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 2 of a two-part series. Part 1 is available here.Martin writes: “Ever since the federal convention of 1787, it has been known that any convention called to address our Constitution under Article V provides the opportunity to impose a new Constitution. 5”
Known? Known by whom? Ms. Martin appears to hope that by throwing a footnote on this outlandish statement that you’ll accept it as somehow substantiated. But her Footnote Five in no way proves this preposterous claim. She states (in the footnote): “enemies of our Constitution knew from day one that they could get rid of our Constitution at an Art. V convention.”
The “enemies of our Constitution” in this case comprise one man: Patrick Henry. Henry fought with all his oratorical might to persuade Virginia not to ratify the Constitution, not knowing that New Hampshire had already ratified and put the document into motion just six days before Virginia’s convention adjourned. Seeing the final vote go against him, Henry lamented afterwards to a group of disgruntled Anti-Federalists that he had:
done his duty … in the proper place,—and with all the powers he possessed. The question had been fully discussed and settled, and, that as true and faithful republicans, they had all better to home!
A few months later Henry apparently had second thoughts; on October 27, 1788, he introduced a rather “impassioned” motion calling for Virginia to apply for an Article V Convention. As attributed to delegate Richard Bland Lee, the Federalists hoped to modify Henry’s resolution “so as to divest it of it’s inflammatory dress—or to postpone its operation to such a distant period as to give the people of America a fair experiment of the government.” Postpone they did; the resolution was not approved by both chambers and sent to Virginia’s delegation in Congress until 15 February 1789 and not presented on the floor of Congress until May 5th, the day after Madison announced his intent to introduce amendments creating a bill of rights later that month. In the meantime, Madison fretted in private letters that Henry’s resolution, or perhaps one by New York calling for a new general Convention might actually be taken seriously by the new Congress. So, what are we to make of this?
Patrick Henry had two hopes: 1) that he could force the call of a second convention, and that 2) he would be appointed to such a convention. Neither hope was realized. Henry may indeed have believed that once he arrived at such a convention he could employ his rhetoric to convince the other delegates to scrap the new Constitution and start over, designing something that aligned better with his view of the “correct” balance of power. But if this second convention followed in the footsteps of the first, and there is no reason to believe it would not have, the best Henry could hope for would be a new draft Constitution, which would then require a new round of ratification, needlessly delaying the start of the new government.
Now, given “the rest of the story,” let’s bring Martin’s stratospheric claim back down to earth. Instead of: “enemies of our Constitution knew from day one that they could get rid of our Constitution at an Art. V convention,” we believe it more honest to say: “One enemy of our Constitution, Patrick Henry, thought he might be able to cause “the destruction of the whole system” (as Madison put it) in an Article V Convention.” There are people today, no doubt, like Mr. Henry, hoping to use an Article V convention to impose a new Constitution. However, neither the words nor the spirit of Article V are in their favor.
Martin writes: “That’s why the enemies of our Constitution periodically push for an Article V convention.”
The Constitution today has many enemies, to be sure; but lumping proponents of an Article V convention together with them is reckless, even libelous. We could just as easily retort: “Anti-Constitutionalists continually fight against the only effective avenue we have to correct the damage of the Supreme Court.” Besides, supporters of the Convention of States Project do not “periodically push” for a convention, they are engaged in a full-court press, they have an actual plan and they are carrying it out. The opponents of Article V have no plan for restoring the Framers’ Constitution; they have great hopes to be sure, but no plan.
Martin writes: “… constitutionalists are warning Americans that if Congress calls an Article V convention, a new constitution with a new mode of ratification is likely to be imposed—probably a new constitution which moves us into the North American Union.
For every “constitutionalist” warning of the “danger” of an Article V Convention there is a constitutionalist pointing out that “business as usual” is not working to restore original constitutional order in our country.
Let’s be clear, the only Article V convention concept we support is one where 34 states have followed the protocol of the Convention of States Project (COSP), have included in their call the verbiage COSP recommends, and who have carefully commissioned their delegates with authority appropriate to the call. That is the only plan with sufficient safeguards in place to keep the convention limited to its Constitutional charter, and thus the only plan worthy of support. Over these many years, we have yet to hear anyone, including Ms. Martin, explain how, in detail, a new Constitution could be imposed on America by such a convention.Martin writes: “The reason we have a huge debt is because for 100 years, Congress has been spending on objects which aren’t on the list of delegated powers.”
Not quite. For at least 80 of Martin’s “100 years,” Congress has not been constrained to spending only on “delegated powers,” thanks to the U.S. Supreme Court. How did that happen? In 1936 and 1937, the Supreme Court re-interpreted the General Welfare Clause so as to allow Congress to spend money on anything that benefits the “general welfare,” as Congress is allowed to define that term. No longer is Congress limited to spending on enumerated/delegated objects alone. Martin knows this, of course, but it doesn’t fit her narrative, so this fact is conveniently ignored. Madison warned of this very possibility in a 1792 letter (as well as on the floor of Congress). Madison wrote:
… if Congress can do whatever in their discretion can be done by money, [as long as it] will promote the “general welfare,” the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.
In the same letter, Madison goes on to insist that “general welfare” was merely a “caption to the specified powers,” i.e., if spending took place on “Post Offices and Post Roads” (a delegated power), it had to be done in such a manner that it benefited the “general welfare” not the welfare of some individual or group. The Butler court thought differently. “General welfare” would no longer be a limitation on spending. It was to be a source of spending power in its own right.
