by Diane Rufino, September 1, 2021
Why do I say that we need to preserve our country? Why does America need saving?
As I made abundantly clear, in my article “A Re-Declaration of Independence,” which I posted on January 23 of this year, [https://forloveofgodandcountry.com/2021/01/23/a-re-declaration-of-independence/ ], the history of the federal government has been a history of repeated abuses and usurpations, all having in direct effect the establishment of an absolute tyranny over the fifty states. Please read the article. It will certainly wake you up, if you aren’t already woken up. At stake is the future of our country.
In short, what was once “a government of the people, by the people, and for the people” has become anything but that. The government, which, according to the Declaration of Independence, is merely but a temporary institution, existing only so long as it serves its primary purposes, which are to secure the individual’s inalienable and God-given rights and to provide safety and security to the States and to its citizens. Once that government becomes destructive of those ends (in other words, fails to serve those purposes effectively), the states have the right to withdraw from their allegiance to it and the people have the natural right to “alter or abolish it.” Does anyone think that the current federal government would ever allow any state to leave the union? Does anyone think that the current federal government would ever allow any group of citizens, let alone an overwhelming majority to “alter or abolish it”? The government spies on anyone it considers a troublemaker. One only needs to read the guidance that Obama’s Homeland Secretary, Janet Napolitano, put out just 2 ½ months after he took office, on April 7, 2009, in which his administration targeted conservative individuals and groups (those who “cling to their guns and religion”) as being most likely to become “homegrown terrorists.” The guidance was titled: “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment” [https://fas.org/irp/eprint/rightwing.pdf ] to know that will never be allowed to happen. The government is in the business, first and foremost, of preserving itself and its power…. not securing the rights of the People.
If we are to preserve the country and the government system that our Founding Fathers gifted us, and if we are to preserve and secure the US Constitution, as written and intended, we need to look into some very serious solutions. I have come up with four that I think are worthwhile:
1. Nullification & Interposition
2. Exercise of State Sovereignty per the 10th Amendment – State Escrow Accounts
3. American Citizens Acting Together to Withhold Federal Income Taxes (What are we getting in return for the taxes the government demands, other than to support others who don’t want to work?)
4. An Article V Convention of States – to break up the country into two new Unions (in order to end the incessant bickering and hatred between the two radically different, opposed political ideologies).
But first, I think it wise to address the notion that Abraham Lincoln, with his Civil War, has forever changed the country and forever changed the government in Washington DC.
A BRIEF HISTORY: The Civil War —
As a eulogy, President Abraham Lincoln delivered these words on November 19, 1863 on the hallowed grounds of Gettysburg, PA: “Four score and seven years ago, our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal…….. that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”
That was 148 years ago. The portion of the speech (The Gettysburg Address) that I’ve noted is probably the only truth in the memorial message that most Americans consider as one of the most important speeches of all time. To be sure, to be accurate, the speech was indeed strong on style but it was weak in substance.
In 1787, indeed, our forefathers conceived of a land of Liberty, inspired its people to declare their independence from Great Britain, and drafted the most critical and revolutionary documents on earth to secure freedom and liberty for its people. And yes, indeed, they designed a government system “of the people, by the people, for the people” which was explained in the Declaration of Independence as the natural law form of government.
American journalist H.L. Menchen (1880-1956) offered this excellent critique of the Gettysburg Address: The Gettysburg Address is poetry, not sense. It’s doctrine is that Lincolns’ soldiers sacrificed their lives for the course of self-determination; “that government of the people, by the people, for the people” should not perish from the earth. It is difficult to imagine anything more untrue. Lincoln’s soldiers actually fought against self-determination. It was the Confederates who fought for the right of the people to govern themselves Many Southerners know this to be true.
Before getting into the meat and substance of this article, which is how to reign in the unconstitutional government that now sits in Washington DC and how to reclaim our country, let’s first address the misconception that the so-called Civil War changed forever the American concept of “Union” and the notion of “limited government.”
