Treatise on
Twelve Lights

To Restore America the Beautiful Under
God and the Written Constitution

 

 

 

 

 

Struble’s remarks to accompany the fourth chapter [6½ minutes]
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Audio only!  Sound, not video_

 

Chapter Four_

INSURRECTION OF SUEDE –– PLAN A:

 

But when a long train of abuses and usurpations, pursuing invariably the
same object evinces a design to reduce them under absolute despotism,
 it is their right, it is their duty, to throw off such government,
and to provide new guards for their future security.
 
Declaration of Independence, 1776

When oppression renders a revolution necessary, insurrection
is the most sacred of duties.
  Marquis de Lafayette, 1790 

The people made the Constitution, and the people
can unmake it.  It is the creature of their
will, and lives only by their will.

Chief Justice John Marshall,
Cohens v. Virginia, 1821
19 U.S. 264 at 389


 

══ INTERACTIVE CONTENTS ══

 

Insurrection of Suede

 

The Article V Amending Provisions

 

Party Politics

 

The Article V Convention

Persuading the 7400

 

Crossing into Illegality

 

Conclusion

 

Appendices


 Chapter Four_

INSURRECTION OF SUEDE –– PLAN A:

            The rural revolt of 1786-87 led by Daniel Shays in western Massachusetts was a mere stick of dynamite compared to the nuclear devastation, as it were, that the post-1963 revolution has inflicted on the polity, economy and culture of the USA.  By February, 1787, Shays’ Rebellion had already been suppressed.  Still, the notoriety of the event served as the catalyst for the constitutional convention later that year in Philadelphia.[1]  How then can we suppose that in the 21st century a second constitutional convention would be medicine too strong, or somehow disproportionate to the disaster we face as a direct result of the ongoing postmodernist revolution?  What patriot would entertain such an un-American notion as the view that a counterrevolution is too extreme in dealing with the abuse of power, when indeed this nation originated in a Revolution that was mainly about the principles and the forms of power?[2]  And who can see the ongoing process of demoting and degrading the Constitution and yet quibble about intervention by the people at the level of the written Constitution itself?

Of course the officeholder class condemns all this.  They sympathize easily with Alexander Hamilton’s alleged aristocratic sneer against Jeffersonian democracy:  “Your people, sir,—your people is a great beast.”  In the 1980's President Ronald Reagan complained that convention foes across the political spectrum, from the ACLU to the John Birch Society, had bought into the “wild beasts theory.”  

Today a formidable array of spin doctors remains ready and eager to defend the postmodernist elite and to discredit the populist process inherent in an Article V convention.  “Hands off the Constitution” is one way of reminding people that their betters know best, and that we ourselves are unqualified to meddle with the highest law of the land.

Postmodernist Americans are schooled to submit to a machine-like society that demands obedience to a host of rules, regulations and requirements – from traffic lights to bicycle-helmet laws to innumerable other mandates from on high, ranging from high finance to hate speech.  Big brother is looking over your shoulder; just ask Martha Stewart or Bobby Fischer.  Publicizing the plights of such individuals teaches the rest of us to keep to our queue.  The Milgram Studies beginning in 1963 showed the extent to which the ethic of blind submission to authority had set into American culture.[3]

The acquiescent culture enables the postmodernist regime to sell the idea that a judicial oligarchy – unelected and irremovable – is one of our democracy’s mainstays, and that the convention envisioned by the Framers of the Constitution is too dangerous for the uninitiated to touch.  They have circulated the view that the document which begins with the words, “We the People,” is like the Arc of the Covenant.  Only the priestly class, the politburo of nine in their black vestments, are worthy to enter the sanctuary where the amending process is conducted.  Let the Levites in their judicial robes handle any modifications, but manifestly not us (we the people) whose elected convention might be irresponsible and “runaway” with the process.

            This chapter is predicated on the proposition that the reverse is true.  The governing elite has produced a royal mess.  Now it is up to us, the governed, to put things back into order.

 

 

The Article V Amending Provisions

     The history of the convention as a means of altering the fundamental law of a nation is documented in "Prelude to the Grand Convention," the first chapter of a meticulously researched book published in 1988 by Oxford University Press.  The author, Russell Caplan, notes that the prototype for a constitutional convention was the momentous convocation at Runnymede in 1215.[3a]  On that field by the Thames River, the English barons assembled and won the Magna Carta from the oppressive King John.

            Against oppressive government of any kind, royal or otherwise, the authors of the great charter of American liberties, the U.S. Constitution, sought to establish institutional checks and balances. In framing the Constitution as the fundamental embodiment of such safeguards, the grand convention (assembled in Philadelphia, 1787) anticipated that at some point amending the basic law of the land might become necessary and yet be squelched by an unresponsive Congress.

 

            None of the Founding Fathers were ignorant of the history of oppression perpetrated by King George III and earlier English monarchs.  Many of the Founders were educated men well schooled in the history of antiquity, and (unlike too many college students today) they were familiar with the writings of political philosophers like Plato, Aristotle, Polybius, and Cicero.  

            In the fifth chapter of Politics, Aristotle declares revolution and constitutional change to be one and the same thing.  He then considers two categories of revolution:  First, complete change from one constitution to another, which is what the Framers did in 1787.  Second, and most relevant to our constellation amendment, Aristotle analyzes modification of an existing constitution.[4]

While amending the U.S. Constitution as per Aristotle’s second category will be revolutionary in nature, or rather counterrevolutionary because our aim is to restore the written Constitution, such a fundamental change would in no way gainsay the wisdom of the Framers.  On the contrary, at the convention of 1787 the Framers themselves recommended to future generations not one but two methods of changing the document they created, and both methods remain today unaltered in the fifth article of the original Constitution.  Article V of the U.S. Constitution defines the amending process as follows (italics added):

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof,[5] as the one or the other Mode of Ratification may be proposed by the Congress: Provided...that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

And so any movement to amend the Constitution legally and peacefully must take one of two routes: (1) the usual course through Congress, or (2) through the convention which Congress calls but does not control.  The latter and more revolutionary approach, with its restricted congressional role, is eminently preferable given the principle of jurisprudence that no person be judge of his own case. In the constellation law there are a number of provisions where it would be like allowing the defendant to move from the dock to the jury if the verdict is left to Congress.  For example, section three reforms the committee system –– the exact place where so many oligarchs in Congress have staked their claims to personal power. 

Where could justice be sought, when the
offender was at the same time the judge
 

Moreover the first section of the constellation law rotates every member of the House of Representatives.  How many Congressmen can be impartial on the question of terminating their own tenure in office? 

Furthermore, it is a natural instinct to favor a continuation of the system when one has prospered within it, and to be blind to better alternatives. Tom Paine would pithily describe this tendency in his Common Sense:

… as a man, who is attached to a prostitute, is unfitted to choose or

judge a wife, so any prepossession in favour of a rotten constitution

of government will disable us from discerning a good one.

Thomas Paine, Common Sense (1776) 

Yet another reason for the convention approach comes to us by simple process of elimination, in that the alternative method – going through Congress and its conjoined party system – is manifestly unworkable.  Party politics operates by coalition building too, but political party coalitions in this country would be hopelessly incongruous if juxtaposed to a quintuple coalition of workers, believers, voters, together with defenders of peace / environment, and domiciliary  security.  The latter coalition spans the political spectrum, from liberal to conservative, whereas the American two-party system is geared to elections that give power to a much narrower bracket of spoils seekers.

For the purpose of pushing through an amendment that embraces left, center and right, the multi-party system that prevails in Europe and elsewhere would, though impractical in this country, be theoretically possible.  Europe’s multi-party process has not infrequently empowered a left-right coalition after elections fail to yield a majority for any political party.

In America, however, the two-party system is intended by design to assure a majority to the leading party.  In the United States coalitions form before the election, not after, so that from the outset activists of the left and right are divided by party battle lines that render ideological diversity difficult, if not impossible.  By the time the smoke clears, the government’s ideological composition is already decided, and invariably it excludes one or more of the elements that our quintuple coalition would embrace. 

Another special American problem is that ideological principles are apportioned between the parties in ways that create unnatural opposition between groups that might otherwise be allied.  Yes, the quintuple combination is also imposed from above in the sense that its raison d’être, the constellation law, does embody a predetermined pentagon of interests.  But party politics embodies not so natural a combination.  At their worst political parties are coalitions begotten by headmen like Boss Tweed, and organizations like Tammany Hall, followed by their ilk of latter-day political brawlers.  Such a coalition might perchance, but more often does not, conform to national needs.

Our coalition will, on the other hand, be about nothing other than national interests.  The proposed quintuple coalition will field no candidates whatsoever.  We would focus, instead, on specific national reforms, rather than devising ways to help our favorite gladiator(s) subdue foes in the political arena.

Some risk is implicit, to be sure, in the fact that the five corners of our coalition are not without factional baggage that could drag us into internecine strife.  We must work assiduously to avoid the discord that might array the libertarian against the social conservative; or pit peace advocates like Michael Moore against his counterparts on the issue of Second Amendment rights. 

By way of example, friction does in fact afflict rank and file members of organized labor.  The leadership of labor unions has such a firm and longstanding commitment to the Democrat Party that culturally conservative laborites find themselves in a shotgun wedding, walking down the aisle as it were, with a bouquet of pro-abortion and pro-homosexual agendas.  And yet, for better or for worse, the average laborite still strides along, qualms and all.

            In support of the constellation law, only a relative few potential insurgents are likely to join, heart and soul, with each and every corner of the quintuple coalition.  Any left-center-right alliance will inevitably produce diffidence and friction among the allies.  But the higher the cause, the more readily will people override their qualms and overlook contradictory values. On the Ides of March, 2003, my daughter and I demonstrated at the Federal Building in Seattle.  We stood in coalition with a Congressman whose views on social issues were diametrically opposed to ours.[7]  What governed us was the overriding cause of keeping the peace by opposing the impending invasion of Iraq.  Similarly, the salvation of our country ought to push a host of divisive issues to the back burner.

Despite inevitable friction within the quintuple coalition, we can promote concord by stressing the essential compatibility of these basic principles:

 

§         conservation

§         peace with foreign countries

§         tax-free domiciles

§         2nd Amendment rights

§         increased demand for labor

§         clean government advocacy

§         Judeo-Christian values

 

 

Party Politics

           

Party politics is hopelessly intertwined with the congressional process of amending the Constitution.  As an instrument to promote our pentagon of purposes, party politics as manifested in the Congress today is quite inadequate – and even inappropriate if it were workable, which it is not.  Article V offers the convention method, however, which would be a fitting way to enact an arch-amendment to the Constitution.  As observed in the Cooley Law Review, by the founder of one of the nation’s top law schools, former chief justice of the Supreme Court of Michigan, Thomas E. Brennan, an Article V convention is indicated because:

the people of the states are brought together in their most sovereign capacity. 
Such a convention would be an awesome and august assemblage.  It
would bring a new, responsible dimension to American politics.

