Playing Fast and Loose with History

A few years ago an edition of the Summerville Journal Scene (Local Newsprint) carried a Letter to the Editor by a local opponent of the Convention of States Project. The author of this LTE happens to be the co-chair of The Summervlle 9-12 Project, which bills itself as a "public education group founded upon nine principles and 12 values of America’s founding".

As a Constitutional historian, I'm staggered by the quantity of historical error in this article and lack of basic understanding of historical facts. It's one thing to be opposed to something and have an opinion. It's an entirely different matter to write an article strong on emotion and devoid of Constitutional and historical accuracy in almost every respect. Should we not hold those that claim to be Constitutionalists to the same standard that we hold the left? To do otherwise is utter hypocrisy. And the group this author co chairs bills itself as a "public education group". The Irony.

To be clear, I have no problem with the authors opposition to the Convention of States Project. I disagree with her, but she is free to opine on her opposition. What I take issue with is playing fast and loose with Constitutional history and facts. When someone is specifically referencing Constitutional history as part of their argument, and claims to be a Constitutionalist, they have a responsibility to exercise care to use the historical record rather than simply to emote and throw spaghetti on the wall so to speak with baseless charges about Constitutional history. I will deal with the issues raised or implied by the author concerning the Constitution that are totally inaccurate.

First, I want to address the authors assertion that somehow the Constitution that was produced at the Philadelphia Convention was illegitimate. The author states “Our own Founding Fathers threw out the Articles of Confederation at their Constitutional Convention. They also reduced the number of states needed to ratify. Yes. America’s first Convention of States was a run-away convention.”

This is worth spending time explaining because the “runaway convention” argument is at the core of most opposition to an Article V Convention today. Before I even address that statement, honest readers would have to ask wouldn’t this assertion then make the document we revere today illegal? If those men did disobey their charge at Philadelphia, wouldn’t that make them less than honorable? The author doesn’t explain those inconsistencies because the “runaway convention” myth of 1787 is nothing more than the biggest historical lie ever told in our nation’s history. The truth of the matter for anyone wanting to do just a little historical research is that those men completely OBEYED their charge and amended the Articles of Confederation to meet what they called the “exigencies” of the union (their word), or the emergency in the union to use modern day vernacular. I cannot tell you how many times I have had someone tell me that “they were just supposed to amend the Articles of Confederation”. Then I ask them where they got that from…and they tell me someone else told them that.

Honest historians and Constitutionalists do not have to wonder what the framers were charged to do at Philadelphia with the Articles of Confederation in 1787. James Madison dedicated an entire essay (known today as Federalist #40) to explaining in painstaking detail what happened at that convention. In Federalist #40 the primary source writer of the Constitution tells us exactly what the commissioners to Philadelphia were charged to do. They were charged to “devise such further provisions as shall appear to them necessary to render the Constitution [Articles of Confederation] of the federal government adequate to the exigencies of the Union”. The fact of the matter is that they were given broad latitude to save a young nation that was in grave danger do to the failure of the Articles of Confederation. And by the way, logic tells us that if you make one amendment or 500 amendments, you still amended the document.

This is probably the root of most of the error in understanding about an Article V Convention. This erroneous viewpoint has absolutely zero basis in fact when the actual historical record is looked at. And to be honest, it is a sad state of affairs for someone that claims to be a Constitutionalist to be that ill informed. The historical record on what occurred at Philadelphia and even at Annapolis the year before is voluminous. It baffles me how anyone can spend time defending the Constitution and the 10th Amendment, but then at the same time absolutely disparage the work of the framers in Philadelphia. If the framers went “rogue” at Philadelphia as asserted, then we have a completely illegal document today. You cannot have it both ways, you cannot purport to love and defend a document….and at the same time declare it to be illegal. Saying that the author is disparaging the framers is not overstated, the position that the framers “threw out the Articles” reveals that the author has either not been introduced to Federalist 40, or believes Mr. James Madison to be a liar. Both are bad options by the way for someone writing and opining about Constitutional history. In Federalist 40 Madison point by point explains every step of the Philadelphia Convention beginning with the call from the previous meeting in Annapolis. There is so much misinformation out there about this, it is truly sad, we live in an age where accurate historical data is available literally at our fingertips.

The Philadelphia Convention was given the solemn charge from the Annapolis Convention to “render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION.” In other words, there was an emergency in the Union. History of the period after the ratification of the Articles and post-Revolutionary war reveals to any person wanting to look at the record that the failure of the Articles to address things like Commerce had reduced the 13 States to economic warfare and the union was coming apart at the seams. The British were eying their former colonies from across the Atlantic ready to retake them. Hence the word “exegencies” and “preservation” in the call. The framers were given the charge to basically do whatever it took to preserve the union. However, this did not mean that they just did whatever they wanted. They took steps to insure that the Articles were followed, even down to the ratification process.