THE GREAT WAR THAT “FOREVER CHANGED THIS COUNTRY” —
To serve his desire for power and that of the newly-created Republican Party, Abraham Lincoln aligned himself with radical elements in the North (and the western states) and especially with the “money men” (northern businessmen) to distort the meaning and intent of both the Declaration of Independence and the US Constitution and to stir discord throughout the country. He divided and conquered. With respect to those states (Delaware, Maryland, Kentucky, Missouri),, the border states, that were still on the fence regarding secession, Lincoln sent in the military to prevent them from leaving the Union. To those states which had already left, he invaded them, destroyed their land, destroyed their economy, destroyed their way of live, and conquered them. He not only divided their loyalties but he tried to divide the races as well, which the Reconstruction-era Radical Republicans of the North did so effectively after Lincoln was assassinated. He eagerly and dishonestly started America’s bloodiest war, waged it in violation of the established laws of war, killed at least 700,000 of the people he was tasked to protect, and killed the constitutional republic of our Founders. A fourth to a third of Southern soldiers were counted dead, with the Union Army suffering similarly (although many of its soldiers were paid European mercenaries), and not counting the vast amount of citizens who died later. Civilian deaths were pandemic and impossible to classify, and perhaps up to one fourth of colored people, slave and free, died as a result of the War. By using the Emancipation Proclamation (issued in Jan. 1863 purely for political expedience, in order to prevent European powers from entering the War on the side of the South), he thought he could incite the slave population to rebel against their slave masters and their families and demoralize and dissuade Confederate soldiers from fighting. Again, the seeds of Lincoln’s use of slaves as pawns to gain the upper hand in the War (which up until that point they were losing) has had long-lasting, detrimental effects on our country. With Reconstruction as a means of retribution against the South, the handling and managing of the “defeated Confederate states” served to usher in an era of segregation and discrimination and a legacy of racism that continues to divide our country today. As George Mason said during the Philadelphia Convention of 1787: “Every master of slaves is born a petty tyrant. They bring the judgment of heaven upon a county. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes nation sins, by national calamities.” How prophetic !
If the War was fought to “Preserve the Union” or “Save the Union,” as Lincoln explained, why was almost all the fighting done in the South. Why was all the physical, geographical damage confined to the South? The Southern states just wanted a simple and peaceful separation from the Northern states, just as the 13 colonies wanted such from Great Britain (hence the reason for the Declaration of Independence). In fact, they followed all the exact same steps that the colonies followed in the years 1776 – 1787. The Southern states believed the federal government was supposed to be a “common government,” to serve all of the states equally, not one region over another. But yet, the government was not “common”; rather, it had become a government to serve Northern moneymen, northern businesses, and northern interests, at the expense of the South. Hence, Congress continued to impose punishing tariffs on the South, using a portion to fund the government and the rest to funnel to the North, for Northern interests and projects. And so, as the Declaration articulates: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That 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…,” the South separated from the Union, abolished their allegiance to the Northern states and to the federal government, and instituted a new government.
From the South’s point of view, leaving the Union was simple. The blueprint has been laid out when the 13 original states decided that “the history of the present King of Great Britain was a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over the States” and therefore, according to the “laws of Nature and of nature’s God,” they were entitled and within their sovereign right to leave the Union with the North, declare their independence, and establish a new country.
There were, however, very basic and foundational problems with the effort to “preserve the Union.” But Abraham Lincoln didn’t care. For his own political benefit, he changed the national dialogue: Instead of the Constitution creating “a more perfect union” (as its very words explain), according to Lincoln, it created “a perpetual union” and as such no state had the right to secede and leave it. That was his rationale for waging war on the Confederate States.
Before leaving his seat in the US Senate, Jefferson Davis, who would soon become the first president of the Confederate States of America, made this plea: “Let us go in peace.”
The North fought because their president – a single man – started a war. He started a war unconstitutionally. Lincoln had promised to enforce a high tariff during his campaign of 1860. On March 2, 1861, Congress passed and then-president James Buchanan signed into law the Morrill tariff, the highest ever tariff – 50% of some articles and 60% on other ones. On March 11, the Confederate States of America enacted a 5% tariff. The following day, the “money party” (ie, the Republican Party – the party of Northern merchants, manufacturers, and bankers) demanded war. To note, these money men originally were happy to see the southern states go; “let them go,” they said. But once they realized the money situation, they quickly changed their mind and pushed for war. “Bring them back!” It was bad enough that an independent South would deprive them of the protective tariff revenue and their own tax-free existence, but far worse, the tariff differential would move Northern trade to low-duty Southern ports. Southern independence could not be allowed !! The only way to prevent losing Southern money was by war. The money men applied pressure to the Republican Party, and therefore to Lincoln. The Republican Party (ie, the Northern mercantile party) used its majority control in Congress to enact measures that subsidized Northern commerce and infrastructure at the expense of the Southern farmer. The tariff, the national bank, and the so-called “internal improvements” (the hallmark issue of the Whig Party, which resurrected itself with the newly-established Republican Party in the 1850’s) that so injured the South, were examples of party greed, ambition, and factional aggression.