            Before assessing the practical potential in a constitutional convention, we need to dismiss the idea of relying on Congress to propose the arch-amendment.  There are two congressional options: use the existing two party system or create a new political party.  The first approach would mean getting the Democrats and/or the Republicans to endorse the constellation law, and then secure a two thirds majority vote for the arch-amendment in both houses of Congress.  Let it simply be said that this strategy is politically impossible; it would ensure failure if we pursued it.

The second approach using party politics would involve realignment into a new party system.  The theory goes like this:  If a political party is formed from scratch, a party that embraces the quintuple coalition’s purposes, then once the party takes power it could push the constellation amendment through the U.S. Congress under Article V.  If we achieve our purposes by campaigning for a new political party, we preempt more radical methods like a constitutional convention, civil disobedience, or armed revolution.

The strategy, of taking over by creating a powerful new political party, encounters at least four fundamental flaws: 

First, regardless of whether the party competes in a multi-party or two-party system, political parties are defined by platforms that embrace many more issues than the constellation law embodies.  Therefore, the party process would necessarily dissipate and scatter our energies, irrespective of whether the party to which we pin our hopes is new or old.  In order to prevail against the postmodernist regime, we need to gather and focus our efforts.

Second, the winner-take-all election laws throughout the United States (as opposed to proportional representation) embody a strong bias against third parties.  For more than a century, the system has denied third parties any real share in governmental power at the federal level.

Third, minor party movements have a weakening track record since the mid-20th century, and have wasted reformers’ time and effort.

Fourth, the process of amending the constitution under Article V requires a two-thirds vote in both houses of Congress.  The prospects are extremely poor for either a newly created party, or an older reformed party, to secure a supermajority in both chambers of Congress — i.e. two-thirds of the House of Representatives plus two-thirds of the Senate.  Since the Great Depression of the 1930's, only one election (1964) has yielded a supermajority for the Democrats in both houses.[8]  There has been no such supermajority for the Republican Party since Reconstruction (election of 1872).

For the foregoing reasons it is necessary to bypass the party system, to which Congress is inextricably linked.  Building our quintuple coalition for the purpose of propelling some political party to power would only lead to exasperation, defeat and despair.  Attempting to implement Article V by means of party politics would therefore be like pushing the proverbial bolder up the hill but never reaching the top, except that unlike king Sisyphus in Hades our punishment would be in this world and self-inflicted.

 

 

The Article V Convention

Abraham Lincoln

Abraham Lincoln

            Many other aspects of the constellation law are more suitable for a constitutional convention — the Fifth Article’s second method.  During the American Revolution, in fact, five of the 13 states preferred constitutional conventions to the point of forbidding the legislative branch any role whatsoever in the amending process.   President Lincoln’s inaugural observation still applies:

...the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others not especially chosen for the purpose....[9]

Indeed the Article V convention was intended by many of  the country's founding generation of leaders to be the means to accomplish periodic adaptation of the U.S. Constitution to changing times.  Born the same year as Jefferson, Samuel Williams of Vermont (1743-1817), saw the federal constitutional convention as the vehicle for what today we term the “living, breathing constitution.”  Congregational minister, Harvard professor, author of the first history of Vermont, and founder of Vermont's oldest continuously published newspaper; Rev. Williams considered a rigid, unchanging constitution to be high folly, in that "no policy would appear more puerile or contemptible to the people of America, than an attempt to bind posterity to our forms, or to confine them to our degrees of knowledge, and improvement:  The aim is altogether the reverse, to make provision for the perpetual improvement and progression of the government itself….”   This constitutional flexibility was, wrote Williams, built into Article V by the Framers:

Upon this idea it is one of the essential and constituent parts of American government, that conventions shall be called at certain periods of time, to alter, amend, and improve the present form and constitution of government; as the state, circumstances, and improvements of society, shall then require.  Thus provision is made, that the improvement in government, shall keep pace with the improvement of society in America.[10] 

According to the preeminent Article V historian, Russell Caplan, “Nothing would surprise the framers more than the confusion surrounding the convention method of amendment, for it was common and accepted in their time.  The convention route had been built with familiar materials; it was not intended to be, nor did it start out as, an especially clandestine procedure.”[10a]

Politicians answered to their own agendas, however, and soon the oligarchy – as opposed to “We the People” – came to dominate the amending process.  Instead of periodic conventions (as per Thomas Jefferson’s revolution every 20 years), the Congress took exclusive charge of initiating amendments to the written document, while the courts formed a de facto standing convention to amend between the lines of the “living, breathing constitution.”  Thus the courts and the professional politicians monopolized control over constitutional changes by reducing the Article V convention process to the status of a dead letter.

Today the fear of returning to the Framers' vision, and of restoring the constitutional convention as one of the essential and constituent parts of American government” (Williams, supra), tends to grow in direct proportion to one’s rank in the established power structure.  Longtime homesteaders in the House or Senate will tend to look askance at the convention process, and more than a few will hate it with a passion.  There have been exceptions, like the illustrious Illinois Senator, Everett Dirksen.  In the case of the Presidency, the unusual process of rising quickly through the ranks might save leaders like Lincoln, Eisenhower and Reagan from too thorough acclimatization to the D.C. establishment.  But generally, as Antonin Scalia observed, “(Congress) does not want amendment power to be anywhere but in its own hands.”[10b]  

The worst of the postmodernist powerholders are especially fearful because the Article V convention is the method bequeathed to us as a way around despotic or usurpatious federal government.  The Meriwether Lewis of the trek toward judicial dictatorship, Chief Justice Earl Warren, fretted in 1963 that in the hands of an uninformed public,” an Article V convention could soon destroy the foundations of the Constitution.”  But President Dwight Eisenhower, who considered his nomination of Earl Warren to be the greatest mistake of his Administration, endorsed the convention process.[10c]  

Usurpers are high level thieves far more disruptive of domestic tranquility than anything bank robbers or muggers can do to threaten society.  Usurpers dread the Article V convention because, combined with state ratifications, it could empower the people to repossess what has been stolen.  

It should come as no surprise when high level incumbents have a visceral dislike for the practical means whereby the people might return the Supreme Court, the Congress, and the bureaucracy to their proper places in the constitutional design.  In order to discredit the very process of Article V, they field a formidable array of spin doctors.  The hypnotic spin that bedazzles us is mainly about fear, danger and dread.  To break the spell, let us consider safeguards. 

 

 

Seven Safeguards

 

One of America's most effective generals wrote during D-Day, 1944: "Take calculated risks.  That is quite different from being rash."[11]  A military hero from early American history, John Paul Jones, declared, “he who will not risk cannot win.”  Indeed, risk is a characteristic element in almost anything worth achieving.  It is said that a second convention – the first at the national level since 1787 – will entail some risk.  True enough, yet the pursuit of a risk-free world is sham and deception. With that pioneer of democracy, Pericles, let us remember:

Happiness depends on being free, 
and freedom depends on being courageous.
[12]

Moreover, not every imagined danger is realistic.  Some years back a church newspaper in Spokane, Washington editorialized tremulously that a runaway convention might emulate mainland China and mandate abortion after a mother has a certain number of children.[13]  Other groups were frightened that a convention would abrogate or mutilate the Bill of Rights.[14]  Although these fears are somewhat far-fetched, they are considered later in this chapter to illustrate the checks built into the Constitution's fifth article.

Law Professors Albert E. Jenner, Jr. and Stephen J. Safranek argued in 1996 that “the convention method is a safer method of amendment than through Congress.”[15]  On the question of safety versus risk, I would add that in recent decades the Supreme Court has become a quasi-constitutional convention, permanent and continuing, which lacks any of the safeguards and ratification requirements intrinsic to a genuine Article V convention.

Many Federal court rulings have gone far beyond the original intent of the first ten Amendments, and have for all practical purposes been amending the Bill of Rights by judicial fiat.  I submit that the convention authorized by the Framers of the Constitution, replete with checks and balances, is a minuscule threat to the Bill of Rights, as compared to the direct, real and immediate threats posed by today's de facto convention.  The nine unelected and irremovable Justices are linked to the people at most remotely.  It is this ongoing quasi-convention, this postmodernist politburo in black robes, which constitutes the clear and present danger. 

And yet the 2004 platform of the Constitution Party rated this real and ongoing threat as less risky than the fifth Article of the U.S. Constitution:

We oppose any attempt to call for a Constitutional convention, for any purpose whatsoever, because it cannot be limited to any single issue, and such convention could seriously erode our Constitutionally protected unalienable rights. 
plank six, Constitution Party platform, 2008.

On this point the Constitution Party seems to be cut from much the same mold as the old Federalist Party whose leaders were quite paranoid about the prospect of a second constitutional convention.  Said Thomas Jefferson in 1800, “the very word convention gives them the horrors, as in the present democratical spirit of America, they fear they should lose some of the favorite morsels of the constitution.”[15a]  Perhaps the authors and supporters of C.P. plank #6 should pray for a measure of the boldness and courage implicit in FDR’s inaugural plea of 1933, “the only thing we have to fear is fear itself.”

            By contrast to decrees issuing from the de facto constitutional convention which the activist federal judiciary comprises, the straightforward system set forth in Article V of the Constitution is checked by at least seven safeguards.  These checks would reduce risks associated with a constitutional convention far below the imminent peril posed by runaway legislation from the bench. 

First and foremost among checks is what the Declaration of Independence calls "a firm reliance on the Protection of Divine Providence."  In campaigning for the constellation law we will be seeking to honor God.  It will be a worthy cause and, as it was said by one of the Declaration's signers, the Rev. John Witherspoon,

If your cause is just, you may look
with confidence to the Lord, and
entreat Him to plead it as his own.
 

Second, we can expect the American voters to cast their own check in advance against a maverick or runaway convention.  Hopefully the electorate will put prudent convention delegates in the majority.

Third, we will have to build a campaign to promote calling the convention, and the infrastructure of that campaign can quickly change gears and oppose opportunist attempts to divert a convention to their agenda.  It will depend on who does the better job organizing.  If we develop a national campaign organization strong enough to get 34 states to petition for a convention, we will be in a good position to turn that organization to the election of delegates who are favorable to the agenda on behalf of which the convention was called in the first place.  In other words, if the postmodernist regime is able to prevent the requisite 34 state applications, there will be no convention – whereupon we will have to look to plan B as elucidated in chapter five.  On the other hand, if we do have the clout to convene a convention, then we should also have the wherewithal to get a majority of delegates elected who are friends to an unaltered constellation law.

A related fourth check to a runaway convention is an awareness during the convention proceedings that it would be dangerous to betray such a formidable populist movement –– a force strong enough to call the first convention in more than two centuries.  Plan B, the fallback option, will loom like a sword of Damocles over delegates inclined to divert the convention from its intended purpose.