That’s exactly what we have today, thanks to these two decisions by the “New Deal” Supreme Court. This is not the only reason for our immense national debt, of course. Given the authority to spend on anything, Congress could still have balanced their budget; but as we know, they didn’t and they don’t—they have no requirement to do so.
In sum: we have immense national debt today because: (1) Congress is not required to balance their budget, (2) Congress is given unlimited authority to borrow money on the credit of the United States, and (3) Congress enjoys no constraints on how that money is spent. If Ms. Martin wishes to once again have a government where Congress can only spend on “delegated powers” she must deal with the Court’s interpretation of the General Welfare Clause. Since the two decisions cited effectively amended the Constitution, the only effective way to reverse their effect is through subsequent amendment.
Martin provides us extensive critiques of the simulated convention’s proposed amendments. Her critiques are both unpersuasive and moot. The simulated Article V Convention conducted last year by Citizens for Self-Governance operated under time constraints unlike those of a real convention, it was an expensive undertaking by a non-profit advocacy group and thus had to be “short and sweet;” it was an attempt to demonstrate the process, not the result of a real Article V Convention (as well as to test proposed rules for a convention). In a real convention, we can expect proposed amendments to be subjected to significantly more deliberation and critique; it will have to be a bi-partisan affair, after all; Republicans do not control 34 state legislatures. It is even possible nothing will result from the first such attempt at a convention; in the present hyper-partisan environment, distrust abounds. And let us not forget that any proposed amendment resulting from a convention must still be ratified.
Martin writes: “The ‘simulated convention’ was a dog and pony show put on to produce amendments to con us into believing that a real Article V convention called by Congress won’t ‘run away’.”
The simulated convention was conducted to show the American public the process we can expect from a real convention. The delegates agreed upon rules at the start of the convention and they followed those rules. Certainly no one attended the simulated convention with the hidden goal of “hijacking” the convention for purposes other than proposing amendments, but neither would the rules have permitted such to occur, nor would the other delegates have sat idly by and allowed it to happen. Would you?Martin writes: “amendments can’t take away powers the Constitution didn’t delegate in the first place”
No, but amendments can effectively neuter Court decisions (see 11th Amendment and Chisholm v Georgia, for starters). An amendment can also repeal the 17th Amendment (see 21st Amendment) and restore the states’ power in the Senate, a change we believe Martin and Company supports. Sadly, this will never happen if Congress is left to propose it. An amendment could repeal the 16th Amendment and force the government to fund itself the way the Framers intended: “Taxes (on other than personal income), Duties, Imposts and Excises.” Once again, how likely is Congress to propose this? Amendments can restore the original understanding of terms such as “general welfare” (to distinguish it from “specific welfare” and restore its status as a caption, not a grant of power), they can restore “commerce” (to distinguish it from agriculture, manufacturing, assembly, etc.) and other terms whose inherent ambiguity allowed the Courts to “delegate” new power to the federal government, power the Framers never intended. Martin and Company may rail (as many of us have) that a court decision does not amend the Constitution and that opinions like U.S. v. Butler, Helvering v. Davis, and Wickard v. Filburn should not have the effect they do; but the American people have “moved on” from such an “antiquated” interpretation of the Constitution. They have agreed, “lock, stock and barrel,” with Chief Justice Evan Hughes, who famously insisted that “We are under a Constitution, but the Constitution is what the judges say it is.” We don’t agree with Justice Hughes, but the vast majority of Americans do. They have accepted the notion that a Supreme Court opinion effectively amends the Constitution. As a result, the Constitution Annotated is the operational Constitution today.
In Endnote 1, Martin writes: “If your spouse commits adultery, will your marriage be saved if you amend the vows to permit adultery? When People violate the Ten Commandments, will morality be restored if we amend the Ten Commandments to permit sin?”
Of course the Ten Commandment should not be changed simply because they are violated. But our “Ten Commandments of American Government,” i.e., the U.S. Constitution, have already been amended by the Supreme Court to allow the confiscation of our wealth, property, and liberty. The question we face is: how long will we permit this “adultery” to continue?
Ms. Martin’s refusal to accept this intrinsically constitutional remedy to restore the limits of the original Constitution demonstrates an alarming acceptance of the status quo.
With Martin’s concluding paragraph as a guide: Statecraft is indeed “serious business” which requires “systematic study” to master, but the Constitution was written to be understood by us all. Any citizen searching for the reasons today’s federal government enjoys near plenary power over our lives will soon discover why this is so. That we are even having a simulated convention demonstrates vividly that we live in a time where Jefferson’s “chains of the Constitution,” chains intended to “bind men down from mischief,” have been rendered into rubber bands by a Supreme Court that has often been intent on expanding the powers of the federal government, and has done so quite effectively. “People of good intent” can be equally misled by persons unwilling to trust the wisdom of the Framers of the Constitution, men who provided us with a method of repairing damage inflicted upon this magnificent document, a method that bypasses the other unfortunate circumstance foreseen by the Framers: an obstinate Congress. It is time for an Article V Convention.
 John P. Kaminski and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution, 10:1762, (Madison: State Historical Society of Wisconsin. 1993)
 United States v. Butler, 297 U.S. 1 (1936).
 Helvering v. Davis, 301 U.S. 619 (1937).
 James Madison to Edmund Pendleton, January 21, 1792.
 Article 1, Section 8 Clause 7.
 Yes, the Supreme Court could reverse their 1936/37decisions should they someday receive and take a case which allows their earlier opinions to be revisited. This is quite unlikely to happen.
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.