James T. Pace writes in his book ‘SOUTHERN INDEPENDENCE: WHY WAR?”:
“Over and over again, Abraham Lincoln declared that he went to war for one reason and one reason only – to ‘preserve the Union.’ The claim is impossible, absurd. Impossible because nothing is preserved by destroying it. Absurd and a lie because he pursued office by agitating dis-union; when elected, he blocked all negotiation (repeatedly refused to acknowledge and speak with delegations from the newly-independence South Carolina), and as soon as he was sworn in, he went immediately to work to design a strategy and to direct a conspiracy to make war.
Lincoln’s invasion of Charleston Harbor (deceptively explained as the need to reinforce the men there), calling up an army, demanding the remaining southern states to provide troops to wage violence on their neighbors, declaring war upon the seceded states – caused six more states to secede. How did that ‘save the Union’? If he had not made war, those states would have remained in the union. They refused to join his unconstitutional war because the Constitution, as well as the Declaration of Independence, still mattered to them. Lincoln sent in troops, established military control of border state governments (including Delaware, Maryland, Kentucky, and Missouri), arrested state officials, scattering them in unknown prisons. He ordered the arrest of Maryland’s legislators, and when the Chief Justice of the US Supreme Court protested, Lincoln ordered his arrest. Kentucky and Missouri did eventually vote in convention to secede, but they could not exercise that sovereign decision because of Lincoln’s army occupation.”
Abolitionist Wendell Phillips, a resident of Massachusetts wrote in April 1861: “Abraham Lincoln has no right to a soldier in Fort Sumter. A series of states think they should have a separate government. They have a right to decide that question without appealing to you and me. Standing with the principles of 1776 behind us, who can deny that right?” The “Principles of 1776” that he was referring to include the Lee Resolution and the Declaration of Independence. The plan for our American independence was initiated on June 7, 1776, when Richard Henry Lee of Virginia introduced a resolution in the Second Continental Congress proposing independence for the American colonies.
The Lee Resolution contained three parts: an official declaration of independence, a call to form foreign alliances, and “a plan for confederation.” On June 11, the Congress appointed three concurrent committees to address each part. The committee we are most familiar with was the one tasked for drafting the Declaration of Independence, with Thomas Jefferson appointed to do the actual drafting. Our early history remembers that the
Declaration of Independence was itself a secessionist document. It could have easily been called a Declaration of Secession and Independence.”
Charles Pace continues in his book: “How did this war save the Union? How can Lincoln claim to be defending the Union when the South was merely pulling away? The South was running away and the North was invading and bringing war. The Southern people were never a threat to the peace and security of the North. The Southern economy was never a problem for the North. Who was Lincoln defending? What was he defending? Secession was a right specified and expressly reserved (or inferred) by all the ratifying parties (the States) to the Constitution, denied by none, claimed several times by New England (with support given them by the South), and even taught at West Point.”
Love of money was the root of the evil that injured the nation. There was no valid reason for war. And it certainly wasn’t fought over slavery. “The Union must be preserved” was merely a righteous slogan for what was really on Lincoln’s mind, which was that “the Tariff must be preserved.”
Lincoln didn’t save the Union. He killed it. He forced on the American people the most evil enemy of liberty – an aggressive, unrestrained, and consolidated government.
As author Mr. Pace wrote: “From the ashes of death a new life always arises, and so it did in America. The old country, governed by an institution of limited power, was done. Rising in its place was not a phoenix of hope, of re-uniting brothers once again in love and harmony, but a bird of prey.” For political power, for a resumption of the money train from the South (tariff revenues) to the northern money men, the victors, the Northern states, the Republican Party, destroyed their own country.
Robert E. Lee, the gentlemanly general, gave us this dire warning: “Everyone should do all in his power to collect and disseminate the truth, in the hope that truth may find a place in history and descent to posterity. History is not related to campaigns and battles and generals, but those events which display principles” (and character).
