Submitted by Gary Porter and David Dietrich
The Article V Convention for Proposing Amendments and Joanna Martin’s Selective View of History
This is Part 1 of a two-part series.
Joanna Martin, aka “Publius Huldah,” has a selective view of history. Once again, in her article, “COS Project’s ‘Simulated Convention’ Dog and Pony Show and What They Did There,” she attempts to use it to scare us with the “horrors” of Article V.
Martin writes: “ … for the past 100 years, the federal and state governments and the American People have ignored our Constitution.”
In the face of such a broadly cast net, we agree, certainly as regards the American people, but to respond directly: so what? What does Ms. Martin intend to do about this? What is the constitutional remedy she offers? Moreover, how can We the People return our nation to “Original Intent”? While we don’t doubt Martin’s patriotism, she has a jaundiced view of what is a clearly constitutional method of repairing a damaged document. The Declaration is very clear on this subject. So is Article V. Instead of helping to restore the Constitution’s “chains,” she is “chained” to the status quo.
Martin Writes: “ … Delegates would have the right, as recognized in the 2nd paragraph of our Declaration of Independence, to throw off the Constitution we have and write a new Constitution which creates a new government.”
Really? Let’s review: “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” As Jefferson implies, the Right of the People is in effect at ALL times. But, this broader right has nothing to do with a Convention for proposing Amendments. Convention delegates are most certainly NOT delegated the right to do anything they want, much less “write a new Constitution, which creates a new government.” A plain reading of the Article V text makes this clear to any fourth grader. Once again, only “the People” may delegate the right to transform their government. Since an Article V Convention for proposing Amendments has only one delegated goal—to propose Amendments, any fear of something else emanating is misguided.
To be sure, anyone, any group, even Congress could draft a new Constitution and post it on the internet for all Americans to consider. Mr. Rexford G. Tugwell, a fellow at the Left-leaning “Center for the Study of Democratic Institutions,” drafted a looney “Constitution for the New-States of America” in 1974, well before the internet was even a gleam in Al Gore’s eye. Mr. Tugwell died five years later and someone eventually posted his “masterpiece” on the internet. Read the document. Why Martin and Company believe Article V convention delegates, lacking any authority to do so, are going to feel empowered to take this or any other “constitution” and put it into effect “on behalf of the American people,” is simply beyond comprehension. Somehow she has convinced herself (if she is to be believed) that this is going to happen. And the American people are apparently going to sit back and let this happen? Astounding! If you believe that, we have a bridge we’d like you to look at. An Article V Convention attempting to impose a new Constitution on America is a flight of fantasy!
Martin writes: “ … on February 21, 1787, the Continental Congress called a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation.”
Martin’s statement is incorrect on two counts.
The 1787 “Grand Convention” was actually called for on 14 September 1786 by the delegates of the Annapolis Convention. Their call read:
Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavours to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.
The states receiving this call believed it to be both authentic and authoritative. By 21 February 1787, when Congress got around to endorsing the call, seven of the twelve states that eventually responded had already selected and commissioned the delegates they would send to Philadelphia. The 55 delegates who attended each carried a copy of their commission. Their commissions served two purposes: they authenticated the delegates as representatives of their state and they set the boundaries of the delegates’ authority. Virginia’s commission, the first one passed and one which served as the model for others, authorized their delegates to:
assemble in Convention at Philadelphia as … recommended and … join with [the other delegates] in devising and discussing all such Alterations and farther Provisions as may be necessary to render the Foederal Constitution adequate to the Exigencies of the Union and in reporting such an Act for that purpose to the United States in Congress.
It should be obvious where Virginia got the wording for its commission.
On 21 February 1787, when Congress finally passed and forwarded their non-binding endorsement of the convention idea, it read in part:
Resolved, That in the opinion of Congress, it is expedient, that on the second Monday in May next, a Convention of Delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation …
This is where those opposed to a convention normally stop quoting, and you will see why; the resolution goes on to say:
and reporting to Congress and the several Legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of Government, and the preservation of the Union. (emphasis added)
Hmmm, here we see the same sort of wording included in the Annapolis Convention’s initial call and Virginia’s (and those of many other states).
There was only one real requirement to be met in the initial call and the seven which immediately followed it: render the federal Constitution adequate to the (needs) of Government. What do those words mean? “Render” (i.e., change) the “federal Constitution,” to make it “adequate to the (needs) of the Union” (or “the needs of government and the preservation of the Union”). In sum: change the Articles in such a way that the Union is preserved. That’s your charter guys, now go to it! Yes, Congress had revision in mind, but one that would also meet the second goal: preserve the Union.Martin writes: “the Delegates wrote a new Constitution, with an easier mode of ratification, which created a new government.” (emphasis added)
Quite wrong. The Constitution drafted in Philadelphia created absolutely nothing, nada, zip. To put it in Madison’s words, their proposal was “merely advisory and recommendatory.” The Constitution drafted by the 1787 Convention was of “no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.”