Delegates will also have not just a populist rage to take into account, but also the Congress. If the convention acts ultra vires , i.e. exceeds its power by going outside the subject matter described in the state applications that caused Congress to issue the convention call; then, according to Caplain, Congress would have a plausible excuse to intervene. Ultra vires amendments proposed by a convention can, he contends, “be withheld from the states by congressional refusal to assign a mode of ratification.”[15b]

***

Digression on the preferred mode of ratification: This safeguard is, however, a two edged sword – able not only to smite a runaway, but undermine a convention that stays on course. To deter sabotage of a dutiful convention, why not look to the tactic employed by the grand Convention in 1787? In a virtual replication of the US Constitution’s seventh Article, section 6:1 of the arch-amendment prescribes, as the preferred mode of ratification, state conventions elected for the purpose.

In Article V of the Constitution, which governs the amending process, the Framers indicated no procedural difference in how the states ratify a constitutional amendment proposed by Congress, vis-à-vis an amendment proposed by a Convention. In either case the Constitution authorizes two methods, both equally valid, whereby the States can ratify or reject an amendment referred to them:

(1) By ratification conventions elected in the states. This is the procedure used to ratify the Constitution itself in 1787-1788; also to ratify the 21st Amendment (anti-Prohibition) in 1933. Insofar as delegates to ratification conventions are elected democratically in the respective states, the conventions collectively approximate a national referendum on a specific constitutional proposal. In his thorough study of the convention issue, Caplan notes that “since Congress would claim the power to select the mode (of ratification), and likely choose the invalid method, a convention bent on peaceful revolution would have to take it upon itself to stipulate ratification by state convention….”[15c] Precisely that is set forth in section 6:1 of the constellation law.

Furthermore, ratification conventions would be the surest way to secure the consent of the governed, and our closest Constitutional approximation to a national plebiscite. But Article V’s alternative method for ratification is not so directly democratic, namely the way more commonly used in American history, as follows:

(2) By three-fourths of the state legislatures. This method of ratification accounts for 26 of the 27 ratified Amendments to date. To be sure, the 7400 state legislators are closer to their constituents in many ways, than are the 535 members of Congress homesteading back in Washington, D.C. Though ratification conventions would be the preferable method, the second method of ratifying the work of a convention is not without potential, especially if the sweetener (see below) is included in the arch-amendment.

***

Either mode of ratification would constitute a fifth check to a runaway convention, namely the explicit constitutional requirement that three-fourths of the states must ratify what the convention proposes before it becomes law.  A runaway convention would be a nullity without ratification of its proposals by 38 of the 50 states.

Since it takes 38 states to ratify an Amendment, it would require only thirteen states to withhold approval and the aforementioned abortion mandate would come to nothing.  After Roe v. Wade in 1973 sixteen states applied to Congress for a convention to limit abortion.[16]  If a convention were to go the opposite way and propose any sort of mandatory abortions, those sixteen states – probably considerably more – would refuse to ratify.[17]

In regard to the fears for the Bill of Rights, the first ten Amendments have become a national treasure whose original wording is almost sacrosanct.  It is doubtful whether eliminating or emasculating even one of the ten would receive the approval of a single state, much less 38.  Proposals like professor Richard Labunski’s (to abolish the second Amendment) would get nowhere in the state legislatures, as he himself admits in his book, The Second Constitutional Convention.[18]

The flip side of this safeguard, it must be conceded, is the distinct possibility that opponents will be able to arrest the constellation law at the ratification stage.  Such an event would compel us to opt for the much higher risk plan B, where checks and safeguards are manifestly fewer.

A sixth check is news coverage of the convention proceedings.  Whether the convention is broadcast nationwide or only reported by journalists, the news would spread like wildfire if there were any major departure from the agenda set forth in the original state applications for a constitutional convention.  Feedback to the convention sent by alerted state legislators and via public opinion would constitute a swift and potentially conclusive check in itself.  However, this check will be negated if – like the convention of 1787 – delegates secure a news blackout.[19]

A seventh check is unique to the twelvefold structure of the proposed Amendment.  Assuming that it becomes the basis of a convention call by the states, and by virtue of its incorporating the Judeo-Christian symbolism in the number twelve, the consequent religious dimension of the convention agenda – the twelve lights amendment – will pose formidable practical problems for delegates who might want to add provisions on, say for example, abolition of the Electoral College.[20]  The twelve sections are already reserved, as it were, being filled up with reforms arranged logically by subject matter under three preambles –– political, economic and cultural.  It would entail ostentatious tampering with the amendment in order to address the existence of the Electoral College.  To do so would require either an additional section, or ungainly insertion into an original section, or else elimination and substitution for one of the existing sections.

Against the latter course – elimination and substitution – our people can mount a resistance within the convention on grounds that it would betray the backers of the specific section slated for elimination, the very citizens who would have helped bring about the original call by two-thirds of the states. 

The previous alternative, insertion of extraneous modifications into one of the twelve sections, is a tactic of ill repute in Congress, where opponents of a bill try to amend it to death.  It is a well-known parliamentary maneuver against which our delegates will have to be on guard.

The remaining alternative – attempting to increase the number of sections to thirteen or more – could be opposed on grounds that it would break faith with the Judeo-Christian component in the alliance, i.e. one of the charter members in the twelve lights coalition which promoted the constellation law in the first place.

Of course it would be naive to suppose, given the harsh realities of the political arena, that the metaphysical / historical implications of an Amendment with exactly twelve sections – no more no less – would suffice to deter a runaway convention.  Having the aforesaid seven safeguards working in tandem will, however, impose a formidable check to a convention getting out of hand. 

The seven safeguards will reduce risk to a level hopefully far less fearsome to Americans than the immediate threats to democracy, and indeed to civilization itself, that have already reared their apocalyptic heads.  Following the rabid bite of a wild beast, medical intervention to save an unconscious victim entails far less risk than letting the malady run its course. 

The runaway system of amendment by adjudication has already rendered comatose the rule of law under the written Constitution.  Our peril is like a camel compared to which the risk of a runaway convention is merely a gnat.  Ignore guides who are blind or bereft of courage and who council us to “strain out the gnat but swallow the camel.” [21]

 

We have reached the stage where radical turnabout is the patriot’s only hope, at least in this world.  So keeping the seven safeguards in mind, let patriots urge upon the state legislatures the machinery for constitutional revival.  Remind them that Article V was bequeathed by the Framers themselves.  Let the Republic proceed to a convention with hope rather than trepidation, with faith rather than dread. 

 

 

History and Procedures

      Let the reader be sure to distinguish between the two stipulations in Article V — that three-fourths of the states (38) are needed to ratify any Amendment approved in a convention, whereas only two-thirds (34) of the states need apply in order to mandate the initial convening of a convention.  Note that the total of states is four less to get a convention called into existence than to win ratification for what it may propose to the states.

The history of that first stage in the process, applications by state legislatures, dates back to the months after the convention of 1787, when New York and Virginia applied for a second convention to amend the work of the first.  As it turned out this early movement for a second convention was a rematch of states’ righters against nationalists ..., netting a compromise in the Bill of Rights.” [22]  The following 22 decades saw hundreds of applications for a convention on a wide variety of subjects.  The variety was so wide, in fact, that no single topic garnered quite the necessary two-thirds of the states.[22a]  In the twentieth century, three convention movements (see figure 4.1, orange totals) have fallen short by the narrow margins of one or two state applications.

The earliest of the chief convention movements preceded World War I.  This was the progressive era which featured a strong movement for an Article V convention on popular election of U.S. Senators.  Pressure on the issue had built to within an application or two of the required total, and another eight states were on record for the Senate reforms.[23]  The U.S. House of Representatives had on five occasions approved an Amendment for direct election of the U.S. Senate, but until 1911 the Senate stonewalled.  Finally, faced with the pressure for a con-con as applied by the states under Article V, and rather than allow the states to bypass Congress on the issue, the Senate bowed to political necessity and passed the seventeenth Amendment.

One member of that U.S. Senate whom the prospect of a convention did not intimidate was Albert Cummins, Republican of Iowa.  His verbal exchange in 1910 with another GOP Senator, Weldon Heyburn of Idaho, illustrates the same kind of fear we hear today when a convention is proposed.  In a packed Senate chamber Heyburn spoke at length about the dangers of a convention that might repeal, modify, or change the Constitution – the familiar runaway convention argument.  Then he pointed to the "strife and contention" that existed in the country as evidence that if a convention did convene, it would be hopelessly deadlocked between hostile factions.  Sen. Cummins rose, apologized for being puzzled, and asked whether Heyburn meant that the convention would be dangerous or fruitless.  Heyburn replied, "It would be both – dangerous if it were not fruitless, and fruitless if it were not dangerous." 

Sen. Everett Dirksen

Sen. Everett Dirksen

Cummins replied by citing the safeguards built into Article V (the ratification requirements of three-fourths of the states).  To his credit, Heyburn then perceived his error and virtually conceded the point.  The danger was not critical, he acknowledged, in that the American people and Congress had "enough conservative wisdom" to avert the danger.[24]

Danger was again the watchword circulating in Congress during the 1960's, as a campaign pushed hard for a convention on the subject of reapportionment for state legislatures. Theconvention drive was headed by Everett Dirksen, the classic U.S. Senator from Illinois.  His death in 1969 broke the campaign's momentum just as it verged on success. Having gathered applications from 33 state legislatures, the campaign fell one short of the required 34 states.[25]

In the 1980's, a campaign to achieve a balanced budget Amendment via a constitutional convention peaked at 32 applications.[26]  As in the previous convention drives, the cries of alarm became shrill as the total approached the constitutional threshold.

The following chart gives the subject matter of the 20th century’s strongest convention movements – i.e. those which secured more than a dozen state applications.[27]

 

Figure 4.1

State Applications for An Article V Convention

2/3 of states needed, [34]

years

1899-1983

subject matter of proposed amendment

number of states with applications on subject

1978-1983

1973-1980

1965-1973

1963-1969

 

1953-1965

1939-1960

1906-1916

1899-1910

Balanced budget

Pro-life (anti-abortion)

Revenue sharing

Reapportionment of legislatures

 

Revision of Article V

Limitation of U.S. taxing power

Prohibition of polygamy

Direct election of U.S. Senators

 

32

16

18

33

 

13

28

27

29

 

 

 

 

 

 

 

 

 

The main effect of the Dirksen drive of the 1960's was to spur the Congress, or rather the Senate, into an attempt to set up procedures that would govern an Article V convention should it ever be called into session.  The late Senator Sam Ervin, a well respected constitutional expert of the time, sponsored an act to regulate convention procedures.  The Ervin bill passed the U.S. Senate unanimously in 1971 and again in 1973, but remained locked up in a House committee where it died.[28]  At the date of this writing, many details on convention procedures remain in the realm of speculation.

