A continuing series of discussions of Mark Levin’s new book,
The Liberty Amendments: Restoring the American Republic
(Discussion #19 – The Kooks and Neoconfederates Edition)
Last week Brion McClanahan penned a column for the Daily Caller that encapsulates the unusual, and frankly bizarre, resistance to an Article Five Convention among certain Constitutionalist/Conservative groups. This represents an opportunity to examine what is going on with these sorts of criticisms. (In order to discuss this, we shall refer to these critics, fairly or not, as “Conservative Critics.”)
When Mark Levin announced the release of his proposals for an Article Five Convention, some prominent conservatives chose to reject it out of hand (otherwise known as “they didn’t bother to read it”). Without playing psychologist here, it seems likely that such an impetuous reaction is due to the ever-looming specter of the dreaded “Runaway Constitutional Convention.”
Run Away!
Those of you who are relatively new to the Originalist movement might struggle to appreciate the level of concern that had been deeply impressed into the American psyche by writers and popular commentators prior to 1980, who warned stridently about the dangers of a “Con-Con.” However, a sloppy form of confirmation bias crept in to our societal knowledge base, thanks to three facts:
- Article Five of the US Constitution is quite short
- Research is hard
- Until the rise of Obama, relatively few people cared about the issue
Because the text of Article Five is so short, the belief that you can understand it completely just by reading it is a compelling temptation. When you have so many “experts” warning over your shoulder about the dangers of a “runaway Constitutional Convention” it’s difficult to doubt that they obviously mean the type of Convention specified in Article Five. This error is compounded by the fact that schools do not teach this subject, and few people have time to research it on their own.
The net result has been a form of short-circuiting of our ability to reason on the subject, thanks to the purportedly common knowledge that we should never, ever, go near a “Con-Con.” This form of confirmation bias goes hand in hand with knee-jerk reactions and stridency of warning (“You’ll put your eye out!”).
But the entire difficulty arises from a hasty generalization over the term, ‘convention.’ In other words the typical thinking is: if there was once a “Constitutional” convention, then any successive convention must also be of that same sort. This erroneous conclusion becomes a belief, the belief becomes sacrosanct, and reason need not be employed. A very short circuit indeed.
Once you realize that the Framers assumed no one would forget about the nature of the many conventions held prior to the drafting of the Constitution (nor that our educators would fail the citizenry so badly); and once you realize that some people have a vested interest in keeping you from changing the status quo, then you are able to look further into the concept of “a Convention for Proposing Amendments” without being blinded by preconceived notions.
This is in fact what Levin has done, and also what has been done by several other leading proponents of the Article Five Convention. Rob Natelson, Randy E. Barnette, and Lawrence Lessig, to name a few among many, are also distinguished writers and educators who have delved into the history of conventions held by the states, and who have determined that the framers provided a clear pathway to peacefully amend the Constitution without creating an uncontrollable process. But to people who have the short-circuit firmly in place, and are determined beyond any rational discourse that any and all conventions are equivalent to the dreaded Con-Con, this knowledge is unattainable.
However the fact remains that the Framers did provide a peaceful, lawful, and controllable process by which the states may change the Constitution by Amendment. Nothing about this process is equivalent to a “Constitutional Convention.” To see more about why this is so, I refer you to discussions One, Two, and Four of this series.
Thus, the first major objection of the Conservative Critics, that Levin’s proposal is nothing more than a Con-Con and must be avoided at all costs, is simply bad reason on their part. It does not hold up to scrutiny. At this point, anyone still posturing over the Con-Con aspects of this entire endeavor is clearly out of touch with what the effort is all about.
Unfortunately such glaring facts are no deterrence. The Conservative Critics are also pressing forward with a claim that Nullification is the “obviously” better choice, rather than risk everything (again this is their language, not reality) on a Con-Con. They come up with many attempts to “prove” this, with much being made over Colorado’s recent legalization of marijuana.
Setting aside the problems of relating something of vital national importance—Restoration of liberty—to something associated mainly with listlessness and a tendency to lose track of one’s thoughts, nullification arguments come with some serious problems. For one thing, acts of nullification involve a hodgepodge of minor laws that do not cohere into one, single plan of action for the states as a whole (although the states could act in concert, by forming Compacts). Efforts at nullification have been of both incredibly narrow focus (pot is legal in Colorado!) to very broad focus (issues regarding the Commerce clause and the Second amendment, for example). This results in an overall lack of focus.
