The constitutional convention has not yet been tried as a method of amending the constitution for good reason. The fact is that the Con Con is an admission of failure.
The most recent Con Con was in 1787, and rather than simply fulfill their mandate of amend the articles of confederation, the delegates to that convention simply unrolled a completely new version of our governing documents most commonly referred to as the Virginia plan. Through wrangling, and political deal making, the current Constitution was penned, and state conventions started to debate passage. Never once was it considered to simply amend the articles as they were instructed. They were scrapped, just like our current Constitution would be if we form another Con-Con.
The fact is that the representatives of liberty that would be sent to any Convention would be vastly outnumbered by the representatives of vast and arbitrary state power. These are the purveyors of war machines, the beggers, the thieves being slopped currently at the federal trough. All that need be done is observe the results of the most recent federal congress’s attempts to limit the budget deficit. Even with all the cards (any bill raising revenue must originate in the House, and any spending must be approved by the house) they allowed the debt limit to be raised 3 times (most recently completely suspended, so no number is actually in force now). They have fully funded Obamacare, and bailed out insurance companies to mask its failure. Unemployment has continued on extended to 2 years.
If this is all that the biggest election victory for the Constitutional conservatives” can achieve, what makes anyone think that we will be successful in a convention fighting off the forces of socialism/fascism that will surely try to buy the convention results? And don’t fool yourself, besides the outlier freedom fighter who is in favor of the Con con (Levin, Natelson, Gutzman), you have big time leftists such as George Soros, Alliance for Democracy, Center for Media and Democracy, Code Pink, Independent Progressive Politics Network, Progressive Democrats of America, Sierra Club, Vermont for Single Payer. The “move to amend” website can be found here with all the left wing organization literally begging for us to make this mistake.
So let’s look at the methods the conservatives are counting on to limit this Con con. From “convention of states” website “The two real controls on the possibility of a runaway Convention are: 1. The States adopt the subject matter of the Convention in advance, and it is binding. 2. Thirty-eight states must approve the proposed amendments coming from the Convention.” So the fate of the Constitution rests upon the delegates to a Con Con staying faithful, and resisting the calls for both socialism, and fascism that call out (and pay) day and night in politics. If this wasn’t enough, each state gets to appoint 1 and only 1 delegate (according to the same website.) Look around you and ask yourself if Oregon’s delegate will be from the left or the right? If we propose a repeal of the 17th amendment, who thinks that will be the only subject debated? Another method of limiting the Con Con has been voiced is to pass a law making it a criminal offense to debate anything beyond the proposed amendments, but to what good could the laws of today be against the people who are writing the laws of tomorrow? The delegates could just as easily include immunity for themselves, and their co-conspirators in the new Constitution that they create out of whole cloth. There is no control conceivable that can limit a convention of the states, they are unaccountable, unlimited, and more importantly unlimitable!
Surely the same group expects the convention to be a conservative one. And to show this they explain that 27 of the state legislatures are controlled by Republicans, This is not much solace for those of us who have taken a close look to the “conservatives” that currently control the republican leadership. I can give examples of their lack of conservatism, and more examples of their lack of fidelity to the Constitution, but I am sure any reader of this will have his or her own examples, so I will save space.
Given all of these drawbacks, and the fact acknowledged by all who push for a con con that the federal government just ignores the constitution, why would we risk so much as to call a convention? The proponents of a Con-Con will try to claim that the feds abide by the constitution as reviewed by SCOTUS, but they ignore many examples of even this low bar being ignored. Such examples would include the 2012 NDAA, Undeclared wars, and military operations without congressional approval, the Patriot act,TARP, the continuing bailouts of banks, insurance agencies, unions, automotive companies. Obamacare (even under the arguments that it was a tax and not a fine, it did not originate in the house as would be required for a tax). Just to name a few. Congress, the Senate, The Supreme Court, and the President don’t so much violate as simply ignore the constitution, and they don’t even try to hide it anymore. What makes us think any amendments would be followed (or even if they were, that they would be construed by the feds as the convention intended?)
One last objection, is that and article5 convention takes years to organize, and if the amendments are proposed in advance (assuming such a thing was possible,) the leaders in DC would have all that warning to find creative ways of skirting the language of the amendments. People from Milwaukie Or. may remember the response to the lightrail initiative by the city council. They simply borrowed the money the law would have forbade the day before the election. That is a significant hurdle to clear in even making a Con-Con a worthwhile expenditure of time.
The alternative Nullification/interposition:
Since the founding, states have used the Constitutional method of resisting federal overreach, by simply refusing to allow the laws that violate the Constitution to be enforced (nullification.) The Constitutional basis of Nullification is the tenth amendment (which amends the constitution including the supremacy clause.) The supremacy clause makes all federal laws passed that are “in pursuance of” the constitution the supreme law of the land. For laws that are not “in pursuance” the tenth amendment reserves these law making powers to the states and the people respectively.
This means when the federal government enacts laws that are unconstitutional the states are empowered by the tenth amendment to pass a law (or laws) that declares the laws are null, void, and of no force within the state. These laws can take many forms such as mere refusals of cooperation with the feds (such things would leave the law in force, but refuse assistance of state police, local deputies, jails manpower etc.), or they can be in the form of empowering people to pass gold contracts as California did to nullify the greenback. Or they could be in the form of simply legalizing things that the feds have made illegal (such as medical marijuana.) One more rare, but no less constitutional form would be to enact penalties for any federal or state officer caught trying to enforce the unconstitutional law.
Nullification was first used in 1798 to oppose the alien and sedition acts by Kentucky and Virginia. These 2 states passed resolutions to oppose the acts citing the tenth amendment and coining the term nullification. Through history this was used to resist federal overreach on such issues as the fugitive slave act of 1850, the greenbacks floated by the union during the civil war as America’s first experiment in fiat currency that caused runaway inflation, and almost cost the union the war, opposing conscription by Daniel Webster, and many more.
Recently the states have again picked up this valuable tool. With it they have started protecting 2nd amendment rights, fighting back against the NDAA indefinite detention provisions, fighting against the individual mandates in Obamacare, as well as the whole law, some attempts have even been successful in limiting abortions, even making it murder if performed after detectible heartbeat. On the other side of the aisle, the left has virtually been able to end marijuana prohibition using the same tool.
The biggest upside of the nullification method in this debate has to be the lack of any possibility that the convention which is all powerful will run away, and implement some far left socialist government in the process of attempting to fix America’s serious problems .
In conclusion I need to point out as I started, there are a great many honorable and knowledgeable people who are in favor of a Con-Con, and I do not want to disparage their intents. I wish them much luck, and if they are successful I pray that the enormous pitfalls do not stop them. To the extent that their efforts are towards amendments that actually improves things, I wish them god speed. I will spend my limited time working towards a strategy that I believe holds far greater promise of limiting the federal leviathan in my lifetime. That strategy does not depend upon unaccountable delegates to resist human nature, but rather on simple resistance to undelegated powers by local governments Nullify Now.
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