Nevertheless the Ervin plan is suggestive. It set forth a system for electing delegates to a convention that meshed nicely with some current practices.  If the Ervin formula were applied the convention would consist of 535 delegates, each state to elect the same number of delegates as they elect now to both houses of Congress, or to the Electoral College.  Each state would select two of its delegates at large (100 total) the remaining 435 to be chosen in the existing congressional districts.[29]

Although the Ervin bill never became law, the bill remains alarming as regards two constraints a campaign for the constellation law should be prepared to face.  Perhaps the least stringent of the two is chronological: 34 states must apply contemporaneously.  Twenty years after the Ervin bill, the application of the contemporaneous principle was thrown into doubt.  In 1992 the ratification process for the 27th amendment (re raising congressional salaries) was finally completed and certified after 203 years.  Until then, seven years had been thought to set the limit on contemporaneous ratifications.[30]  The 203 year precedent might or might not have any bearing on the time frame of securing 34 applications for a constitutional convention.[30a]  What the 27th Amendment’s ratification does tell us is this: since the constellation law has no time-frame specified for ratification – unless the convention sets one – there is good reason to persevere once we reach the ratification stage.[31]

The second and potentially more difficult of the Ervin constraints is that the 34 applications should propose identical or essentially identical constitutional changes.[32]  Both these regulations were strongly backed by the Senate when it approved the Ervin bill, and either could serve in future as a pretext for Congress to avoid calling a convention, even after the requisite 34 applications are filed.  So far in history it has been Congress alone who has determined whether the subject matter of applications is essentially the same or not –– the same Congress which is certain to be hostile to many of the political reforms as set forth in the constellation law.

Indeed, intentional negligence on the part of a Congress intent on monopolizing the amending process may well account for the fact that neither the House nor the Senate has set up clerical procedures to keep track of Article V applications from the states.  From such a perspective, it would be undesirable to have the Senate clerk and/or the House clerk keep an accurate and readily verifiable count of state applications for a convention.  The point here is that congressional machinations over technicalities may derive from antipathy to the process.  Congress could thus emphasize the exact form rather than the general intent of state applications in order to multiply categories so that no single category of applications will ever reach the requisite 34.  (If we credit the challenged counts by FOAVC, Congress would appear to have employed this stratagem already, and on more than one occasion).

Indeed, it appears that a congressional keenness to have sole control of the amending process led directly to the Ervin bill's death in the House Judiciary Committee.[33]  In a revealing article and panel discussion, Political Scientist Frank Sorauf indicates that the powers that be in the House prefer to maintain a nebulous situation with uncertain ground rules so that if ever applications do reach the total of 34, then Congress will have "flexibility and freedom to reject the applications as invalid."[34]  Sorauf had earlier coined the term, “the politics of uncertainty,” to describe the way Congress plays to its own interest in leaving the con-con route undefined.  As Antonin Scalia put it in 1979 while still a law school professor: Congress “likes the existing confusion, because that deters resort to the convention process.  It does not want amending power to be anywhere but in its own hands.”[34a]

TeLL (the Twelve Lights League) will surely have to address the problem of variations from state to state in style of applications.  If Congress receives state applications containing 34 somewhat variant versions of a proposed Amendment, there is a real danger that unscrupulous opponents of a convention will find enough variability to divide the applications into perhaps two categories according to subject matter, neither of which alone will total the required 34.  Rather than leave the door open to such a technical pretext, we should urge the state legislatures to incorporate a common denominator into every state application.  We hope legislators will find it useful to employ the prototype text of the constellation law (see chapter 12) as a convenient point of identity between the various state applications.  Divergent provisions preferred from state to state could still find a place on state applications if the format is as follows:

·         The 34 state legislatures apply to Congress for a convention.

·         Every application indicates the prototype text in chapter twelve as the general subject matter of the convention.  Let a formula be worded within each application making reference to "an amendment along the lines" of chapter twelve, or words to that effect.  The prototype text might then be included as an appendix to the application.

·         Any application might add instructions for convention delegates from the respective state.  Delegates would be instructed to propose at the convention such changes in the prototype text as the application specifies.[35]

 

Instructing delegates as indicated above in the third step will enable the various states to propose omissions or elaborations for the Amendment without jeopardizing the presence of a common subject matter in 34 state applications.  If every application makes the same explicit reference to an identical version of the constellation law, the categorization dodge by opponents should be too brazen to employ. 

Incorporating the indicated precautions into state applications will be quite consistent with the intent of the Framers.  Both Alexander Hamilton and James Madison were convention delegates in 1787; and both stated in writing that the convention process would be controlled by the states.  The Federalist Papers contain Hamilton's observation that if two-thirds of the states ever apply to Congress for a convention, then under Article V the words shall call a Convention are "peremptory" and in the particular of whether Congress issues such a call, "nothing is left to the discretion of that body."[36]  In 1789 Madison wrote to a Virginia clergyman, "the question concerning a General Convention, will not belong to the federal Legislature.  If two-thirds of the States apply for one, Congress cannot refuse to call it:..."  A few months earlier another Framer, John Dickinson, wrote that, “whatever their sentiments may be, they must call a convention for proposing amendments, on application of two-thirds of the legislatures of the several states.”[37]

 

Five Potential Congressional Monkey Wrenches

 

          And yet Hamilton, Madison and Dickinson have long been moldering in the grave, and who can tell how the love of position and the pride of office will lead Congress to vote in the 21st century?  Dr. Sorauf puts great stock in a determination by Congress to defend its own honor and credibility.  Hopefully he is not unduly optimistic in believing that the inclination of Congress to uphold its legitimacy and fairness as a central institution in the amending process, will, in the end, outweigh the tempting impulses to find some pretext for turning back the petitions of the states.[37a] 

Russell Caplan is not so sure, although, like Sorauf, he gives weight to what he hopes will be congressional awareness that loss of confidence in government is at stake.  Caplan notes that “most scholarly opinion finds an inescapable obligation,” and that the Founders “spoke with one voice on this duty.”  Yet sense of duty in the upper reaches of power is not what it used to be, and a congressman might argue cynically that the people have pretty much lost confidence in government anyway, so that there is little to lose in that respect.  Indeed Caplan's historical research reveals that three state legislatures, New Hampshire, Iowa and Maryland, ignored mandatory referenda in favor of state constitution conventions, and the legislatures never issued the convention call at all.  In 1965, during the Dirksen campaign, Illinois Senator Paul Douglas opined:  “there is little real expectation that the Congress will call a convention even if two-thirds of the State legislatures pass the applications.  It cannot, I believe, be forced to do so.”[37b]

          Even after issuing the call, Congress still has monkey wrenches it could introduce to undermine the intent of the Framers of Article V.  The Framers of the Constitution built considerable complexity into the national legislature, whereas the convention was left unstructured, with its procedures permitted to be relatively simple and facile. The convention would consist of a single assembly of delegates (not two chambers as in Congress); and under Jefferson's lex majoris partis a simple majority of members present and voting would suffice to submit a proposed amendment to the states.  But in the 1970's, the U.S. Senate exhibited unanimity, in its amended version of the Ervin Bill, in favor of overriding the principle of majority rule and imposing a supermajority requirement on the convention.  Caplan argues that had this Senate bill passed into law (in fact it never got to the House floor), it would have violated the Constitution by erecting a hurdle that only the convention could impose during the process of setting up its own internal procedures.  “If Congress were able to raise the convention’s majority vote, it could choke the convention and thereby do indirectly what article V forbids it to do directly.”[38] 

          Another concern analyzed by Caplan is that Congress might let convention proposals wither and die on the vine, by “refusal to assign a mode of ratification.”  For example, suppose the convention disregards a provision in the initial congressional resolution that calls the con-con into session, say a supermajority voting requirement.  Acting independently, the convention proceeds to set its own rules, and it reaffirms the lex majoris partis for submissions to the states for ratification.  An arch-amendment then passes, say, by 55% to 45% of the convention delegates.  Under Caplan's scenario, the Congress might simply refuse to set the mode under Article V [i.e. “…as the one or the other Mode of ratification may be proposed by the Congress”].  Even if three-fourths of the legislatures ratify, the courts could indeed rule the ratifications null and void because the submission was done without Congress.[38a]

          Another possible subterfuge is that Congress might find a way to recognize the petitions as valid and still confine the amending process to Capitol Hill.  Don’t be overly astounded if Congress trots out precedents in some constitutional conventions at the state level (like the unscrupulous legislature sitting sporadically as a constitutional convention in Massachusetts, 2004-07, over the same-sex marriage issue).  Congress might call a U.S. constitutional convention to consist of none other than the sitting members of the U.S. Senate and House.  A kangaroo con-con consisting of the 535 incumbent members of Congress might convene at 11:30 AM and adjourn at noon, and that would be that.  Article V would have been vandalized.  

Caplan's book argues convincingly that election of convention delegates would be unequivocally controlled by the states, not the Federal Government.  Therefore Congress cannot elect itself as the convention delegation.[38b]  And yet if, over the decades, the Feds could trample the Tenth Amendment underfoot as they have, why couldn't they do likewise with Article V?  

And with separation of powers as cover the regime’s judicial branch might be deaf to charges that article V had been violated.  Here again, Caplan sees plenty of room for the courts to intervene.  Conservative GOP Senator Roman Hruska of Nebraska (1904-1999) stated in 1967 that if a court order is ignored by Congress, the Supreme Court itself could order the convention.[38c]  But such judicial intervention would, to put it mildly, be uncertain.

        Another possible exhibition of congressional skullduggery would see the process interminably delayed.  Years ago a Congressman told me that even if the requisite 2/3 of the states do apply for an Article V convention, “the way things work around here it could take ten years to bring the applications up for a vote.”  After New York voters approved a convention in 1886, it took the legislature eight years to call it.[39]

 

_______

 

If the hopefulness expressed by Sorauf and Caplan does prove naive, and Congress maintains its control over the amending process by means of one or more of the above contrivances, then let the states and the people look to plan B, the original right of revolution implicit in the Ninth Amendment of the Bill of Rights.[40]  This ultimate authority of the people is a right enshrined also in the “alter or abolish” clause of the Declaration of Independence.  If duty and concern for the integrity of the Legislative Branch are not enough to keep Congress on the straight and narrow, then perhaps fear of armed insurrection will make up the difference.

Timid souls will no doubt urge against the convention mode of reform on that account alone.  Better “to suffer, while evils are sufferable,” they will argue, than tempt Congress to inflict a constitutional crisis upon the nation, with the attendant risk of giving credibility to proponents of violence.  Better to appease a la Neville Chamberlain, 1938.  After all, they will caution, taking the bull by the horns is risky.

But what is risk?  “The possibility of loss or injury,” says Webster's Dictionary.  The timid approach would strain out prospective losses or injuries, meanwhile swallowing hook, line and sinker all the ongoing loss of liberty together with the accelerating injury to our republic.  We are speaking here of something more immediate than risk – the realm of actuality, not just possibility.  We are at a time in American history where affirming the prevailing trends is, of all courses, worse than risk.  It is more like passively reclining on the rails in front of a moving freight train.