And Jefferson Davis, president of the Confederate States of America, told his troops in January 1865: “There is another reason to persevere. If we are defeated, to our punishments will be added the injury of truth. We shall be forced to drain the last bitter dregs from our cup of humiliation and read the story of our struggle written by New England historians.” (In other words, they can’t let the North win; the victors always have the benefit of ‘telling the story’)
Charles Pace writes in his book “Southern Independence”: Lincoln had changed forever the nature of the American Union.” I don’t understand why he has concluded that Lincoln changed it forever. One man alone, taking government in his own hands, acting unconstitutionally and weaponizing it for his own political purposes and in doing so, destroying the southern states, destroying their economy, and killing almost 700,000 of his people does not – CANNOT – earn him our praise. We are still a nation of freedom-loving individuals, the majority always being thankful to our Founding Fathers for the country they gave us and believing we still have that country. It doesn’t mean we have to accept Lincoln’s new vision of “union” or of government (a consolidated government). Acting unconstitutionally doesn’t make Abraham Lincoln a great president. It makes him a tyrant, It makes him a traitor. And he should have been treated as such by Congress, instead of its members supporting him in his political war and overlooking all his many unconstitutional acts. Likewise, he should be treated as such by history. Instead, he is given perhaps the largest and most impressive of national monuments on the national mall in Washington DC.
FEDERAL TYRANNY: The Reason We Need Solutions
From the years 1765 – 1776, Great Britain not only enacted many tax measures on the American colonies (such as the Stamp Act and the Tea Act – “No taxation Without Representation!”), but also took punitive measures against them (such as the Intolerable Acts, the Quartering Act, the disbanding of colonial legislatures, the confiscation of firearms and colonial stockpiles of ammunition, the imposition of martial law, etc). The colonies were tired of petitioning and appealing to the King, appealing to Parliament, asserting their rights as British subjects, and in general, being treated like insolent children. And so, what did they do about it? They made the decision to separate from Britain (to secede from Britain) and to declare their independence.
In the Declaration of Independence, written in a style that copies the protest documents throughout England’s history, Jefferson used these eloquent opening words: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
He then declared the fundamental principles on which the 13 states (the colonies had organized into states at that point) would base their independence and base their sovereignty. It was called “individual sovereignty” and we all know how it was defined in paragraph two of the Declaration. (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness; That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That 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..”)
Jefferson then explained: “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world…..” With those words, he listed 27 grievances against King George III. Those grievances, the original states believed, were serious enough to warrant secession.
And that brings me to the history of the united States. Has history repeated itself?
I go back to the national tragedy that was the Civil War and the duplicitous reasons President Lincoln gave for refusing to let the southern states go in peace. Its consequences were so transformative that I have a hard time letting the event (and the events that followed) go.
It is said that a large government, a consolidated government (like the one Lincoln ushered in) always breaks the law. It always assumes powers that it believes it must have, taking them away from their original depositories, which are the States and the People. And I have to agree. History has repeated itself. The history of the federal government, all three branches, has been a history of repeated abuses and usurpations, all having in direct effect the establishment of an absolute tyranny over the 50 States and over the People.
Thomas Jefferson wrote: “Experience hath shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
The question is this: With Lincoln’s unconstitutional invasion of the Southern states, newly and peacefully organized into the Confederate nation, in order to beat them and subjugate them back into the Union (thus violating the Tenth Amendment, destroying the concept of “States’ Rights), and wholly ignoring the core principles of the Declaration of Independence – the right of secession and the right to form a “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”) and with the new, all-powerful federal government that Lincoln waged war for, who will the watchmen? Who CAN be the watchmen? Who will govern the governors?
Tyranny is an arbitrary or unrestrained exercise of power; a despotic abuse of authority. Tyranny is when a government or its ruler exercises power unconstitutionally. Government, especially the government that Lincoln fought his war to create, has the means to take such power. He alone made that scenario perfectly clear. It has the purse and the pen, and it also has the sword; it has the money to buy “friends” and supporters, the pen to write unconstitutional laws and to create unconstitutional agencies, and the sword to force and to punish those who pose opposition. Power can only be controlled, or checked, by an opposing power – one of equal standing. Every government must be designed and constructed so that power is limited by an opposing power, or it will ALWAYS end in tyranny. Our Founding Fathers knew this; they understood this concept. And that’s why our government system is based on dual sovereignty – the federal government versus the States. That is why federalism (the division of power between two equal sovereigns) is a unique American feature. That feature is so important that the States demanded that it be restated and re-emphasized in the Tenth Amendment.