Abiding their commissions, the delegates forwarded “such an Act for that purpose to the United States in Congress.” As Congress had requested, the draft would have to first be “agreed to in Congress, and confirmed by the States” before it “created” anything. But it is important to Martin’s narrative that you believe what happened in Philadelphia created a new government. Why? She wants you to believe it could happen again.
But there is a not too subtle difference between 1787 and today: the Constitution itself. The 1787 Convention was conducted in the environment created by the commissions of the twelve states which attended, without the constraints imposed by today’s Article V. The shortfalls of Articles of Confederation guided them.
Any convention today, now that the Constitution is in force, must comply with the constraints of Article V as well as with the commissions of the attending delegates. Article V succinctly calls this event “a convention for proposing amendments.” How can it legitimately/constitutionally be anything else? This is not, and can never be, a “convention for drafting a new Constitution,” which is precisely what Martin and Company would like you to believe it will be. Without a shred of constitutional evidence, opponents insist on calling a modern Article V convention a “constitutional convention” (aka: “con-con,” as though you’ve been “conned” twice, get it?). Relying on a contorted interpretation of Black’s Law Dictionary (which, of course, is no more legally binding than Webster’s 1828) that a “constitutional convention” is one which is formed for (among other purposes) “amending a constitution,” opponents hope to convince you that because an Article V convention has something to do with “amendments” it is therefore formed to “amend” the Constitution. “Amendments” is a plural noun, “amending” a verb. “Amending” and “proposing” are quite different verbs. An Article V convention has no authority to amend the U.S. Constitution, it has only the authority, clearly specified, to “propos(e) amendments.” This is no “constitutional convention.” Therefore, you have not been “conned,” except, perhaps, by those who believe saving the Republic is not worth actually using the Constitution’s own provisions to do so.
Madison’s “make nice” remarks in Federalist 40 notwithstanding, the 1787 delegates produced a document that would, if and once ratified, “render the federal Constitution adequate to preserve the Union,” nothing less than a new bottom-up plan of government would have done that; the Articles were beyond revision—they did not support an effective union.
Under the Articles, there was a single house of Congress, it didn’t reflect the grossly different populations and proportionate political power of the states, a second chamber had to be created. There was no Judiciary, one had to be created; there was no true Executive, one had to be created. The states had too much power; they had to be placed subservient to the “Supreme Law of the Land.” Congress had no authority over interstate commerce; this authority had to be created, and on and on. No “tweaking” of the Articles would have produced these changes. Bottom line: If the delegates had attempted a mere revision, as Madison could well see, little would have remained of the original Articles—and little did.
Martin writes: “James Madison invoked the Delegates’ right to abolish our form of government, as recognized in the Declaration of Independence, to justify ignoring their instructions and drafting a new Constitution which created a new government.”
Not quite. While Madison cited the right of the people to abolish their government in Federalist 40, he didn’t invoke that right: The American people did, acting between 4 December 1787 (the start of Delaware’s ratifying convention) and 29 May 1790 (the end of Rhode Island’s). More than 1600 duly-sworn representatives of “We the People” ratified the Constitution that had been proposed in Philadelphia. If Madison had “invoked the right,” as Martin claims, ratification would have been unnecessary.
We should also point out that no state was forced to ratify and join the new union; as we all know, it was totally voluntary, an act that two states, North Carolina and Rhode Island, refused to make until a Bill of Rights had been added. Madison “invoked the Delegates’ right to abolish our form of government” to the same extent that Mr. Tugwell did in 1974.
 Barton, David. Original Intent, Wallbuilder Press, 1996.
 Both the Annapolis and Virginia documents were strongly influenced by James Madison, the Virginia commission was probably drafted by him.
 Most scholars accept that “federal Constitution” refers to the Articles of Confederation, but this is not the only possible interpretation. According to Jefferson, the American colonies had a Constitution in 1776, one that was being violated by King and Parliament. Jefferson complained the colonists were being subjected to “a jurisdiction foreign to our Constitution.” The discussion of this intriguing idea will await another day.
 James Madison, Federalist 40.
 But a few key clauses were retained; vestiges of the original Articles, so it can be argued that the new Constitution was indeed a revision, however extensive.
 “to put into effect or operation.” Merriam-Webster Online Dictionary. Accessed at https://www.merriam-webster.com/dictionary/invoke.
Editor’s Note. An Article V Convention has strong proponents and opponents locally and across America, including within conservative circles. Smart, well-intentioned people disagree on such a convention. The Fairfax Free Citizen welcomes both pro and con articles and comments about it. An open and insightful exchange of ideas about a possible Article V Convention will help inform readers and may contribute to building a consensus on this controversial subject.