefits of amendments today? This makes no sense. The Anti-Federalists distrusted the federal government as much in 1789 as people do today, and none of them pushed for State nullification before pushing for an amendment convention. Thus, admitting the necessity of the Bill of Rights necessarily admits the necessity of any amendment to correct federal action.
Therefore, the Founders expressly rejected the argument, “we don’t trust the federal government; they don’t follow their limitations now; so Amendments will not change their actions.” Instead, they knew the importance of injecting the people’s political will into the Constitution, which provides a moral and political foundation for the States to take further action if the federal government blatantly dishonored the Amendments.
Too, let’s look at what Jefferson and Madison said specifically about Article V. Put plainly, they exclaimed that the States should use Article V to correct federal breaches of authority. This necessarily means that they knew that the “just enforce the Constitution” view did not reflect political reality.
Madison said in 1830,
Should the provisions of the Constitution as here reviewed be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U. S. the final resort within the purview of the Constn. lies in an amendment of the Constn. according to a process applicable by the States. (source) (see also, “Madison, Jefferson and Henry Supported Article V.”)
Jefferson said the same thing in 1789,
Whenever any two of the three branches of government shall concur…that convention is necessary for altering the Constitution, or correcting breaches of it, a convention shall be called for the purpose (Federalist Paper 49).
Of course, some will continue insisting that State nullification is the answer and not Article V. So, why do they refuse to use State nullification for a “runaway” convention? If State nullification is so effective that it is the premier remedy of bringing our country “back to the Constitution,” then it is also the answer to a “runaway” convention. But if nullification will have no effect on a “runaway” convention, why would it have any effect on a “runaway” Congress?
Why do they insist on nullifying “illegitimate” federal laws but refuse to nullify a convention’s “illegitimate” proposal to the States? This does not add up. Likewise, for those who believe the State militias have the authority to enforce the Constitution, why aren’t they proposing that the militia prevent the conventions from “running away” as applied to their States?Does State nullification and sovereignty apply to all unconstitutional acts except Article V?
In truth, the States’ sovereignty displayed in Article V allows them to protect the amendment process, as much as the Tenth Amendment, if not more. Constitutional scholar, Nick Dranias of the Goldwater Institute, presents the States’ plan for this.
These truths, of course, completely invalidate Tom’s argument that the States shouldn’t have to amend the Constitution to correct the federal judiciary decisions and that all the States have to do is “enforce it.” The Founders demonstrated this in 1795 when they ratified the Eleventh Amendment to correct a United States Supreme Court decision, Chisholm v. Georgia, 2 U.S. 419 (1793), which the people determined violated State sovereignty. The difference between them and us is they were willing to amend the Constitution to correct that breach. We, however, have been too scared, irresponsible, lazy, or something.
See these related articles that discuss this subject further:
2) George Soros, or other “global elites,” are going to ransack the convention and force the States to ratify a Progressive constitution. Tom says,
Progressive groups like the Open Society Institute, the Center for American Progress, and the American Constitutional Society, to name a few, all groups funded by George Soros, are behind a movement for a more "Progressive Constitution." They are simply not going to let conservatives have the playing field to themselves. They will use every trick, spending every dollar in their bulging war chests, to assure they control the process.
First, let’s look closer at plain facts to dispute Tom’s theory. If global elites have wanted a constitutional convention to destroy liberty, why haven’t they used their money, power and influence to accomplish this already? If Congress wants more power and believe they would get it through a constitutional convention, why haven’t they called a convention already given that the States have sent Congress hundreds of applications to call a convention?
That Congress has never called a convention of States shows that global elites and Congress DO NOT want a convention or FEAR the people’s response to a “runaway”. Regardless, they know the outcome would be unfavorable to them.
Alternatively, it proves that Article V is a convention only for proposing amendments, because 2/3 of the States have not applied for a convention on the same subject. Either reality undermines Tom’s theory and shows that using Soros is merely a scapegoat to avoid constitutional responsibility.
Tom’s argument states, we, as Americans and States, are controlled by Soros and the like, and that Soros will force the States to ratify a socialist constitution. I completely disagree. However, if it is true that Soros and global elites control the minds and hearts of 2/3 and 3/4 of the Americans and the States, then how can Tom expect to educate America before Soros completely destroys this nation (assuming he hasn’t already)? This makes no sense.
While Tom claims we need to educate the people, the reality is, he would likely never find the American people educated enough to defeat the “global elites” and thus would never advocate using Article V to limit federal power—in any case! This is demonstrated by the John Birch Society, which has been in existence since the late 1950s to educate America; yet they are as opposed to Article V today as any group can be. They still believe America is too stupid to correct the federal government.
With this approach, we are on a never-ending circular ride of global-control, and the only proposed way to get off the ride is to educate a sufficient number of Americans (to whose standard?). The Founders did not use this tactic in politics. They did what needed to be done, despite their belief that many Americans were “dupes of pretended patriots.” Necessary political action cannot wait for every American to be on the same page as Tom or other liberty leaders. Leaders need to show people where to go and why—and the Founders put Article V in the Constitution for that very reason.
Notably, one of the leaders supporting Article V is Rand Paul (R-KY). He openly supports the States using an Article V convention to control the federal government, and he is the frontrunner in polls for 2016 President. Tom overlooks the tremendously-powerful influence Rand can and will have on the Article V movement. Tom emphasizes the power of Soros over the power of a potential U.S. President—one that will undoubtedly be an exciting choice for millions Americans, especially the Tea Party!