The familiar avenues of reform are not working; or rather they do work against us by sidetracking energy and delaying ad infinitum the radical turnabout necessary to restore the Republic.  The customary political process offers us nothing but an orderly fighting retreat.  Retreating without hope of ultimate victory is just another way of submitting to the growing tyranny inherent in the status quo.  It is an unwitting decision to surrender slowly. 

Instead let us take hope in the closest thing to a popular referendum that the Framers of the Constitution bequeathed to us.  At this point in history, the Article V convention is the one peaceful way to restore America the Beautiful under God and the written Constitution.  It is worth a try.

 

 

Persuading the 7400

            Well before the hour of decision arrives on whether Congress will dare subvert Article V, or will instead perform its constitutional duty, our counterrevolutionary combination must face the formidable task of securing 34 state applications for a convention.  To pursue this objective with any prospect of eventual success, we must build a populist campaign whose cause is the constellation law and whose focus is the 50 state capitols, or rather the some 7400 men and women who serve there as legislators.[41]

There is no point is setting ourselves up for defeat by making a premature approach to these very busy men and women.  Let phase one be widespread dissemination of Treatise on Twelve Lights, so that it will come to legislators’ notice as a tour de force with plenty of people behind it.  Enough distribution to reach the bulk of Americans who read about politics should be sufficient before we kick off phase two of Plan A: face-to-face lobbying of the people whom Article V of the Constitution authorizes to initiate the convention process. 

It would be a mistake in my view to begin lobbying in all 50 state legislatures simultaneously.  It would be better to get off to a good start that snowballs from state to state.  Since grass roots support is key to this whole plan, why not begin with legislators whose state constitutions afford us the most democratic of tools that can be applied to the legislative process, namely the initiative?

A major tactical error on our part would be to start with the direct initiative, insofar as a body of legal precedent exists to the effect that state legislatures per se, and not the electorate of the state, are the designated bodies to apply for a convention under Article V of the U.S. Constitution.[42]  As per Article V, a state application cannot be passed by the people, but only by the respective legislature.  Nor in most states can a popular initiative force the legislature to take action on an application for an Article V convention.  In nine states, however, citizens circulating petitions can force the legislature, to take a vote pro or con on the convention application.  In these nine states the process is known as the indirect initiative, and gives the people some extra clout in moving the issue to a voteFigure 4.2 ranks the nine states in order of population:

 

 

Figure 4.2

States where citizens can compel floor votes in the legislature

State

Population [in millions]

% of voters
required to petition

Ohio

Michigan

Massachusetts

Washington

Utah

Nevada

Maine

Alaska

Wyoming

11.4

10.1

6.4

6.1

2.4

2.2

1.3

0.6

0.5

3

8

3

8

10

10

10

10

15

Sources: 2000 census;
 Initiative & Referendum Inst., Univ. S. Calif.

The largest of the indirect initiative states is Ohio, ranking seventh in the nation by population.  Massachusetts ranks 13th nationally by population.  At three percent, the signatory requirement in OH and MA are the lowest for the purpose of forcing the legislature to take a public vote.  Ohio’s Midwest location is more pivotal than the Bay State’s; also the Buckeye State borders the second largest of the indirect initiative states, Michigan, whose signatory minimum is, however, considerably higher than OH or MA.  Later, after the campaign catches fire, 8-10% the number of voters in the last election will become less formidable as an obstacle.

It may be that starting first with a few small states might be a good lead up to the campaign in Ohio.  Of course the activists on the spot will be in the best position to gauge the degree to which a given state is favorably inclined, or whether TeLL should start with a few states simultaneously.  If TeLL decides to focus on one state with the indirect initiative, then they might find a larger state like Ohio or Michigan more receptive to out of state campaigners than a smaller state like Wyoming or Utah.  On the other hand Nevada boasts a multi-billion dollar tourist industry and might be more open to a convergence of petitioners from outside the state.

Allow me to digress on a symbol that inclines me to Ohio. About the same time America was entering the space age, a nine year old Cincinnati boy, Jimmy Mastronardo, traveled to his State capitol at Columbus, registered as a lobbyist, and campaigned over the next three years for a new State motto.  At first this movement must have seemed hopelessly naive if not ridiculous to self-styled realists.  Yet the dream became political reality.  It was enacted by both houses of the Ohio legislature, and signed into law by the Governor in July, 1959.  The words remain to this day [despite back and forth verdicts in Federal Courts] the official motto of the State that claims both John Glenn and Neil Armstrong.[43]  Ohio's motto consists of the words the youngster took from Matthew 19:26.

Flag of Ohio, the Buckeye State

Flag of Ohio, the Buckeye State

With God
All Things
Are Possible
 

Remembering this excerpt from Matthew 19:26, let us by no means neglect prayer prior to all major decisions, including how to organize leadership for phase one and phase two of Plan A.  Both phases should be under the leadership of the Twelve Lights League [TeLL].  I have already founded TeLL under the laws of Washington state governing non-profit educational corporations.  As the movement grows, let TeLL’s national steering committee consist of delegates sent by state affiliates, with an executive board of thirteen elected by county affiliates.[44]  As a first order of business, the TeLL executive board should elect a chaplain (as should each state affiliate).

In lobbying for legislative support, let TeLL’s appeal be first to the legislator's higher motives, including piety, patriotism, reason and political self-interest –– not necessarily in that order, depending on the legislator being lobbied.  When a legislator remains unconvinced by piety, patriotism or reason (as happens with frequency), then we can appeal to his or her political instincts.  This pragmatic political appeal should itself take a dual approach: first, by appealing to the legislator's political stake in listening to constituent's opinions; and second, by appealing to the interests of state legislators desirous to enhance the status and authority of the institution in which they serve.

The former is well understood and needs no elaboration here, although Ted Sorrenson’s summary of the special features that characterized JFK’s political campaigns are worthy of note.[45]  The latter, the institutional approach, should emphasize in particular the second section of the constellation law.  Section 1:12-13 restores some of the influence which the state governments lost in 1913, upon the passage of the seventeenth Amendment.

 A little historical background is called for:  During the twelve years between Independence and the ratification of the Constitution in 1788, the country’s first constitution—the Articles of Confederation –– let each state legislature elect the state's delegation to the continental congress.  Thereafter under the U.S. Constitution, and for the next 125 years, each legislature retained this power in partial measure by electing the state's two U.S. Senators.  The populist transformations of American politics prior to WW I saw the abolition of this state legislative influence on Congress.  Under pressure of an Article V convention movement, the 17th Amendment of 1913 transferred directly to the people the election of Senators to their seat in Congress.  As a consequence the state capitols have, since 1913, lacked the national stature and clout that formerly emanated from each legislature's power to select two members of the state’s congressional delegation.

The Framers of the Constitution deemed it wise to have an authoritative link between the state legislatures and one house of Congress.  The 17th Amendment totally severed the connection.[46]  The constellation law reestablishes the link – although not with the U.S. Senate, but rather through the more democratic chamber, the U.S. House of Representatives.  Section 1:12 would empower state legislators to initiate recall action against members of the U.S. House.  Only the voters at the polls might actually recall a Congressman under section 1:13, but the power of state legislators to put a Congressman's continuance in office up for a popular vote, will afford our state senators and representatives far more voice and clout in national affairs than they have had in nearly a century.  This renewed political link between the states and Congress will decrease the isolation of the D.C. beltway, and will increase the prestige and potency of a seat in the state legislature.  Accordingly, in lobbying for the constellation law, let the 7400 legislators hear about how section 1:12 revives the principle of federalism.  This sweetener will charm idealistic legislators, intrigue the pragmatists, and entice the self-interested.

Furthermore, the legislators should be reminded of the various decentralizing provisions of the constellation law.  All three preambles preface sections where there is reallocation of responsibility to the states and localities rather than to the Federal government.  Such decentralization will naturally appeal to state legislators more readily than to the Feds.

 

 

Crossing into Illegality

            The generation ending just after WWI accomplished three successful grass roots insurgencies: [1] the populist movement for more democratic elections, and the victorious campaigns for constitutional amendments favoring [2] prohibition and [3] women’s suffrage.  The half century after World War II saw three more popular upsurges: [4] the civil rights movement under the leadership of Martin Luther King, [5] the anti-war movement of the Vietnam war era, and [6] the term limits movement.  The latter was manifestly popular with voters where state laws gave them access to the initiative and referendum.  But in 1995 the U.S. Supreme Court struck down the populist verdict and reinforced the officeholder class.

Heretofore we have assessed methods that are akin to the strictly legal approach taken in four of the six popular insurgencies of the 20th century.  But the SMC [Student Mobilization Committee against the Vietnam war of which this writer was a campus chairman in the 1960s] crossed the line of illegality on a massive scale, as did Rev. King’s protest movement of the 1950’s and 1960’s.  Both the Civil Rights Movement and SMC relied heavily on street demonstrations and other forms of civil disobedience to accomplish their goals.  The militancy implicit in street marches, protests, and sit-downs was vital to success in opposing racial discrimination, and combined with campus takeovers proved indispensable in halting the military debacle in southeast Asia.  The populist tumult was indispensable.  As the 2009 Manhattan Declaration observes:

Through the centuries, Christianity has taught that civil disobedience is not only permitted, but sometimes required. There is no more eloquent defense of the rights and duties of religious conscience than the one offered by Martin Luther King, Jr., in his Letter from a Birmingham Jail. Writing from an explicitly Christian perspective, and citing Christian writers such as Augustine and Aquinas, King taught that just laws elevate and ennoble human beings because they are rooted in the moral law whose ultimate source is God Himself. Unjust laws degrade human beings. Inasmuch as they can claim no authority beyond sheer human will, they lack any power to bind in conscience. King’s willingness to go to jail, rather than comply with legal injustice, was exemplary and inspiring.[46a]

As for the term-limits movement, it failed in part because its strategy was so law-abiding.  It got nowhere in roughly half the states where no referendum process existed and state legislators felt safe in stonewalling.  In the other half of the states, Herculean efforts by citizen reformers were enormously successful at the ballot box, but got reduced to naught by judicial fiat.  Backed by the U.S. Supreme Court, which had by 1995 become brazenly oligarchic, Congress kept their incumbent protection policy in place while managing to finesse the issue of term-limits.

By contrast, the Vietnam protests and civil rights campaigns profited from multi-dimensional strategies, and the more militant ones were not over-scrupulous about lawfulness.  Because bloodshed was small scale and not intrinsic to either movement, but mainly inflicted by the regime on protesters, this chapter takes civil disobedience as seen in America during the ‘50s, ‘60s and early ‘70s as a tactic compatible with an insurrection of suede.  Let TeLL see street pressure as one component of plan A, though clearly to be distinguished from insurrection by the sword as per plan B.

            Counterrevolution is hardly amenable, however, to tidy distinctions.  We might well see a display of armed force conducted privately.  Demonstration(s) by force of arms could be supportive of the constellation law, and yet independent from TeLL, somewhat like hit pieces sponsored by a political action committee without consulting the campaign the advertisement is intended to assist.  And just as candidates deny official connection with such loose cannons, though without decrying their assistance, so TeLL would be imprudent either to endorse or publicly disavow privateers who use defensive force prior to the implementation of plan B.

