Insurgency 101, Part Three: Wilderness Road

My “Insurrection by Convention (CE July 29, 2009) examined the Article V convention process in terms of opportunity and safeguards. On the question of opportunity, the essential point was that a simple and temporary unicameral assembly would circumvent the obstructive procedures that are certain to impede or dilute the reform process if we try filtering it through a corrupt and dysfunctional Congress. In other words, the convention which the Framers of the Constitution bequeathed to us offers a realistic opportunity for major and meritorious reform, for “Radical Turnabout ” in our country’s direction.

As for safeguards, the ratification or refusal to ratify whatever a convention might propose is a procedure well defined in the written Constitution. It is an easy and straightforward process for states to check anything that emerges from the Convention. The Article V Convention can only propose. Nothing it proposes is more than a scrap of paper unless three fourths of the states (38 of 50) ratify it. The fate of the ERA as proposed to the states in 1972, but still unratified by the ten year deadline in 1982, shows how measures must run a formidable gauntlet of the states before going into force.

The Article V convention thus offers opportunity tempered with safeguards. Contrast this system with the exceedingly dangerous process of amending from the bench, where judicial edicts require no ratification at all before going into effect. This latter process is responsible for a host of evils, such as expelling religion from public education after 1963. In place of prayer exercises and Bible reading, our schools now have metal detectors.

Since our radical problems will require radical solutions, the Convention offers a unique opportunity like nothing else politically available. Since little of help can be forthcoming from the Executive, Legislative or Judicial Branches at the Federal level, then by process of elimination we must look to the states.

The number of state applications required for an Article V convention is two-thirds, or 34. Only the state legislatures may apply for a convention. The 7400 state legislators in the fifty states can be approached, however, by the general electorate through lobbying, campaigning, and in nine states by indirect initiatives . We can use all these methods and others of exercising leverage on our state legislators. Without question, however, this will be a formidable task politically.

In the second chapter of my book, Treatise on Twelve Lights , I propose a left-center-right coalition that would muster enough political clout to secure applications from 34 state legislatures. Whether such a coalition can be formed, and held-together long enough to win one arch-amendment to the Constitution, remains to be seen. But such is the only way, in my view, to overcome the well-financed and highly placed opposition that will surely mobilize against a genuinely populist agenda for a convention.

A sizeable remnant of Americans favor cultural reforms like reasserting the sanctity of life, defending traditional marriage, restoring religion to the public square, & etc. But in being “wise as serpents and guileless as doves,” we cannot be naïve or oblivious to the fact that ours is a polarized and now largely paganized nation. In such a political/cultural environment, the remnant needs more allies than just those positioned to the right on the political spectrum. To win over citizens who are less than conservative culturally, I propose an exchange of quid pro quos . In return for Judeo-Christian planks in the prototype agenda for a convention, let us offer reforms that address warmongering, ecological responsibility, and full-employment of labor. Such issues enthuse the left, and will hopefully bring a critical mass of left-leaning Americans into the coalition. We can also recruit the center by offering popular planks like term limits and other reforms to clean up and re-democratize the Congress, recasting the Legislative Branch according to the oft cited but no longer honored axiom, “here the people rule.”

And so, having once put together a coalition of conservatives, centrists, and liberals; the challenge will be to lobby the 7400 state legislators on behalf of a single subject matter. The planks in our platform would constitute a predesigned convention agenda, or constellation amendment, that addresses left-center-right concerns.

In formulating the state applications for a convention, it would be a major blunder to “give Congress the alternatives of calling a convention or itself proposing an amendment on the same subject.” In that case, says Russell Caplan, “Congress may take advantage of the offer and propose the amendment, rendering the petitions obsolete.” As Nobel laureate, James M. Buchanan, observes, “‘Congress, logrolling across its special interests…, would provide the weakest possible version ….’” [From Russell L. Caplan’s definitive work, Constituitonal Brinksmanship, Amending the Constitution by National Convention (New York: Oxford University Press, 1988), p. 127, quoting J.M. Buchanan].