The authors statement about the framers going rogue and reducing the amount of states to ratify is also not only misleading but flat out false. The author fails to mention after that slanderous charge either unknowingly or intentionally that the exact language in Article XIII of the Articles of Confederation require that the any changes be “confirmed by the legislatures of every State”. This provision was absolutely followed to the letter. When the draft Constitution was sent out to the 13 states under the new ratification procedure outlined in Article VII of the Constitution, it was sent to every single state. Article VII of the Constitution states that “The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the same. While it is true that there was a process change between the Articles of Confederation and the United States Constitution, a look at the historical record clearly reveals that the process was followed to the letter. Since the process changed from “13 legislatures” to “9 conventions”….every state had to approve of the change in order to get sent into convention. All 13 states approved as evidenced by the fact that all 13 sent the Constitution into state conventions. Even Rhode Island and North Carolina, who initially held off on ratification….approved of the change as evidenced by the fact that their legislature sent it into Convention. At any step of way, there were any number of ways for the states to reject the process change….but all complied. None of them refused to send it to Convention. If the states or the Continental Congress had felt that the process was violated, the record would show that…there is no such record of any state or the Continental Congress doing that.

It is ok for people today to fear the Article V process; honest people can disagree on its use. But it is not ok to make up or revise history to support that fear.

Don’t take my word for any of this, research it for yourself. Don’t only read Madison’s Federalist #40, read Madison’s letter to Edward Everett dated August 28, 1830 where he details the fact that the Article V process is THE way for the states to defend the Constitution. He clearly explains that the ultimate way for the states to protect their 10th Amendment rights is to come together in convention and reset the language that has been perverted.

The author goes on to state: "Advocates for an Article V Convention merely switched words. What was an Article V Constitutional Convention, they now label a “Convention of States.”

This is another statement devoid of truth and historical perspective either through lack of knowledge of history, lazyness to conduct adequate research, or an attempt to smear the proponents of the Convention of States Project by implying that the terminology "Convention of States" is somehow a newly made up phrase to mask some nefarious agenda.

Again, just a smidgen of scholarly research would reveal that "Convention of States is the historically accurate terminology for a state led amendment proposing convention. The very first application under the new Article V of the newly ratified United States Constitution was filed by the state of Virginia in May of 1789 to propose a Bill of Rights. Madison being true to his word and promise conversely proposed those amendments in the 1st Congress in June of 1789 and an amendments convention became unnecessary. Virginia not waiting for this filed the very first application for the states to do it in May...and in that application, the very first application under Article V they specifically referred to such a convention as a "Convention of the States, they never used the term "Constitutional Convention because everyone at that time knew the difference.

It is interesting to discover that the root of the “runaway convention” actually has its genesis with the far left in the early 60’s.

The author of the article also states: “Unfortunately, the Left and the Right have been working together for an Article V convention for the first time in history.”

She has been saying this for almost 4 years. When we started this effort, that was akin to throwing the proverbial spaghetti against a wall to see If something would stick. Today, four years after the Convention of States Project was founded, the actual proof Is exactly the opposite. Just last week Hillary Clinton was railing against the “far right” initiating an Article V convention and railing against it. About 5 months ago, 230 Soros backed groups led by the heavily Soros funded group “Common Cause” signed a statement vehemently opposing an Article V Convention. Here in South Carolina, when the COS resolution came before the full SC Senate Judiciary for a vote in 2015, every single Republican voted for it and every single Democrat voted against it. If the left wants a Convention of States, they have a strange way of achieving it.

September 15th and The 230 Year Old Message From Col. George Mason

A very important day in United States Constitutional history. The delegates to the Philadelphia Convention (today referred to as the Constitutional Convention) had been going over every section of every article in the final months of the Convention in 1787. 230 years ago, on a Saturday, just two days before the Convention in Philadelphia completed its work, we find a gem in the notes of James Madison, who took extensive notes just about every day of the convention. This item that I refer to as a “gem” is little known and hardly talked about today. On September 15, 1787, George Mason of Virginia (referred to in Madison’s notes as Col Mason), was alarmed that in the text of Article V (the provision for making Amendments to the Constitution), Congress would have sole power to propose amendments; Mason insisted, as he did earlier in June, that the states have authority to call for conventions. Mason explained that an oppressive Congress would never agree to propose amendments necessary to restrain a rogue, tyrannical legislature.

"Col. Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, 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.” (See Madison’s notes 15 Sep 1787).

To make sense of that, you must understand that earlier in the summer when the issue of even having an Amendment process was first brought up as a provision in the Constitution, many of the delegates thought it unnecessary. Madison’s notes record the following on June 11^th: “Col. MASON urged the necessity of such a provision [Amendments]. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account…”.

Then by the time the convention reached its final days in mid September, the Amendment provision had been added as Article V, and the provision had two methods; the national legislature (Congress) could propose Amendments and the states could request that Congress propose specific amendments. However, both methods were left in the hands (power) of the national legislature, that’s what Mason meant when he referred in the first quote above as “both the modes to depend, in the first immediately, in the second, ultimately, on Congress”. Mason had objected to this back in June and now as the convention drew to a close, he rose to his feet to forcefully object with his reasons stated above (“It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account”). Madison’s notes of 15 Sept tell us that Mason’s motion was accepted and the language was changed in order to require [mandate] Congress to call a convention upon application of 2/3 of the states.