Indeed, an armed demonstration could be helpful if the regime is seen to provoke the resistance – say by moving against some sacred or patriotic symbol which begs for someone to defend.  If insurrectionists choose the sites and circumstances astutely; like, say, the Alamo in 1836, then armed force contemporaneous with plan A might impact public opinion favorably.  A positive public response will be more likely if, as in the case of the militiamen at Lexington, the action is initially a defensive one, and the regime draws first blood.  If conducted defensively the use of armed force might have an even better public relations impact than, say, the Easter Rising of 1916, nearly three years prior to the Irish Revolution.  At the outset of the Easter Rising the insurrectionists fired the first shot and took the offensive with a surprise attack in Dublin.

To awaken and inspire the general populace, some 1250 Irish men and women (with children as scouts and couriers) undertook a pitched battle to hold captured government buildings briefly, “in full awareness that their position was utterly hopeless and that surrender was only a matter of time.”  As James Stevens prophetically put it when the Easter Rising broke out, his countrymen had not been with the Revolution, “but in a few months she (Ireland) will be, and her heart which was withering will be warmed by the knowledge that men have thought her worth dying for.”[47]

The Easter Rising was an invaluable public relations coup that would spawn a successful revolution against the British Empire.  It was “the triumphant self-immolation of the 1916 leaders, whose sacrifice and courageous example put new heart into the Irish people, and gave rise to an independence movement....”[48] (the Irish Revolution of 1919-1921).

One of the defining characteristics of the Easter Rising was the awareness of the certainty of short-term defeat, and the willingness to accept arrest and/or death, without hope that fellow Irishmen would or could come to their rescue.  It was nothing like suicide bombers who attack civilian commuters.  But it does bring to mind the voluntary self-sacrifice of a polish priest at Auschwitz (St. Maximilian Kolbe), or the brave French paratroopers who volunteered to be dropped into Dien Bien Phu in 1954.

 To stand in front of an onrushing freight train is suicide in the sinful sense, and is objectively evil.  Not so in resisting overwhelming force for a moral purpose, as evidenced by heroic deeds down through the centuries.  During the early history of the roman republic, Horatius was careless of his personal safety, refusing to retreat and facing the enemy alone at the Sublician bridge.  Meanwhile his fellow Roman soldiers behind him demolished the bridge, and kept the Tarquins from crossing the Tiber.  Likewise, Leonidas and his 300 Spartans earned an honored place in history – and were certainly not guilty of committing suicide – for making a stand in the narrow pass at Thermopylae and giving their lives for their fellow Greeks.  Outnumbered 100-1 (or perhaps several times that ratio), they died to delay the Persian invasion and save Greece.

 

Doolittle Raiders “Ever Into Danger”

“Ever Into Danger”
April 18, 1942

 In 160, B.C., just before being killed in battle, Judas Maccabeus embraced the likelihood of death rather than pay the public relations price of retreat.[49]  Similarly with the Kreisau circle and the White Rose Society, whose resistance to Nazi totalitarianism from within Germany was so risky as to seem almost suicidal, and yet was seen at the time as essential to atone for national atrocities.[50]

American history brings Davy Crockett of Alamo fame to mind, who cautioned, “be always sure you’re right – then go ahead.”[51]  The heroic stand at the Alamo was certainly not suicide in the sinful sense.  A quarter century later, in 1859, the United States put John Brown to death for seizing the arsenal at Harpers Ferry, Virginia.  The attack by a mere 22 men was quickly crushed.  But Brown’s resort to force and his execution brought Americans to a fever pitch over the issue of emancipation, and helped spark the war that finally liberated the slaves.

In 1942, Jimmy Doolittle’s attack on Tokyo, by aircraft carrying too little fuel for a return flight, necessitated the loss of fifteen of the sixteen B-25 bombers, and great danger to the lives of 80 American crewmen, most of whom bailed out at night over China.  The raid did relatively little physical or military damage to Japan.  Yet its public relations purpose was a valuable one — to break the Japanese sense of military invincibility, and to bolster U.S. morale after several months of unbroken defeat in World War II.

Likewise today, as we continue to endure the postmodernist revolution, morale amongst longsuffering Americans is very much in need of a lift.

Moreover, the option of insurrection by the sword as laid out in the next chapter will not only impact morale, but also revise the political equation.  In the first chapter we compared the constitutional convention to the drop kick in American football – an ancient play that remains legal under the rules but that we almost never see used anymore.  Recently, however, professional indoor football leagues have revived the dropkick by adding a new incentive or factor in coaches’ calculations.   A simple rules change now makes the dropkick worth 4 points whereas the field goal by placekick remains at 3 points.

By analogy, the introduction of armed resistance into the country’s political calculations will provide far more incentive to go with plan A than if it stood alone without plan B hanging like a sword of Damocles over reluctant moderates and tentative patriots.  Indeed it may be that the convention alternative under Article V of the Constitution has virtually no chance in the political arena as currently constituted.  But faced with the dynamic of impending civil war, political pragmatists may see the con-con in a new light, just as the imminence of death is said to concentrate the mind wonderfully.  This revised equation will prod realists to take a closer look at Article V of the Constitution.  For an Article V convention is the only way to accomplish counterrevolution and still keep sabers in (or return them to) their scabbards.

 

 

Conclusion

 

 

President George Washington

            In the early 1780's over-centralization was the least of our ancestor's problems.  America faced the opposite extreme.  Under the Articles of Confederation the national government was so decentralized that the thirteen United States faced a distinct possibility of dissolution into several independent republics.  It must then have looked politically impossible, or at best highly improbable, that before the decade ended the states would repudiate their opportunities for full sovereignty and would yield many powers to a central government.  Yet the great concession was about to take place, and without war or by dint of surprise.  Within a year after the constitutional convention – which historian, Catherine Drinker Bowen, has called "the miracle at Philadelphia" – eleven of the thirteen states were to deliberate in ratifying conventions and decide in favor of the U.S. Constitution.

As 18th century Americans took risks and sought what may have seemed humanly out of reach; so too the idea of constitutionalizing the constellation amendment may have the appearance of an extremely long shot.  Yet we know it is possible, because something as singular and rare did happen in the days of the Framers.  Indeed the sense that the events prerequisite to the Constitution had an element of the supernatural was acknowledged in official gratitude by Congress, upon passing the Bill of Rights (1789), and by President George Washington.  Without the intervention of Divine Providence, they said, the Constitution could not have come into existence in the first place.[52]

  America has, therefore, a debt of gratitude along with a divine Source of hope.  These are documented in the Declaration of Independence, made "with a firm reliance on the Protection of divine Providence," and in the Great Seal motto: Annuit Coeptis (He has favored our cause).

Historians will have a sublime and fitting junction to describe if citizens employ the legacy of the Framers, Article V, as a means to restore the American miracle.

 

 

APPENDIX ONE

 

Samples of past State Applications for an Article V Convention

Prototype for future State Applications re the arch-amendment

 On the eve of the postmodern era, usurpation by the U.S. Supreme Court came within an ace of provoking the first national constitutional convention since the composition of the U.S. Constitution in 1787.  Soon after the Baker v. Carr decision of 1962 “asserted Federal judicial authority over the basic structure of government in the various states,” a movement to overturn the ruling began.  Its purpose was to restore the people’s “right to determine how they shall be governed.”[53]  During the years 1963-69, guided nationally by US Senator Everett Dirksen of Illinois, the movement garnered the support of 33 of the 50 states.  But Sen. Dirksen died on the threshold of victory.  Had Dirksen remained in good health, it is conceivable that his persuasive powers might have secured the 34th state application.

In any case his campaign was adeptly organized, and the various forms of the 33 state applications are worthy of study for our own purposes.  Scans of North Carolina’s and Minnesota’s applications in 1965 are included below, followed by a prototype of my own composition that will hopefully be useful. 

Significant features of applications during the Dirksen campaign include their diversity with respect to “Whereas” clauses.  With Minnesota some states – such as Louisiana, Nebraska, South Dakota and Tennessee – omitted whereas clauses altogether.  Others like Utah, Mississippi, and South Carolina (see SC below) preferred to declare the causes which impelled them to invoke the convention option, by making the case prefatory to their resolution (or memorial) to Congress under Article V.

Some of the state resolutions include provisos should Congress act first; whereupon, as the Mississippi legislature put it in June, 1965, “Be it Further Resolved that if Congress shall have proposed an amendment to the Constitution identical with that contained in this resolution prior to July 1, 1966, this application for a convention shall no longer be of any force or effect.”  Not surprisingly congressional help proved to be a forlorn hope.  In fact Congress attempted to hinder any convention that might be called.  Four years after Dirksen’s death the Ervin bill passed the Senate — though it died in the House, a demise well-deserved for seeking to impose a two-thirds supermajority upon convention delegates before they could propose any amendment to the states.

Minnesota answered the “runaway convention” argument by adding a phrase to the most common wording in the various resolutions applying to Congress “for the purpose of proposing an amendment to the Constitution of the United States ….”  Minnesota did reiterate that call, but the legislature added, “the Congress of the United States is requested to call a Convention for the single purpose of proposing the following article as an amendment to the Constitution of the United States:”[54]  Similarly, North Carolina employed the phrase “sole purpose.” 

 

Application for Article V Convention by Legislature of So. Carolina

 

 

 

Application for Article V Convention by Legislature of So. Carolina

 

Application for Article V Convention by Legislature of Minnesota

 

 

 

 

Application for Article V Convention by Legislature of Minnesota

 

Prototype for future State Applications concerning the constellation amendment

 

Whereas, aided and abetted by a judicial oligarchy, the regime that now governs American culture has polluted the country’s manners and morals by opening the floodgates to host of cultural evils, including a reeking tide of pornography, and has degraded America’s influence and reputation overseas by exporting cultural offenses in many forms, and

Whereas, the regime that governs the American economy has put profit above all else, and has polluted the ecological heritage of the nation, often discounting the sacred nature of our natural environment, and

Whereas, hard won protections in U.S. law for workers, and for the environment, are circumvented by global trade organizations working hand in glove with the postmodernist regime through treaties and conventions that violate national sovereignty, and

Whereas, government at the Federal level has accrued unto itself much of the power which U.S. Constitutional Amendments 9 & 10 reserve to the states or to the people; and has aggrandized itself to the point that America is destabilized by its top-heavy condition, and taxpayers burdened far in excess of what provoked the first American Revolution, and

Whereas, those components of the Federal Government designed by the Framers of the Constitution to be closest to the people have been distorted into oligarchy and plutocracy, serving the few and answering to the rich, and

Whereas, since 1963 a bipartisan regime has undertaken a series of undeclared wars in violation of Article I, sect. 8 of the U.S. Constitution.  And by eliminating the assent required of the legislative branch under the form set forth (i.e. declaration of war) in the highest law of the land, the regime has managed to add warmongering to the list of evils and crimes it has perpetrated at home and abroad.