Having once secured the requisite 34 applications for a convention to consider, our next step is to elect convention delegates who are open to our prototype arch-amendment. Here the parameters cease to be so explicitly predefined. Russell Caplan , chapters 5-7, has delineated the range of possibilities in far more detail than this short article can attempt. Let me summarize briefly both the good news and the bad news.

The Framers did not bureaucratize the Article V convention. They left much of its form for the present generation to decide. The good news is this: With regulations still undecided on the number of delegates, on the amount of their pay, and on procedural rules that will govern the assembled delegates after the opening gavel; high priced consultants Carl Rove, Dick Morris and their ilk, will ply their trade on uncertain terrain. In other words, big money will face difficulty deploying its well oiled machine whereby to inundate legislators with hoards of lobbyists sent to purchase prized legislation.

The bad news is that concerned citizens will be posing some questions for which convention advocates cannot offer exact answers. For example, how to treat convention advocates like FOAVC ? Their leaders reject Russell Caplan’s informed conclusion (pp. 98-99) that the Framers intended applications to be counted according to subject matter. FOAVC argues to the contrary, that a convention call by Congress is long overdue, given that fifty states have already submitted some 750 applications during many decades on a wide variety of subjects.

Or, more gravely, what happens if Senators and/or Congressmen stonewall, in order to keep the amending process in their own hands? What if Congress disregards or finesses 34 contemporaneous applications on a single subject matter? Suppose the Senate or the House simply refuses to issue the convention call? Would a court order be forthcoming, and would the Legislative Branch obey the Judicial Branch? 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.

If the Court refuses to help, could the states organize the Convention on their own, without the consent of Congress? If they proceed without the constitutionally indicated call by Congress, would the courts declare any ratified Amendment that issues from the Convention null and void? Yes, according to Russell Caplan. If Caplan’s scenario comes to pass, might thwarting of the convention lead to armed insurrection?

Clearly, we the people will be proceeding along a wilderness road that is obscurely mapped and, as it were, unpaved. But at least, like an unearthed treasure map, the legacy of the Framers shows us a road. Pressing forward along a primeval trail is preferable to trench warfare that is going badly in the postmodern political desert.

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

    Dr. Struble, I hate to disagree – but I do. I think an Article V Convention at the behest of 2/3 of the legislatures would be an absolute disaster – at least at this point in time.

    You appropriately point out the political polarization of our populace, and that is only the ones who are even politically involved. In order to achieve consensus, you propose

    “To win over citizens who are less than conservative culturally, I propose an exchange of quid pro quos . In return for Judeo-Christian planks in the prototype agenda for a convention, let us offer reforms that address warmongering, ecological responsibility, and full-employment of labor.”

    Several points:
    1) We are not warmongers and our hegemony is accidental rather than by design – we simply filled void in defending Western Civilization the left by a Europe exhausted by two world wars on their turf and exacerbated in their turn toward moral relativism and secularism. (Sadly, we are headed that way, too)
    2) Eco-terrorism by law and administrative oversight (EPA) is already one of our economic strictures and the actual “religion” of many on the left.
    3) Full employment would be contingent on unions behaving reasonably – not likely to happen – unions have morphed into socialist organizations that support the radical left and receive their sop from the left in return.
    4) Quid pro quo is one of the reasons that we are in the situation in which we find ourselves now.
    5) I can’t conceive of the coalition you describe ever making Judeo-Christian morality any more prevalent than it is now. The same groups that are militantly pro environment, pro labor, and anti defense are also largely secular humanists. In this equation, there would be only give, not give and take.
    6) Why should we think that the state legislatures are any more immune to “big money” and lobbyists than the Congress of the United States? In addition, there are serious regional differences in attitudes about the role of government among the several states. Contrast the legislative products of Massachusetts and California with Texas and Oklahoma.
    7) Even if a resonable “blanket amendment” or amendments were generated by the state legislatures, it could be struck down judicially or administratively – as you point out.