The States were tasked, and I argue must continue to be tasked, with the most important of government functions – to check the power of the federal government. If they fail to do this, as they have since the earlier years, the antebellum years, then tyranny will be the result. And tyranny has been the result. [Refer to my long article “A RE-DECLARATION OF INDEPENDENCE,” posted on January 23, 2021 – https://forloveofgodandcountry.com/2021/01/23/a-re-declaration-of-independence/ ]
As the topic of this article is “Solutions for America: How to Save the Land of Liberty Our Founding Fathers Gave Us,” let me finally get to its substance. I have four solutions, as I mentioned at the very beginning of this article, to help save our country and to preserve our most precious founding documents, the Declaration of Independence and our US Constitution (original meaning and intent). Three solutions involve the States, which are tasked to be the most powerful and important of “checks and balances” on the federal government, and one solution involves the will and the concerted action of the People.
SOLUTION 1 – NULLIFICATION & INTERPOSITION
Nullification is, as Thomas Jefferson wrote and explained, the “rightful remedy” to address unconstitutional acts by the federal government. The States, under the concept of dual sovereignty, as defined by “federalism,” and as emphasized in our US Constitution by the Tenth Amendment, are the parties who have the sovereign power and right to serve as the ultimate check on the actions of the federal government. No other constituents have such power and ability to do so, unless the American people, en masse, act in concert or otherwise revolt.
But using the term “federalism” and citing the Tenth Amendment… these are merely words; they are merely context. What gives life to our Founding Father’s government design (its designed of limited government and checks and balances) is ACTION. Inherent in federalism and in the Tenth Amendment is the understanding that States, in their sovereign capacity, have the right and the responsibility to stand up against the government in DC should it abuse its powers and should it act unconstitutionally. That action is known as “nullification” and “interposition.”
Nullification means “null and void,” and essentially what the term means is that when the government acts outside the Constitution, in abuse or disregard of the powers expressly delegated to it (by the States and the People), it acts without authority, without the legal right to do so, and therefore such actions are “null and void” and “without any power to be enforced.” The question is, who has the standing and the authority to make such a call? The States do. That is precisely their role in our system of federalism and in our system of checks and balances. The government itself would never admit they’ve violated the Constitution, and certainly, as we all know, we can’t count on the federal courts or the US Supreme Court to call out their violations.
Nullification is as much a Jeffersonian doctrine as the doctrine that says that all individuals are endowed the alienable rights of Life, Liberty, and the Pursuit of Happiness, and that governments, instituted among Men and deriving their just powers from the consent of the governed, are responsible, above all else, to protect those
rights. Thomas Jefferson, who not only authored of perhaps our most important morally-defining founding document, the Declaration of Independence, but he also authored the Northwest Ordinance of 1787 and the Statute of Virginia for Religious Freedom (1786), and he strongly advised James Madison to introduce the Bill of Rights as the first set of amendments to the newly-adopted US Constitution.
I’ll explain how Jefferson introduced the term “nullification” into our lexicon below, in his Kentucky Resolves of 1799.
“Interposition” is the other tool inherent in each State’s arsenal of sovereign responsibilities. It goes hand-in-hand with nullification. It is the more effective tool in restraining the federal government. “Interposition” means “to intervene between two parties; to insert between one thing and another” (Webster’s dictionary). Once a State identifies an unconstitutional act by the federal government and declares such to its citizens, its duty does not end there. Oh no. It must address the second part of nullification, which is to prevent the enforcement of such unconstitutional action (whether it be an act of Congress, and executive order, the creation of an unconstitutional department, such as the Dept. of Education, the EPA, etc etc, or even an unconstitutional or arbitrary ruling by the federal courts or Supreme Court (we call this “judicial activism,” which explains such cases as Dred Scott v. Sandford, the Obamacare ruling, the Obergefell ruling regarding gay marriage, Roe v. Wade, Swann v. Charlotte-Mecklenburg Board of Education, Wickard v. Filburn, and many more). Interposition was articulated by James Madison, “the father of the Constitution,” in his Virginia Resolves of 1798 and takes such forms as preventing the arrest of anyone who violates an unconstitutional act, arresting any federal officer who enters the state to enforce such law, preventing the state courts from adjudicating said violation, etc. Nullification and Interposition essentially mean “notice and action,” which is the only course of action that ensures that a free people are not subject to the abuse and over-reach of government.