Whereas, the aforesaid grievous offenses call for remediation by the people, using all measures afforded by the Constitution.  Therefore, looking to the fifth Article of the U.S. Constitution, we the people of ____ State do firmly,

 

Resolve: that application is hereby made to the Congress of the United States to call an Article V “Convention for proposing Amendments.”  And we do

Further resolve: that Congress shall call such a Convention for the sole and single purpose of considering the arch-amendment set forth in the twelfth chapter of Treatise on Twelve Lights: To Restore America the Beautiful under God and the Written Constitution, 2010 ed.

 

 

 

 

HOME: Front of Book & Table of Contents

Advance to Chapter Five

 

 


 

ENDNOTES
Clicking on endnote number takes the reader
up to citation point in the text.

 

[1] Russell L. Caplan, Constituitonal Brinksmanship, Amending the Constitution by National Convention (New York: Oxford University Press, 1988), pp. 26-27.  For more on Shay’s Rebellion see, for example, Marion L. Starkey, A Little Rebellion (New York: Alfred A. Knopf, 1955); David P. Szatmary, Shay’s Rebellion: The Making of an Agrarian Insurrection (Amherst MA: University of Massachusetts Press, 1980).

[2] Or as Wood puts it, (agreeing with Edmund S. Morgan and Bernard Bailyn), “a dispute between Mother Country and colonies over constitutional liberties.” Lawrence Kaplan, ed., Revolutions: A Comparative Study (New York: Random House, 1973), chapter 6; Gordon Wood, “The American Revolution,” p. 124.

[3] Caplan, Constitutional Brinksmanship, p. 87, quoting the Reagan Administration.  Stanley Milgram, "The Perils of Obedience," Harper's Magazine.  Abridged and adapted from Obedience to Authority Copyright 1974.  Available online at http://home.swbell.net/revscat/perilsOfObedience.html.  Some have related Milgram’s findings to the prisoner abuse at Abu Guraib and elsewhere during the American occupation of Iraq.  See, for example, http://e-courses.cerritos.edu/rlewellen/Intro/Fall%202004/Prison%20Study.htm

[3a]  Caplan, ibid., p. 5.

[4] Aristotle, The Politics 5.1, pp. 189-90.  The Politics draws upon a diverse set of samples, some 200 independent city states with their own constitutions, providing, as it were, a political laboratory like none other in the history of democracy before or since.

[5]Ratifying conventions have convened only twice in the United States: to ratify the original Constitution of 1787, and in 1933 when the States elected conventions to ratify the 21st Amendment repealing prohibition.  See Everett S. Brown, Ratification of the Twenty First Amendment to the Constitution of the United States: State Convention Records and Laws (Ann Arbor: University of Michigan Press, 1938).
            If Congress should designate this mode of ratification, the highly democratic elections to State conventions would probably measure public opinion more closely than legislative ratification.

[6] Denis, quoted by Pitirim A. Sorokin, The Sociology of Revolution (New York: Howard Fertig, 1967), pp. 33-34, on Czech revolution of 14th century.

[7] We were in the same crowd with Congressman Jim McDermott (D) outside the Federal Building, Seattle, WA.  Four days later the war began, and Rep. McDermott issued the following statement:

“My prayers are with our troops and the Iraqi people: that our troops will return home safely and that deaths of innocent Iraqi children and other civilians will be avoided.  I love my country, and I support the young people who will be ordered into this fight.  I do not agree with the path that President Bush has chosen. This war was avoidable. I fear that bypassing the United Nations and demanding regime change by force instead of working toward peaceful disarmament is a dangerous step for our nation.”

[8] The 89th Congress passed only one Constitutional Amendment: the 25th (vice-presidential succession).  The best the Democrats could boast after their biennium with a supermajority was the Voting Rights Act of 1965.  By then the postmodernist revolution was underway, and amendment by adjudication was already devaluing the very vote that the statute was extending to the disenfranchised.

[9] The five states to rule out a legislative role in amending the constitution were, New Hampshire, Vermont, Massachusetts, Pennsylvania, Georgia.  History of Vermont Constitution in official state web site:  http://vermont-archives.org/govhistory/governance/Constitution/history.html

    “While I make no recommendations of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself,....  I will venture to add that to me the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse.”  Lincoln’s 1st inaugural in, Henry Steele Commanger, Documents of American History, 2nd ed., 2 vols. (N.Y.: Appleton-Century-Crofts, 1958) 1:388.

[10] Samuel Williams, The Natural and Civil History of Vermont, 2 vols. (Burlington VT, Samuel Mills, 1809) 2:395-96.

[10a] Caplan, Constitutional Brinksmanship, pp. 160-161.

[10b]  Ibid., pp. 161-162. 

[10c] Ibid., p. 74, quoting NY Times, May 23, 1963. 

[11]General George Patton, letter to Cadet George Patton IV, June 6, 1944, quoted in Bartlett's Quotations, 15th ed., p. 791.  It might be said by some that Patton himself was too impetuous and indiscreet to have any credibility on the distinction between rashness and risk.  We cite him in his professional capacity as a soldier.  His remarkable success on the battlefield against a shrewd and formidable foe proves that, however idiosyncratic and impatient his mannerisms, he was no reckless or thoughtless practitioner of the calculated risk.  Nor was John Paul Jones cowardly, the Sea Captain of Revolutionary War fame, who said, “he who will not risk cannot win.”

[12] Thucidides, Pericles’ funeral oration, in The Peloponnesian War 2.43.  Translated by Rex Warner, Penguin Classics [1954] pp. 149-150.

[13]Editorial, "Deficit Thinking?" Inland Register (Spokane, WA), April 19, 1979, p. 4.

[14]Frank J. Sorauf, "The Political Potential Of An Amending Convention," in The Constitutional Convention As An Amending Device, sponsored jointly by the American Historical Assoc. and the American Political Science Assoc. for Project '87, edited by Kermit L. Hall, Harold M. Hyman and Leon V. Sigal (1981), pp. 118-19, 134.

[15]Albert E. Jenner, Jr. and Stephen J. Safranek, Amending the Constitution by a Call for a Constitutional Convention, Americans for Limited Terms, 1996. More recently, Washington D.C. lawyers, David B. Rivkin Jr. & Lee A. Casey, make the case for a con-con in their, “The States Can Check Washington’s Power,” Wall Street Journal, online ed., 12/21/09, p. 1. http://online.wsj.com/article/SB10001424052748704304504574610120356499810.html

[15a] Caplan, Constitutional Brinksmanship, p. 43.

[15b] Caplan, p. 152, cf. 148-49.

[15c] Caplan, p. 215, fn. 57.

[16]On January 30, 1980, Tennessee became the 16th State to petition Congress for a Convention to limit abortion.

[17] Roger Pilon, “Term Limits and The Great Con-Con Hoax,”, 2 September 1996, notes: “Those who fear a ‘runaway’ convention have simply not done their ratification arithmetic.” Roger Pilon directed the Cato Institute's Center for Constitutional Studies in Washington, D.C.

[18]Richard Labunski, The Second Constitutional Convention: How the American people Can Take Back Their Government (Versailles KY: Marley and Beck Press, 2000), pp. 399-422.  Labunski’s 14th chapter advocates abolishing the 2nd amendment.   At p. 422 he concedes, “The likelihood that the Second Amendment will ever be repealed is small.  Supporters need only convince representatives or senators in one house in 13 state legislatures—whose members represent less than five percent of the country’s population….”  In 2000 Labunski was assoc. professor in the School of Journalism and Telecommunications at the U. of Kentucky where he taught media law and other courses. 

[19]For conflicting views over whether a Convention called under article V may or may not be limited, see, Ann S. Diamond, "A Convention for Proposing Amendments: The Constitution's Other Method," Publius: The Journal of Federalism 11 (Summer 1981): 113-146; and John R. Vile, "Ann Diamond on an Unlimited Constitutional Convention," Publius 19 (Winter 1989): 177-183.  

            The definitive work on this issue is, IMO, Caplan, Constitutional Brinksmanship, chapter 7, “The Convention’s Proposing Agenda,”  pp. 138-158.   Caplan concludes that an Article V convention is “in all likelihood constitutionally limited to proposing amendments described in the state applications that generated the call.” (p. 157)  Caplan adds that “Congress in modern times has by and large maintained that a convention cannot be limited.”  This view is useful in dissuading states from submitting applications, “thereby leaving Congress in exclusive control of the amendment process.” (p. 161)  See above, on “the politics of uncertainty.”

[20]So proposed by Richard Labunski, The Second Constitutional Convention: op. cit, pp. 365-66.

[21] Matthew 23:24.

[22]Edward P. Smith, "The Movement Towards A Second Constitutional Convention In 1788," in Essays In The Constitutional History Of The United States, J. Franklin Jameson, ed. (Boston: Houghton, Mifflin & Co., 1889), pp. 61, 94, 103-04, 108.  Caplan, Constitutional Brinksmanship, p. 159.

[22a]Caplan, ibid., pp. 151-157, on the necessity of a convention sticking with the subject matter of the applications for which it was called.

[23]As of June 18, 1910 Congress had received 29 applications for a Convention on the issue of direct election of U.S. Senators.  The count mentioned by Sen. Robert L. Owen (10 Feb. 1911) refers to 31 petitions by legislatures to Congress generally, not necessarily for a Convention.  The official count seems to have been rather tentative, perhaps since Sen. Weldon Heyburn, who opposed a Convention, said he was keeping the petitions from the States in his desk.  Heyburn noted that there had been some confusion by legislatures, and not all petitions made specific reference to a Convention. [Congressional Record, 61 Congress 2, pp. 8460-61; 61 Congress 3, p. 2256].

[24]Congressional Record, 61 Congress 2, pp. 8459-60.

[25]Philip L. Martin, "The Application Clause of Article Five," Political Science Quarterly 85 (December 1970): 624-26; American Bar Assoc., Amendment Of The Constitution By The Convention Method Under Article V (Chicago: American Bar Assoc., 1973), pp. 2-4.  Hereafter cited as ABA report.

[26]Christian Science Monitor, 2 June 1983, p. 3; Congressional Quarterly Weekly Report 40 (27 March 1982): 661-62.  The last two States were Alaska (1982) and Missouri (1983).

[27]Calculated mostly from Congressional Record, 92 Congress 1 (Oct. 19, 1971), p. S16519; ABA report, pp. 59-77.

[28]Sorauf, p. 118; Congressional Record, 93 Congress 1 (July 9, 1973), pp. S12728-30.  The Ervin Bill of 1971 was designated as S 215, and in 1973 as S 1272; CR as cited in this footnote gives the bill's full text known as the "Federal Constitutional Convention Procedures Act."  Hereafter cited as the Ervin bill.