    Here is what I think:
    1) Things much get much worse than they are now economically and culturally – and they are headed in that direction and it will happen more quickly in some states than others and in some regions than others. Typically, in bad times, people turn to God and become much more conservative.
    2) Angry people must elect the right people to the state legislatures.
    3) State legislatures must adopt very strong positions with regards to existing amendments IX and X. The states must refuse to implement legislation they deem unconstitutional, particularly unfunded mandates and regulatory rulings that have no Constitutional basis. The states must be willing to stop collecting and paying federal taxes. In the end they must be willing to risk violent rebellion and/or secession. Hopefully, it won’t come to that, but it is clearly a right of the states. As I recall, only about 1/3 of the population was strongly in favor of our own separation from England (if we had been able to poll in those days).
    4) The mantra of all conservatives must become Constitutionally limited government.

    In brief, things must get a lot worse before anyone has a shot at making them better. We are headed there. When we get there, I think our populace will be much less polarized and more unified in a return to the actual use of our Constitution – if we survive it all. That might be the time for an Article V approach to amendment.

    This opinion is free, and worth every penny!

  • Warren Jewell

    How delightfully droll – “This opinion is free, and worth every penny!” Yet, you are accurate for all of us.

    I have read Mr. Struble with my own cautions about our more and more uninformed but ‘entitled’ populace. They must become shorn of their purported entitlements in the collapse becoming more and more obvious – which in their uninformed ignorance most cannot yet observe; secularist ‘progressive’ hedonism and nihilism promoted by elitists also seeks to keep them blind.

    Once so stripped and deprived, almost literally ‘naked’ and ‘starving’, and more ‘on their own’ than at any time in the (to-date) last seventy years, they will have no choice but to become informed or genuinely die off. The ‘safety net’ will either be locally (‘subsidiarally’) repaired, restored and strengthened, and to which they become actively and enthusiastically part, and even as nationally removed, or they will fall through, and hard.

    It would seem that only then Mr. Struble’s call will find ears, hearts and souls. And, even as I dread such future for its initial agonies for my daughter and her offspring, there just may be no way. As well, we may have better practical as well as spiritual odds praying and repenting toward Christ’s Second Coming . . .

  • billwalker

    “The bad news is that concerned citizens will be posing some questions for which convention advocates cannot offer exact answers. For example, how to treat convention advocates like FOAVC ? Their leaders reject Russell Caplan’s informed conclusion (pp. 98-99) that the Framers intended applications to be counted according to subject matter. FOAVC argues to the contrary, that a convention call by Congress is long overdue, given that fifty states have already submitted some 750 applications during many decades on a wide variety of subjects.

    Or, more gravely, what happens if Senators and/or Congressmen stonewall, in order to keep the amending process in their own hands? What if Congress disregards or finesses 34 contemporaneous applications on a single subject matter? Suppose the Senate or the House simply refuses to issue the convention call? Would a court order be forthcoming, and would the Legislative Branch obey the Judicial Branch? 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.

    If the Court refuses to help, could the states organize the Convention on their own, without the consent of Congress? If they proceed without the constitutionally indicated call by Congress, would the courts declare any ratified Amendment that issues from the Convention null and void? Yes, according to Russell Caplan. If Caplan’s scenario comes to pass, might thwarting of the convention lead to armed insurrection?”

    With respect to Mr. Struble, he fails to mention a few details about FOAVC. First of all our “stance” regarding the fact that applications are counted by a simple numeric count of applying states and the fact a call is peremptory not to mention the fact it is criminal violation for Congress not obey the Constitution is based, not on our personal opinion but on public record. Specifically, in a federal lawsuit in 2006 the federal government admitted the following in open public court: (1) a convention call is peremptory; (2) a call is based on a simple count of applying states with no other terms or conditions and (3) the members of Congress are in criminal violation of their oaths of office for refusing to obey Article V. The admission was made officially and formally by the Solicitor General of the United States acting as attorney of record for all members of Congress before the Supreme Court of the United States.

