Insurgency 101, Part Four: Good News; Bad News

The initial phase of an insurrection of suede would be to secure the requisite 34 state applications for an Article V convention. My previous article in this series, “Wilderness Road,” makes the point that a left-center-right coalition stands an excellent chance of persuading a sufficient number of the 7400 state legislators. The next step is to persuade, pressure, or somehow compel Congress to perform its constitutional duty, under Article V.

A consensus of the Framers saw the matter as absolutely obligatory. In the Federalist Papers , #85, is 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. ”  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.”

Once Congress issues the call for a convention, more issues arise. Might Congress itself appoint the delegates? Russell Caplan, a leading authority on the convention, says no. But he is more worried about another tactic: Suppose in hopes of hamstringing the convention, Congress tries to regulate the convention’s internal rules ­– say by requiring a supermajority? Says Caplan: “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.”

If after the opening gavel the convention defies Congress and insists upon the right to make its own rules, it would, Caplan insists, be quite in conformity with the Constitution. A supermajority requirement “can be imposed only by the convention itself, not from without by Congress.” And yet in the Ervin Bill of 1973, the Senate voted to require a 2/3 supermajority in any Article V convention. Happily, Senator Sam Ervin’s bill failed in the House. But evidently we cannot take for granted that a future Congress will honor the lex majoris partis as regards the freedom of a convention to determine its own rules.

Another widely advertised concern is popularly termed the “runaway convention.” 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 call a convention, what then? The answer seems apparent from a practical standpoint, namely that three-fourths of the states (38 states) would not likely ratify something controversial which they had never proposed in the first place. Indeed it might not get that far. Caplain contends (p. 152, cf. 148-49) that ultra vires amendments proposed by a convention “can be withheld from the states by congressional refusal to assign a mode of ratification.”

This safeguard is, however, a two edged sword. It could be used against a dutiful convention, rather than a runaway. In which case, the best defense would be to borrow a tactic from the grand Convention at Philadelphia, by stipulating in the text of the arch-amendment that ratifying conventions are the indicated mode.

In Article V of the Constitution, which governs the amending process, the Framers indicated no difference in how to ratify a constitutional amendment proposed to the states by Congress, vis-à-vis an amendment proposed by a Convention. Either way, there are two methods to ratify what is proposed:

(1) Ratifying 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 (p. 215, fn. 57), Russell 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….” Ratification conventions would also be a surer way to secure the consent of the governed, than the alternative method which Article V specifies for ratification, namely the way more commonly used in American history, as follows:

(2) 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 ratifying conventions appear to be the preferable method, the second method of ratifying the work of a convention has potential too, especially if a sweetener is included in the arch-amendment.

My Treatise on Twelve Lights , concludes with a prototype text for a convention agenda. Included is a plank which constituents might obligingly point out to state legislators. Most solons will be favorably disposed to the idea of enhancing their own status and power, by restoring some of the national influence which state legislatures lost almost a century ago. In 1913 a constitutional Amendment took away their power to appoint U.S. Senators. As proposed in my prototype, the arch-amendment would empower state legislators to initiate recall action against members of the U.S. House.  This would not only democratize the House, but would hold U.S. Representatives more accountable to the people after another reform, term limits, goes into effect against incumbent Congressmen.

Again as to the sweetener: Only the voters at the polls might actually recall a Congressman, but the power of state legislators to put a Congressman’s continuance in office up for a popular vote, will afford our state legislators far more voice and clout in national affairs than they have had since the eve of World War I.  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. State solons should hear about this idea before and after the convention – both during the campaign to secure 34 state applications for a convention, and then during the effort to secure 38 state ratifications.

If all the above, including reversing the damage inflicted on our country since c. 1963, sounds like an impossible dream; then look to the reality of history. In the early 1780′s 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 achieving a “Radical Turnabout ” in postmodern America 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.

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, the Article V convention, as a means to revive the American miracle.

By

writer, retired history teacher, practicing cradle Catholic, lecturer for Knights of Columbus, council 1379. Knight of the Month, October 2008, February 2009.

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  • cpageinkeller

    Excellent article Dr. Struble. Protection against an Article V convention going “rogue” clearly articulated. Only three large hurdles.

    1) State Legislatures: Legislatures are currently quite polarized, mainly along regional lines. Many are to the left of the Congress of the United States

    2) Leadership: I see little evidence of statesmen of the quality with which we were blessed at our founding. I think a Reaganesque figure could assemble the best we have, but we currently have no “Reagan” in evidence.

    3) Moral consensus: I submit that a uniform morality was one of the factors that bound our founders. Secular humanism has destroyed that uniformity.

    We may well arrive at a point when these factors will align to permit an Article V Convention. My opinion remains: Things must get a lot worse than they are now. Time will tell. There are encouraging signs:http://oathkeepers.org/oath/

  • http://www.tell-usa.org Robert Struble, Jr.

    Part one of the Insurgency 101 series is, “Dare We Resist?” http://catholicexchange.com/2009/10/01/122329/

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