[29]Ervin bill, sect. 7a; Sorauf, p. 123.  However, the ABA report, pp. 35-36, argues for 435 delegates elected in the congressional districts, without the 100 delegates elected at large like U.S. Senators. 
            The standard text on constitutional conventions in this country was for many years the still valuable volume by judge John Alexander Jameson, A Treatise on Constitutional Conventions: Their History, Powers, and Modes Of Proceeding (Chicago: Callaghan And Co., 1887).  One of the best modern sources, with extensive appendices and bibliography, is Federal Constitutional Convention, October 30 & 31, 1967 hearings before the Subcommittee on Separation of Powers, Senate Judiciary Committee, 90 Congress 1, (Washington, D.C.: Government Printing Office, 1968). 

[30]Ervin bill, sect. 5a.  See also Dillon v. Gloss 256 U.S. 368 (1921) at 371, 374, 376, where the U.S. Supreme Court held that ratification by the States must be reasonably contemporaneous, and that there was "no question" that seven years was reasonable.  However the ABA Report, p. 32, suggests either four or seven years as reasonably contemporaneous for applications.Paul Freund (1908-1992) of Harvard Law School wrote in 1971 that “A case can be made for allowing a relatively long period for ratification after the Congress or a convention has performed the solemn deliberative act of proposing an amendment, while the call for a convention should stress more strongly the element of a contemporaneously felt need.”

[30a] Paul Freund (1908-1992) of Harvard Law School wrote in 1971 that “'A case can be made for allowing a relatively long period for ratification after the Congress or a convention has performed the solemn deliberative act of proposing an amendment, while the call for a convention should stress more strongly the element of a contemporaneously felt need.'”  Quoted in Caplan, Constitutional Brinksmanship, pp. 112-113.  

            Caplan thinks the states may control the timeliness issue by appending time-frame provisos to their applications.  At 148 he makes the point that the convention itself could set its own deadlines for ratification.

[31] Richard B. Bernstein, “The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment,” 61 Fordahm Law. Review,  497-557 (December 1992).

[32] Ervin bill, sects. 4 and 6; ABA report, pp. 30-31.

[33] Sorauf, pp. 113-14, 121-22, 126, 132.

[34] Ibid., p. 122.  Cf. pp. 132, 145; Wilbur Edel, A Constitutional Convention: Threat or Challenge? (New York: Praeger, 1981), p. 123.

[34a] Caplan, Constitutional Brinksmanship, pp. 77, 161-62, quoting Scalia at p. 162.

[35] How binding such instructions would be legally, is of little practical consequence; because for a delegate to make known to the Convention the intentions of his State would be morally binding and politically imperative.  Nonetheless, Caplan, Ibid., p. 100, cites historical evidence that “delegates may be given instructions” on how to vote on a particular subject matter.

[36] Alexander Hamilton, Federalist Papers, no. 85, third to last paragraph.

[37] James Madison, letter to George Eve, 2 January 1789.  See also Madison's remark in the House, that it is "...out of the power of Congress to decline complying," in 1 Annals of Congress, 1 Congress 1, (5 May 1789), p. 260.  Dickinson quoted in Caplan, Constitutional Brinksmanship, p. 117.

[37a] Sorauf, pp. 123, 145.

[37b] Caplan, Constitutional Brinksmanship, pp. xi, 115-17.

[38] For Caplan's analysis of the simple majority vote required to submit proposed amendments to the states see, ibid., pp. 120-21.  Italics for choke the convention are mine.  Despite the absence of any express provision in Article V that in any way contradicts the lex majoris partis, an amended bill passed the US Senate in 1971 and 1973 seeking to mandate a supermajority from within the convention in order to submit proposed amendments to the states.  Ervin's original version of 1967 (prior to the 1971 amendment) provided for a majority, not two-thirds, of the total number of delegates.

            Jefferson's Manual, section 41, states: "The voice of the majority decides; for the lex majoris partis is the law of all councils, elections & c., where not otherwise expressly provided." Jefferson's Manual was prepared by T.J. during his Vice Presidency, 1797-1801, and it remains part of the official rules in each house of Congress. [Senate Manual, section 741.13; Rules of the House of Representatives, section 508]. 

[38a] On congressional refusal to assign a mode of ratification see Caplan, ibid., pp. 148-49, 152.  Caplan argues: “If a convention should try to force an amendment through the states without obtaining a congressional decision on the mode of ratification, the amendment – whether within the convention’s mandate or not – would remain invalid.”  Congress would be able to obtain an injunction to prevent enforcement, since it could allege injury to its lawmaking powers. Ibid.

[38b] Caplan, Constitutional Brinksmanship, p. 119.

[38c] Sen. Hruska quoted in Caplan, Constitutional Brinksmanship, p. 134.

[39] Four term Congressman Mel Hancock, (1989-1996) of Missouri.  Caplan, ibid., p. 115.

[40] According to professor of law, George Anastaplo, of Loyola University, Chicago, “Perhaps the most important of the unenumerated rights referred to by the Ninth Amendment, if not the most important of all of the rights encompassed by the Bill of Rights, is the right of revolution. It had been invoked by the People, and to good effect, a decade before the framing of the Bill of Rights, having been critical to the emergence of the Unites States…. This right does stand as a constant reminder of natural standards and ends beyond the saying and doings of constitutions and governments. Recognition of this right can significantly affect the character of political life in a community. George Anastaplo, address to the Midwest Political Science Association Annual Meeting, Chicago, Illinois, April 14, 1989.

[41] The Book of the States, 1994-95, vol. 30, p. 113.  Count of legislators current to April 1994 was 7424. By November, 2008 the total had declined to 7382.

[42] U.S. Supreme Court has ruled that in Hawke V. Smith, 253 U.S. 221 (1920) at 227-228, that the term "legislatures" in Article V meant "the representative body" and not the electorate.  See especially pp. 227-31.  

            California and Montana saw attempts to place on their ballots popular referenda directing the legislatures to submit applications.  State supreme courts prevented them from being placed on the ballots on grounds the referenda contravened state constitutional provisions as well as Article V.  Justice Rehnquist let stand these decisions in 1984.  Caplan, Constitutional Brinksmanship, p. 84.

[43]Senate bill 193, Ohio legislature, 1959.

[44] Expect the regime to use the familiar divide and conquer strategy.  This insidious approach would give covert support to a competitor or two to the TeLL, all purporting to be supportive of our reforms but disavowing our leadership.  Our countermeasures will necessarily have to be ad hoc, developed at the time. 

We can avoid procedural pitfalls by giving each active county affiliate three votes, and letting the 13 highest vote-getters become the TeLL executive board.  With proportional representation for each state, however, the thorny issue would arise as to whether to go with census figures and give California the most representation in TeLL even though a smaller state may have more active partisans for the constellation law.  Another pitfall of which to beware is the strategy of creating a political party.  Although this kind of attempt might be well-meaning, it would inevitably divert energies into winning elective office, and candidates would soon compromise our agenda with campaigns that address the issues seen as key to their own personal victory.

[45] Eight “modern cliches” which Ted Sorrenson proposed in March, 1959 to summarize the Kennedy approach: “1. One devoted volunteer like Paul Revere is worth ten hired Hessians.  2. Personal letters count more than prestige letterheads.  3. Fifty $1 contributions are better than one $100 contributor.  4. A non political talk to the unconvinced is better than a political talk to the already convinced.  5. One session in a vote filled poolroom is worth two sessions in a smoke-filled hotel room.  6. (Regarding issues) It is better to rock the boat than to sail it under false colors.  7. No one’s vote can be delivered with the possible exception of your mother’s – and make sure she’s registered.  8. One hour of work in 1957 is worth two hours of work in 1958.”

[46] See, John MacMullin, “Repeal the 17th Amendment,” Posted October 23, 2000 with the von Mises Institute, www.mises.org/fullarticle.asp?printFriendly+Yes&control+533 ;  MacMullin, "Amplifying the Tenth Amendment," 31 Arizona Law Review. 915 (1989).

[46a] “Manhattan Declaration: A Call of Christian Conscience,” Nov 20, 2009. This manifesto is signed by 148 Catholic, Protestant, and Orthodox leaders. Commentators often remark upon the concluding line: “We will fully and ungrudgingly render to Caesar what is Caesar’s. But under no circumstances will we render to Caesar what is God’s.” For the full text of the M.D., see, http://www.firstthings.com/onthesquare/2009/11/manhattan-declaration58-a-call-of-christian-conscience

[47] Richard Killeen, the Easter Rising (New York: Thomas learning, 1995), p. 27.  Their leaders, Patrick Pearse, James Connolly and the others, knew that their chances of success were so slight as to be almost non-existent. Yet they fought, and died....The Easter Rising was a complete failure, which left large parts of Dublin in ruins; yet without it Ireland might never have been free of English rule. The leaders, alive, had very few supporters even among the Irish patriots; dead, they became and have remained their country's heroes.

            Casualties have been estimated at 500 for the British, 1000 for the Irish, including civilians, and 2.5 million pounds in damage to Dublin.

[48]Tim Pat Coogan, The IRA: A History (Niwot, Colorado: Robert Rinehart Publishers, 1994) p. 3

[49] 1st Maccabees 9:10.  “Then Judas said: God forbid we should do this thing, and flee away from them; but if our time be come, let us die manfully for our brethren, and let us not stain our glory.”

[50]Annedore Leber, ed. & tr. By Rosemary O’Neill, Conscience in Revolt: Sixty-four Stories of Resistance in Germany, 1933-45 [London: Vallentine, Mitchell, & Co., LTD, 1957]; see esp. Henning von Tresckow, p. 179, and Peter Graf Yorck von Wartenburg, p. 186 on how the attempted coup of July 20, 1944 gave honor to God.  Said conspirator Erwin Planck [son of pioneering physicist, Max Planck] before his execution by the Nazis, “Atonement must be made for the injustice that has been done.” p. 144.

[51] Davy Crockett, Autobiography (1834), quoted in Bartlett’s Familiar Quotations, 15th ed., p. 455.  “I leave this rule for others when I’m dead.  Be always sure you’re right – then go ahead.”  What a contrast to George Armstrong Custer, who threw caution to the wind, and for personal aggrandizement brought defeat and death down upon the heads of the 268 men under his immediate command.

[52]On the very occasion of approving the Bill of Rights, during September 25-26, 1789, both houses of the first U.S. Congress requested President George Washington to recommend to the people of the United States a day of "public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of government for their safety and happiness." (Italics ours)  [1 Annals of Congress, 1 Congress 1, pp. 948-50, and p. 90].
                        President Washington responded a week later, in part as follows.  "Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor..., I do recommend and assign Thursday, the 26th day of November next...that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us."...(Italics ours)  [James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 10 vols. (Washington, D.C.: Government Printing Office, 1896), 1:56].

[53] Application by the North Carolina legislature for an Article V Convention, May 12, 1865, joint resolution 60.

[54] Application by the Minnesota legislature for an Article V Convention, May 13, 1865, resolution number 5. (Italics on single are mine).

 

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