    Mr. Struble also fails to point out that even if his position is correct, the public record of the applications which can be read at http://www.foavc.org clearly show that on several occasions the states have submitted sufficient applications in one amendment issue to trigger a convention call.

    These events answer the rest of Mr. Struble’s questions. The courts have held that under the political question doctrine (see FAQ 9.1 FOAVC website) the government can veto the Constitution and refuse to obey Article V. Therefore there is no hope from the courts at this point though another lawsuit may have a different outcome. As to the states organizing a convention, the Constitution mandates that such a compact must have approval of the Congress. Beyond which, it makes no sense that the states act in violation of the Constitution in order to insist Congress obey it. The only solution is obviously to force Congress to obey Article V.

    As no national attention has yet been brought on this issue, the answer is first to bring the facts to the attention of the nation such that members of Congress have to answer such questions as why they believe they have the right to veto the Constitution in such public forums as they cannot avoid these questions as they have in the past and first see if this public pressure accomplishes the job.

    Finally as to Mr. Caplan’s comments on page 98-99. The public record shows that even the states don’t agree with his interpretation. In 1929, as shown on the site, an application was submitted demanding a convention based on the numeric count of applying states. It listed 35 states, more than is needed today. Beyond which the admission of the Congress (acting through their attorney of record) as to the terms of when a convention call must be made being the only official statement ever made by Congress on the subject, clearly states a convention call is peremptory and based on a simple numeric count of applying states WITH NO OTHER TERMS OR CONDITIONS. This clearly means the applications do not have to be the same amendment issue.

    The reason for this should be obvious. Congress would simply say the amendments proposed had different language, too old, not sent by the same identical legislatures or any number of false standards to eliminate enough applications to not call a convention. Finally, Caplan fails to read the language carefully. The applications are for a convention call, not an amendment as the convention proposes the amendments, not the states. If the states could do so, they could then propose and ratify giving them absolute power, something the founders avoided at all costs. The language states, “on the application of two-thirds of the state legislatures [Congress] shall call a convention to propose amendments…”

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

    To repeat: Pressing forward along a primeval trail is preferable to trench warfare that is going badly in the postmodern political desert. In other words, we are losing, and will have no country to bequeath to our descendants, unless we are willing to apply John Paul Jones dictum: “He who will not risk, cannot win.”

    This is no time to play it safe; no time to focus so much on the difficulties in a possible solution, that we fall prey to self-imposed paralysis.

    A little counter-factual history may help. It is mid-December, 1776, and the beleaguered soldiers at Valley Forge are pessimistic about a proposed plan. Launching a surprise attack on Trenton in mid-Winter is contrary to sensible military practice in the 18th century. So much could go wrong. Indeed it “would be an absolute disaster – at least at this point in time,” warns Major cpageinkeller.

    Col. Jewell agrees. Instead, we need to let soldiers and citizens suffer still more hardship, he says, until “so stripped and deprived, almost literally ‘naked’ and ’starving’, and more ‘on their own’ than at any time in the (to-date) last seventy years,” they will turn to God. Then the time will be ripe for reform.

    And so the army stayed in their winter quarters at Valley Forge. There was no crossing of the Delaware. Oh, and also, Washington, Adams, Jefferson, and Franklin were all arrested. After a trial presided over by Lord Besong they were convicted of treason, and of failing to submit to properly constituted authority. George III actually took pity on the foursome, thanks to the prayers of the Loyalists who appreciated Washington’s moderate way of conducting the war. The gracious king granted the four their final request: death by firing squad rather than the gallows.