Does Tom think that Rand’s (and his supporters’) persuasion of public understanding is somehow irrelevant to what will happen when the States convene to limit federal power? And what about other conservative leaders who have hundreds of millions of followers and are advocating the same agenda as Rand Paul? They are educating the people such that any Soros-attempt to the contrary will be met with sufficient and formidable resistance—a resistance that will grow the liberty movement, not thwart it.
Still, if Tom is right about us being controlled by global elites, why does Tom suppose that we live under a legitimate form of government under the Constitution at all? Does he think that Soros is not already controlling every aspect of government? The rabbit holes just keep getting deeper and deeper. Under Tom’s approach, there is no presumption of legitimacy in any realm of our constitutional system. The whole thing collapses. There is no hope in any remedy.
What Tom fails to consider is that a federal constitution is not just a document defining government powers. It is an Article of Union that connects people and States in the same political system, under the same central authority. This is significant to our choice of remedies. For example, when the American colonies declared independence from Great Britain, they had a great constitution. Much of the American constitution was framed around the British constitution. As Hamilton declared in the Constitutional Convention Debates of 1787, the British Constitution was the best the world had ever seen. Indeed, Englishmen considered it to be a grand constitution and worth enforcing.
So, were they wrong for leaving the British constitution and forming their own union under their own authority? Should they have continued “fighting for the constitution”? No, because they knew that the British constitution was, practically speaking, about political connection to an enslaving power as much as it was about legal rules of the constitution. If the colonies would have taken Tom’s approach (i.e. “just enforce the Constitution), the colonies would have never separated from Great Britain. Instead, they would have perpetually asserted their rights under their constitution—until their assertion were mere hollow words.
Thankfully, the Founders provided us with a peaceful manner to accomplish the same results as the colonies, but without having to use violence and force .I prefer we use this amendment process to do exactly what the Founders said: correct federal breaches of the Constitution.
3) Tom is concerned of the tactics of promoting Article V. He states,
I have a great concern over how the Article V Convention is being promoted. I have been an activist all of my life. I have seen pretty much every tactic used by powerful forces who are trying to railroad the people…A deliberate attempt to silence opposition should cause people to question the motives of the perpetrators.
What is interesting here is Tom claims Article V opponents are somehow being silenced. Yet Article V opponents have managed to prevent an Article V convention since 1789. So who is really silencing whom?
Still, Tom only gives hearsay examples of these “tactics”, none of which are significant to how Article V actually works. Tom’s examples are not the standard to judge this process. But let’s balance the sheets: I see Article V opponents trying to silence Article V advocates. Regardless, the real discussion of Article V takes place in the State legislatures.
Take Georgia, for example, that recently passed Article V legislation. They introduced the bill, sent it to committee, took public comments, and put it to general vote. Media covered the bill, both pro and con. Georgia constituents and the American public had direct access to these legislatures to express their desires. Interest groups posted their blogs and websites on the subject. Most certainly the John Birch Society was there vigorously opposing it. Information, both for and against, was widely accessible.
Both the House and Senate overwhelmingly passed it after candid, open debate through the State’s sovereign legislative function. And when you read Georgia’s application for an Article V convention, it clearly intends to do what Tom hopes we can do: limit federal power. Yet he claims this is a bad thing and Soros is controlling Article V. This makes no sense.
Too, the same thing that happened in Georgia is happening throughout the States for the same purpose: to control the federal government. This is not subversive or questionable tactics: this is free, open and fair legislative process. It is about time Article V is getting its day in the sun—the last time being when Anti-Federalists tried to use it to control Congress, which ended up creating the Bill of Rights. Article V pressure is long overdue.
4) Tom is concerned that Article V advocates are using “big names” to promote Article V. He states,
The proponents of Article V take great comfort in reciting the powerful names of those supporting their efforts
Tom uses big names too to oppose Article V. He uses Chuck Baldwin (my dad) to support his view. Also, Tom uses Soros to scare people to think that the States will BE FORCED to adopt a socialist constitution. However, in reality, all the States introducing and passing Article V legislation are doing so with the expressed purpose of correcting and limiting federal power. Thus, these conspiracy theories go out the window.
If Tom uses Soros to advocate his position, he must accept that the States are pushing Article V to LIMIT federal power, and people and groups like Rand Paul, Sean Hannity, Glenn Beck, Mike Huckabee, TeaParty.org, Mike Farris, Mark Meckler, Rush Limbaugh, etc. support limiting federal power, not expanding it. I know not all “true conservatives” like these notable persons. But what is obvious is, they are tremendously helping to prevent whatever Soros has in mind, and Tom could likewise help this effort if he educated people correctly on the subject.
Conclusion (Part 1)
Tom’s reasons to oppose Article V simply do not outweigh the evidence and logic to the contrary. Of course, it is not easy to change one’s mind on such a serious topic; but as Hamilton stated, there comes a time when “caution and investigation” are taken too far, and it begins to defy logic and the necessity of political survival. This is where I see Article V opponents are now. For part two click below.
© 2014 Timothy N. Baldwin, JD - All Rights Reserved
I think Patrick Henry regretted not attending the constitutional convention
of 1787 as he was delegated to do; for certainly his oratory would have
had an impact on how the convention viewed the Constitution. Jefferson
couldn’t attend because he in France.
2. However, that was Chuck’s position in 2009. Perhaps things have changed a bit for Chuck Baldwin after he has thought through Article V, studied the scholarship more, and considered our experiences and circumstances more. I assume Chuck will assert his position on Article V in the near future.
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