As an aside, many people believe that the so-called Civil War put an end to the sovereign right of secession and the Jim Crow era put an end to the sovereign right of nullification. As a constitutionalist, any ruling by any federal court that invalidated nullification and interposition is, in and of itself, unconstitutional and therefore to be nullified and ignored and rendered unenforceable by interposition. The federal courts are only limited to the “interpretation” of the Constitution. Nullification and interposition, as explained, are inherent sovereign rights, as articulated in the Declaration of Independence. They supersede the Constitution; if nothing else, they are inherent in the Tenth Amendment.
Here is a bit of history to explain how and why the doctrine of Nullification meaningfully entered into our American experience:
After the Constitution was ratified and our first US Congress was established, Thomas Jefferson wondered how the country would respond in the case its government passed a law that was clearly unconstitutional. As Secretary of State under our first president, George Washington, he already witnessed the wheels of government try to enlarge provisions in the Constitution to give the administration unchecked powers to tax and spend. Washington would establish the first National Bank. Jefferson knew the trend would continue. And it did. Our second president, John Adams, signed the Alien & Sedition Acts into law, which were laws addressing the Quasi War (undeclared) with France at the time. The French Revolution just killed off the monarch and his family and tensions flared up between the new French republic and its old rival, England. There was an influx of French immigrants and Americans were split in their support of the old French system or the new republic. Although the Alien Acts (3 of them) were offensive, it was the Sedition Act that was most glaringly so. The Sedition Act made it a crime (fines and jail sentences) should any person “write, print, utter, or publish, OR cause or procure to be written, printed, uttered, or published, OR assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States….” The Constitutional red flags went up at once. The immediate violations jumped out to men like Jefferson and Madison, and many others. While the Alien Acts violated the 10th Amendment and the Due Process clause of the 5th Amendment, the Sedition Act was a blatant violation of the 1st Amendment and its guarantee of Free Speech (most importantly, political speech!) John Adams, a Federalist, saw nothing wrong with any of the laws. Neither did his Federalist co-members of government or his Federalist judges. Thomas Jefferson, the Vice President at the time (since he got the second highest votes in the election of 1796) wasn’t a Federalist. He was a Republican-Democrat (a party he founded). [Notice that the Sedition Act protected everyone from slander EXCEPT the VP !!]. The Checks and Balances didn’t work. Political power was more important than the rights the government was created to protect!
And so, convictions quickly followed. Journalists, publishers, and even congressmen were fined and jailed. Not a single person targeted was a Federalist. The only ones targeted were Republicans. The men who wrote our founding documents – Jefferson and Madison – began a series of correspondences to discuss what should be done to prevent such unconstitutional laws from being enforced on people who had a rightful expectation of exercising the liberties promised in the Declaration and in the Bill of Rights. (And of course they had to be very careful lest they be convicted under the law!) Jefferson saw that there are 3 possible remedies when a government tries to enforce unconstitutional laws.. (1) Seek an opinion from the Judiciary; (2) Secession; or (3) Nullification (including Interposition). Jefferson advised against the first two remedies. He said the first was unpredictable and unreliable. He believed justices were men motivated by the same passions, political motivations, thirst for power and legacy, and personal opinions as politicians and could not be counted on to be impartial interpreters of the Constitution. He also realized that the judiciary was only one branch of government (the least powerful at the time), and although it would render an opinion, Congress and the President were not required to abide by its ruling. Furthermore, the courts were all Federalists at the time and were part of the problem!. Jefferson said secession was certainly a legitimate option (after all, the Declaration itself was a secessionist document), but said it was far too extreme and every effort should be made to keep the union together in a workable fashion. The third option, he said, was “the rightful remedy.” Nullification, he said, was the remedy inherent in the states’ ratification of the Constitution, inherent in the doctrine of federalism, a remedy grounded in law itself, and the remedy that would allow hot tempers to cool and would prevent states from threatening to leave the Union. Madison agreed.
Nullification is the doctrine which states that any law that is made without proper legal authority is immediately null and void and therefore unenforceable. Laws have to be enforced by officials – federal and state. When the government passes a law pursuant to its powers, it is supreme and binding. Every level of enforcement recognizes the law. States are obligated to uphold it and help enforce it. An example are the federal immigration laws. When the government passes a law that it has no authority to make – such as the Sedition Act, which offends the 1st Amendment which is a strict prohibition on the government with respect to individual speech (political speech) – then in terms of legality, the law is null and void. For a government to try to enforce it would be an act of tyranny. (Tyranny is defined as a government that abuses its powers and enforces unpopular laws). Since the law is null and void, no enforcement agency should force the law on the people. Government will never admit its law is unconstitutional or unenforceable and so it is up to the states and the communities (and their enforcement agencies) to prevent such law from being enforced. The states are the rightful parties to stand up for the people against a tyrannical act of government. When the government assumes power to legislate that it was not granted in the Constitution, it usurps (or steals it) from its rightful depository, which are either the States or the People (see the 10th and the 9th Amendments). Every party must always jealously guard its sphere of government; it’s bundle of rights. States have their powers of government and people have their rights of self-government (ie, control over their own lives, thoughts, actions, and property). Again, if we look at the Sedition Act, the government under John Adams passed the law by attempting to steal the rights of free speech from the People.