It is noteworthy to point out that this process does not call for a Constitutional Convention; the language specifies calling a convention for the purpose of “proposing amendments”…to the existing Constitution…it would still require 3/4ths of the states (38) to ratify any amendment proposed in this convention.

We owe George Mason and the other framers a huge debt for this...they had the foresight to understand first of all, that we needed an orderly process in which to amend our Constitution (“regular and Constitutional way than to trust to chance and violence” – Mason 11 June). Secondly we owe them a huge debt for recognizing and understanding the depravity of man and the extremely intoxicating effects of years of power in the hands of the same people (hence a need for term limits) and that these power intoxicated occupants of the United States Congress would “abuse their power, and refuse their consent” (Mason 11 June) to any amendments that would “injure” themselves and return powers never intended for the national legislature or any of the other branches for that matter, they would never take steps to return that power on their own to the rightful owner, the states/people (“no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive” – Mason 15 Sep).

The least we can do as citizens of this great nation today, citizens that do not seem to want to be bothered with taking the time to understand the underpinnings of their liberty, the least we can do is take the time to understand what the framers of this amazing document did for us. When the framers agreed on September 15^th, 1787 to change the text in Article V, they in effect were telegraphing a message to us in 2017, a message to us showing us the way back inside the fence of the Constitution, a way back to what Thomas Jefferson called the “chains of the Constitution”.

Limited Government under The Rule of Law and "Common Sense"?

You can get a good picture of someone's understanding of Constitutional Originalism by listening closely to what they want to do with constitutional powers.

Something is not Constitutional simply because you want it or like it. Conversely, something is not unconstitutional simply because you don't want it or don't like it.

Constitutionality or unconstitutionality is based solely in the text of the Constitution, its enumerated powers for each branch (Art I, II, and III), it's structural and process mechanisms, etc...).

I see so many folks just simply throw "constitutional" or "unconstitutional" into their positions simply because they like or don't like something. If the Constitution is silent on an issue that means the 10th amendment is controlling and therefore your state, city, municipality is free to do it whether you like it or not. If you have an issue with what your state is doing, make sure you understand that your recourse (redress) is in your state legislature.

When you hear someone say "the Constitution does not authorize X, but does not forbid it either", that is huge red flag to a completely erroneous view of the framers intent for the Rule of Law that they created when they carved out powers to create the national government.

The Constitution was not designed with prohibitions in mind, "prohibitions" are implied once one understands the the primary design. It was designed to create and LIMIT the federal government. This fact is abundantly clear to any novice reading of the framers and their debates during the Philadelphia convention of 1787. To take a position that something is not "prohibited" in the federal Constitution and therefore permissible is to follow the liberal interpretational view of a "Living Constitution". The Constitution is not open for doing what is "not prohibited". Logically this would mean a blank check. Madison explained this clearly in his Federalist #41 expose of the General Welfare clause in Article I, Sect 8. The essence of  the starting point for any look at enumerated powers is this most basic understanding of the purpose and intent of the text of the Constitution.

This kind of thinking, the idea that we get to do things that are not enumerated just because one thinks they know what's best for any given situation is PRECISELY what has gotten us into the morass of debt spending that we see today.

Our constitution was not designed to be interpreted to expand powers by using our "common sense. It is to be interpreted as it is written, a document creating a central government of limited powers. Period. Although the idea of using "common sense" to expand powers sounds good to some...the logical question that honest people have to ask is who's "common sense"? The progressives would tell you that they are using their "common sense". Who then is the arbiter of "common sense"? The answer is no ones because that opens the document up to the whims of men and completely eviscerates the intent for limited powers under a rule of law.

If someone thinks they have the lock on "common sense" when it comes to interpreting powers under the Constitution let them use the rigorous process created to address deficiencies in those powers....the constitutional amendment process. They don't get to do it on their own.

For those that take the Romans 13 command to "obey the governing authority" seriously (which should be all who claim Christ). Realize that the Romans 13 governing authority in our nation is the United States Constitution. It is the highest law of the land. Also realize the folly of taking matters into one's own hands when someone determines that they know better and that "common sense" tells you that we can do something that is not enumerated as a power under that governing authority. Any action outside of enumerated powers simply because one thinks that it's "common sense" violates this bedrock constitutional principle.

Lastly, this ought to also cause the Christ claimer to recoil because of the warning given in Judges 21:25 where "everyone did what was right in his own eyes." The incredible design of our founding document reveals that it was intentionally designed to prevent "everyone doing what is right in their own eyes". This is another one of the evidences of why the Biblical Worldview leads us to an originalist interpretational viewpoint of the United States Constitution.

Reject any thinking from this perspective if you claim to be a Constitutionalist and if you claim to respect the rule of law, the Romans 13 "governing authority", and the Biblical Worldview of limited civil government.

This is PRECISELY the kind of thinking that has us untethered and adrift from the United States Constitution.