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Article Five Convention Applications: Nothing Unusual

A continuing series of discussions of Mark Levin’s new book,
The Liberty Amendments: Restoring the American Republic

(Discussion #14 – The Missing Balance and the Many Applications)

Note: I got to this late on Monday, then due to scheduling difficulties, I had to publish it in the early hours of Tuesday morning. Also, the dog ate my homework. – K-Bob

Mark Levin’s publishing house, Simon and Schuster, released his book in August of this year. Its reception in the eighteen weeks since then—three of them spent at number one on the New York Times List—has given a huge boost to the growing movement to restore the balance between and among the major divisions and branches of our Republic.

This balance was carefully crafted by the framers in the Constitutional Convention of 1787. It included not only the famous separation of powers in the federal branches, but also upheld the sovereign powers of the states as a counter to the tendency of governments toward centralization (and therefore concentration) of power. As we know, the balance conceived by the framers has taken major damage over the past century (especially including all of 1913). Once the states lost control over the growth of the federal components of government, the “strange attractor” of centralized power began the runaway process that destroys all Republics: the loss of fiscal restraint[1].

The best path we have toward a restoration of this balance is via the Article Five second process for amending the Constitution. Best, because it’s safe (as in, “It isn’t war”), legal (as in, “It’s the law of the land”), and rare (as in, “In over two-hundred years, no Amendment Convention has produced a ratified amendment”). But that rarity is not because of a lack of effort: every state has made application—at one time or another—to Congress, calling for a Convention for Proposing Amendments.

Despite what some detractors have been claiming, the call to hold an Article Five Convention is not something new, nor is it a novel approach. Applications have been made by various states beginning as early as 1789, when Virginia and New York saw fit to register Applications for an Amendments Convention. A quick scan of the Virginia and New York applications (which can be found at the article5library website) seems to indicate that they made them more on general principle that they could do so, and less on the need to address a specific call for amendment (although most state legislatures felt that the Constitution as ratified contained many defects)[2]. The point here is that many states have made applications[3] over the years, and many such applications are still considered to be “alive,” and waiting on the requisite number in order to cause Congress to call a Convention.



The reason so many Applications have lain dormant in Congress is that, defective or not, the Constitution has held us together as a Republic through many crises. With the lone exception of the Convention of 1861, the various calls for an Amendments Convention have not had a sense of dire urgency about them, and the needs they were trying to address were not national emergencies, even where they were considered vitally important. Unfortunately, dire urgency is now upon us, and if we do not restore the balance the framers designed, the Republic will no longer be a home to liberty nor to the notion of private property. The fundamental transformation will be permanent, and as with the failure of Congress to act after the Convention of 1861, civil war the most likely result.

Peace Convention 1861 excerpt

Detail from Peace Convention etching
from Leslie’s Illustrated Newspaper – Dickinson College collection

If you’ve been following the conversation, those alarming concepts are not new. However, despite the danger in which we find ourselves, many are still nervous about the Article Five process. It turns out that the reason for that nervousness has been a deliberate misinformation campaign aimed directly at you. You are not to be trusted. You are to go to sleep and trust the masterminds (as Levin calls them) to take care of all your needs. You cannot be trusted to choose the way your state representatives will vote. It must all be in the hands of the US Congress. You must fear a runaway convention, despite all the obvious deterrents built into the process. You must fear your state legislators more than your federal ones, despite the obvious corruption in the federal system. Most importantly, you must somehow believe that your federal representatives will listen to you more closely than your local ones.

Those fears are based on misrepresentation of the process. This misrepresentation appears to be due to two main factors: 1) The lack of interest in the subject since the Convention in 1861 failed to result in Congressional action to make changes that the states felt would help avoid the Civil War[4]; and 2) The wave of writing about Article Five in the 1960s that was full of historical errors (notably the lack of scholarship regarding prior Conventions and their importance in establishing the Constitutional Convention). The fact is, work by Rob Natelson and others has restored the missing scholarship by legal writers on the subject. As Natelson has pointed out, legal writers are rarely good historians, and good historians are rarely legal scholars. So by restoring the missing history of the many Conventions that were actually held since the Founding, we now know that a legal framework exists that creates an orderly, limited process for amending the Constitution.

Over the next few months, I urge people to take a little bit of time to familiarize themselves with the many conventions that have been held, and the hundreds of applications for an Amendments Convention that have already been submitted to Congress[5]. The process is not new, it must conform to the acts passed by the state legislatures limiting the items to be discussed (and how their delegations may vote), and the amendments that are so proposed must be ratified by at least thirty-eight states.

The biggest fear we face is what happens if we do not restore the balance. If we fail to reign in the federal government, collapse is inevitable.


Footnotes

1. Many would say that a decline in morality is the ultimate cause of a Republic’s failure. But a Republic in moral decline is a prerequisite to a loss of fiscal control. Moral bankruptcy leads to fiscal bankruptcy, and it is the latter that characterizes the structural failure of a nation.

2. These first two applications did result in additional pressure for Congress to get on with the promised Bill of Rights amendments. The Bill of Rights was a critical condition upon which many states agreed to ratify the Constitution. The history of state applications includes several instances where Congress decided to act instead of leaving it to the states. So in that light, the Application process has already achieved successes that are significant, even though no Convention was achieved.

3. As many as four hundred. you can see the list at article5library.

4. Few know the history of the many conventions held since the founding. One of the most notable was the effort by several states to attempt to head off the impending civil war, even though many states had already invoked secession acts. The Peace Conference of 1861 was held in D.C., and was not called by Congress under Article Five rules. Like the concepts embodied in secession and nullification, the states simply took it upon themselves to attempt a solution. The product of the Convention was a proposal to Congress to pass a seven point amendment. Congress did not do so (one possible reason is that Congress was awash in compromise proposals), and the one related amendment Congress did pass on its own was never ratified. So while the process was a failure on many levels (not the least, that it would have preserved slavery), it did show that states know how to conduct a Convention, and how such conventions proceed. Critical to success is for any such Convention to Follow The Law. In other words: use the Article Five second process as intended, and produce Amendments that go directly to the states.

5. Two important resources here are James Madison and the Constitution’s Convention for Proposing Amendments and Amending the Constitution by Convention. These articles are part of The Source Code. Once you read them, you’ll be up to speed.


Previously:

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

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