Well, immediately, Jefferson and Madison got out their pens and drafted the Kentucky Resolutions of 1798 and of 1799 (Jefferson, for the Kentucky state legislature) and the Virginia Resolutions of 1798 (Madison, for the Virginia state legislature). Both states passed them, declaring that the Alien and Sedition Acts were unconstitutional and therefore unenforceable in their states. The Virginia Resolutions were especially forceful because they announced that the state of Virginia would take every step possible to prevent the enforcement of the laws on its people.
In the Kentucky Resolutions of 1798, Jefferson wrote:
1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
In the Kentucky Resolutions of 1799, he wrote:
RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy……
In the Virginia Resolutions of 1798, James Madison wrote:
RESOLVED……. That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
The government hates the doctrine of Nullification and has used every opportunity to discredit it. And it makes sense. And doctrine that gives power to the States is offensive to the federal government. It makes them harder to control. We all know how angry the government gets when any state criticizes or attempts to frustrate the government’s laws, policies, and agenda. Nullification, like secession, is a fundamental sovereign power reserved to each state. Since the states did not form the Union by unlimited submission to the common government they created, certain powers remain vested in them. Despite what Lincoln claimed, the states did NOT create, or attempt to create, or even envision creating a “perpetual” Union by ratifying the Constitution. Those words are merely wishful thinking by a despot and traitor.
SOLUTION 2 – EXERCISE OF STATE SOVEREIGNTY PER THE TENTH AMENDMENT (Specifically, the Creation of State Escrow Accounts)
One of the hallmarks of a tyrannical government is a bloated budget. We see this to be true of our current federal government; federal spending is insanely out-of-control. We complain about it, politicians make it one of their campaign issues, but no one seems to want to focus on a meaningful remedy. Rather, most spend their time blaming one political party or the other, demanding a balanced budget amendment, or calling for an Article V Convention to amend the Constitution to include a balanced budget amendment. The latter two are totally unnecessary if one is willing to simply acknowledge that the Constitution itself, by its very word and spirit, requires limited spending. Any amendment will merely affirm the government’s incorrect assumption that it has broad and unlimited taxing and spending powers. And once that amendment is added, our government will no longer be a limited one. The Constitution will be one that is incapable of reigning in the powers that be.
Any real remedy to the out-of-control spending that plagues our nation and threatens to burden our children and grandchildren must address the reason for that spending. The reason we have this problem is that the federal government believes the “Welfare Clause” is a separate grant of power (not true) and had been enlarging its sphere of control through the creation of endless departments and agencies (and their associated bureaucracies).
For example, there are the more than 1,100 “grants-in-aid” programs (“conditioned” federal grants, usually for a specific purpose) that spend one-sixth of the federal budget on matters that are the exclusive business of state and local governments. Social Security and Medicare spending have increased greatly, owing to advancements in the science and healthcare field allowing Americans to live longer, and entitlement programs have been enlarged, owing to the unrelenting waves of immigrants and refugees flowing into our country and to the great many Americans who are having children outside wedlock or otherwise simply don’t want to work
According to a 2014 article in the Wall Street Journal entitled “How Congress Bribes States to Give Up Power,” author James L. Buckley wrote:
“Those programs, which provide funding for Medicaid as well as everything from road and bridge construction to rural housing, job training and fighting childhood obesity—now touch virtually every activity in which state and local governments are engaged. Their direct cost has grown, according to the federal budget, to an estimated $640.8 billion in 2015 from $24.1 billion in 1970.
Their indirect costs, however, go far beyond those numbers both in terms of dollars wasted and the profound distortions they have brought about in how we govern ourselves. Because the grants come with detailed federal directives, they deprive state and local officials of the flexibility to meet their own responsibilities in the most effective ways, and undermine their citizens’ ability to ensure that their taxes will be used to meet their priorities rather than those of distant federal regulators. The irony is that the money the states and local governments receive from Washington is derived either from federal taxes paid by residents of the states or from the sale of bonds that their children will have to redeem.