Despite the lack of focus, nullification might be tenable if not for the fact that each state law passed (Compact or not) is susceptible to being overturned by the Supreme Court. This is exactly what happened with Roe v. Wade. In fact, it happens with enough regularity that states can no longer be certain of laws that have been on the books for years. Nullification is haphazard-in/haphazard-out. The current drive toward totalitarianism increases the uncertainty factor.
Clearly, in order to secure liberty and prosperity we need changes that last.
Unfortunately, the Conservative Critics seem less focused on the end goal of Restoration and more on methodology. It’s as if the movement has become more important than the end goal. If nullification or interposition really worked to either secure the borders or end Obamacare, those of us who support the Article Five Process would be thrilled. The vehemence of the rhetoric of the Conservative Critics makes it doubtful the opposite case would ensue.
In the early weeks after The Liberty Amendments was released, we saw articles claiming it to be dangerous, short-sighted, fraudulent, and now it’s supposed to be a form of “Fair Weather Federalism.” To make these claims seem even more bizarre, they are often predicated on assumptions that, at best, are open to less demeaning interpretation and at worst, seem to be fabrications having little to do with the case in point.
For example, the McClanahan article (once it gets beyond its two paragraphs of ad hominem) begins to make the case that the Article Five process somehow ignores or is unaware of the sovereignty of the several states. The reality of course is that the Article Five process depends completely upon this fact, and is written to encompass the right of the states to alter the binding compact which joins them in union. More importantly, the Constitution itself would not have been ratified if the states did not have this particular language written to secure their sovereignty from the beginning.
So we are left with a dilemma of sorts. If we are to believe that these Conservative Critics are on an equal footing with proponents of the Article Five convention, then why are their arguments larded up with strange accusations of fraud? Why would serious scholars of the Constitution operate from assumptions about the Article Five process that could easily be disproved with the time-honored technique of thoroughly reviewing it? If they wish to save the union instead of hastening its demise, why would they be pressing for actions that drove us closer to war in the past, rather than away from it?
War might indeed be inevitable, given the way the left and their fellow statists among the right continue to drive toward totalitarian control over the American individual. But why would one not attempt the one, unchallengeably legal method to prevent such carnage before taking the plunge directly into nihilism? Why would these Conservative Critics claim no one will debate them, when the debate is open, ongoing, and vital to our survival?
These questions illustrate why the Conservative Critics come across as “neoconfederates and kooks” rather than as men and women engaged in the serious attempt to restore what the Founders gave mankind. The “kookiness” doesn’t derive from the concepts of nullification and interposition. It derives from the vehemence of their arguments, and the strange challenges they issue regarding the willingness to debate.
The debate on these concepts will outlast the Union. But the grand experiment conducted by the Framers and the Founders was to secure the blessings of liberty for all mankind here in these United States. That experiment will not continue, and Liberty will perish, if we don’t work together to restore what the Framers gave to us all.
Please make a thorough study of these issues. Familiarize yourself with the terms used by the Founders. We truly do have one last chance to peacefully preserve the union. It lies within the Article Five second process for amending the Constitution.
Please take some time to research the news about legislators in your state, and then update the scoreboard at the ArticleFiveProcess website.
We can’t light up the heat map without data, and with over 7000 state legislators, I can’t track them all down myself (Hey, I’m good, but not that good)!
Previously:
Discussion #18 – #Shutuppery
Discussion #17 – Why All The Lies?
Discussion #16 – A Few Quick Notes
Discussion #15: Our Cities: The Real Misery Index
Discussion #14: The Missing Balance and the Many Applications
Discussion #13: Activism, and the Scope of the Problem
Discussion #12: Cutting Back The Bureaucracy
Discussion #11: ArticleFiveProcess site news
Discussion #10: The Article Five process is how we go on offense
Discussion #9: the filthy habit of continuing resolutions
Discussion #8: Naysayers
Discussion #7: Tracking Our Progress
Discussion #6: Amendments on Spending and Taxes
Discussion #5: How much power do the states have?
Discussion #4: What If They Hijack the Convention?
Discussion #3: An Invitation to Our Friends on the Left
Discussion #2: Run Away!
Discussion #1: Zombie Doctrine, Tactics, and the Liberty Amendments