  • plowshare

    “Valley Forge in 1776″ is an anachronism. It was in the winter of 1777 that Washington stayed at Valley Forge, and he did not venture forth into battle until the next spring, when he fought an indecisive battle at Monmouth, NJ.

    That was Washington’s last major battle until Yorktown in 1781.

  • http://www.sunshinegoods.net jaxson

    I understand the concept of a coalition, but is it right to call these quid pro quos when they are matters of justice: wars to achieve the tranquility of order, ecological responsibility, full-employment of labor, and term limits and other reforms to clean up and re-democratize the Congress?

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

    Jaxson,
    From your standpoint, and mine, these reforms have intrinsic merit. No need to twist our arms. But for some of our fellow conservatives, they may come across as reluctant concessions. To reaffirm national sovereignty, for example they would accept a jobs levy. To reinforce the 2nd Amendment, they could live with limitation of the imperial Presidency.

    Likewise for a portion of citizens on the left. Putting religion back in the public square, and checks to the culture of death, may mean concession on their part. How so? To obtain what they cherish more — namely checks against the exploitation of labor, against environmental irresponsibility, and against presidential wars. For example, many rank and file labor union members will, if forced to choose, prioritize full employment over same sex marriage.

  • cpageinkeller

    Dr. Struble wrote:

    “A little counter-factual history may help. It is mid-December, 1776, and the beleaguered soldiers at Valley Forge are pessimistic about a proposed plan. Launching a surprise attack on Trenton in mid-Winter is contrary to sensible military practice in the 18th century. So much could go wrong. Indeed it “would be an absolute disaster – at least at this point in time,” warns Major cpageinkeller.”

    Quite the contrary. Major cpageinkeller would, go for it! Conditions at Valley Forge were at rock bottom already. It was a great all or nothing move.

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

    cpageinkeller,
    Are you saying we’re not as bad off as our ancestors were in 1776?

    In my view, we’re much worse off. America the Beautiful is locked away in a postmodernist prison, while the pagan pretender, America the Monstrosity, is in the process of consolidating her reign. At least George III was a Christian tyrant.

    The necessity of crossing the Delaware (Article V) is upon us if we would, once again, “secure the blessings of liberty for ourselves and our posterity.”

  • levi78

    Great article and motivations as well as discussion going on here. While I don’t think we’ve reached “Valley Forge” dire straights, we’re but a few paces away from it.

    I do think, however, that there are a lot of apathetic people/regions out there who haven’t been exposed to the conditions others are in…and that if they DID get exposed to said conditions and hardships, something inside would be awakened, and we’d see a lot more dust being stirred up about Congressional/Presidential reform.

    In other circles, I think there are people who are fired up about changing things for the better (what we’re talking about here, vs. someone else’s viewpoint on what they think is better), yet they don’t have an idea how, where, when they can contribute.

    Before our ability to get the word out gets shut down (either internet or peaceable rallies/word of mouth), the (proper) word MUST get out, and shortly thereafter, a serious full court press on ALL members of Congress. No matter what they say, it’s what they DO, that they believe in.

    Without a doubt, prayers offered up for the Pope’s safety and constant adherence to Christ’s heart is of utmost importance, first and foremost. Next, prayers for the conversion of those in chairs of leadership (I dare not call those people “leaders” as some clearly show they are not) choose to do what is Right, True, Wise and Honorable (capitalized letters denoting that these qualities adhere to same standards of Christ).

    The next item to pray for, is for people’s hearts to be open to the Holy Spirit, and allow them to be moved by It. And allow the Spirit to guide us in these national (& global) matters.

    Prayers never hurt.

    So, I think the next question is, once people recognize and realize that if we are not in the mire yet, we certainly are close; what can be DONE, once it’s mostly agreed upon that something must be done, before it’s too late? How can we “mobilize” our efforts off the page and into action?

  • 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/

    Part four, “Good News, Bad News,” is at
    http://catholicexchange.com/2009/10/22/122337/

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