Congress finds the authority to enact those programs in the Supreme Court’s interpretation of the Constitution’s general-welfare clause in Steward Machine Co. v. Davis (1937). More recently, in the court’s 2012 NFIB v. Sebelius decision upholding the Affordable Care Act’s individual mandate, Chief Justice John Roberts wrote that Congress may use federal funds to “induce the States to adopt policies that the Federal Government itself could not impose,” so long as participation by the states is voluntary. To put it another way, Congress is licensed to dabble in areas in which it is forbidden to act, which it does by bribing the states to adopt Congress’s approaches to problems that are the states’ exclusive responsibility.
It is impossible, in this article, to detail all the costs imposed by those programs, but here are some of the most egregious ones: They add layers of federal and state administrative expenses to the cost of the subsidized projects; distort state priorities by offering lucrative grants for purposes of often trivial importance; and undermine accountability because state officials bound by federal regulations can’t be held responsible for the costs and failures of the projects they administer.
Finally, and of prime importance, those programs have subverted the Constitution’s federalism, its division of federal and state responsibilities, that was intended to prevent a concentration of power in a central government that could threaten individual liberties.
The states are free to decline to participate in the programs, but that has proved very hard to do. Money from Washington is still regarded as “free,” and state officials are delighted to accept grants, strings and all, rather than raise the extra money that would be required to pay the full cost of the projects they freely undertake with federal subsidies. What makes declining grants particularly difficult is the fact that if a state does not participate in a program, its share of the money—derived in whole or part from its own taxpayers—will go elsewhere.”
[Source: http://www.wsj.com/articles/james-l-buckley-how-congress-bribes-states-to-give-up-power-1419541292. Mr. Buckley is a retired federal appellate judge and a former U.S. senator.]
As the wise man, Thomas Jefferson, once explained: “The policy of the American government is to leave its citizens free, neither restraining them nor aiding them in their pursuits.
I have proposed a remedy. Borrowing from Jefferson, I like to call it the “Rightful Remedy” for curbing federal spending. The remedy relies on the sovereignty of the states, on the federal nature of our government system, and on the Tenth Amendment.
In short, the remedy summons the states to step up to their unique and historical responsibility to act as the last safeguard of their citizen’s individual’s liberty. The remedy would have each state, through their Treasury Department, establish an “Escrow Account” or “Escrow Fund” into which it would deposit its citizens’ federal income tax withholdings or funds. To be clear, citizens of each state will direct their federal income tax withholdings to go to the state Escrow Account rather than to the IRS. Similarly, citizens who don’t receive a salary but have other assets that the government taxes will send their federal income tax check to the same state Escrow Account instead of to the IRS. The funds will remain in the Account while the State Treasurer (either as a solo effort or in collaboration with other state treasurers) evaluates the federal budget for constitutionality. The Treasurer will review each item of spending and evaluate it according to the original meaning and intent of the Constitution (as it was debated, understood, and adopted by the People of each state, acting in convention in the years 1787-1790 to establish the Union of states) to see if it consistent or inconsistent with Article I, Section 8. After reviewing each item, the NC Department of State Treasurer will determine the percentage of the federal budget that is constitutional (as opposed to that portion that is unconstitutional and should rightfully be reserved to the states). The State Treasurer will then re-calculate each individual’s federal income tax burden according to its determination of constitutionality.
The State Treasurer will then forward to the IRS that portion of each individual’s tax burden that corresponds to the constitutional purposes of the budget and the remainder will remain in the State Escrow Account. The state can then determine what it should do with the amount remaining in the Account. It may choose to keep it there (“just in case”). But preferably, it will offer the taxpayer a choice: to have the remaining amount returned to him or her, or to allow the state to keep it to help fund state projects that normally would have required federal funding, including “conditioned” grants. The latter option will give a huge boost to States’ Rights, freeing them up from their dependence on the federal government.
The State could also have its citizens direct their FICA withholdings to a state Escrow Account (a different one, perhaps – a state “Social Security Escrow Account”) rather than to the IRS in order to protect their interests when they enter their retirement years. The State Treasurer could research the best investment scheme to invest the funds for the citizen so that when he or she reaches the age of retirement, the retirement funds that he or she receives will be secure and plentiful.
This remedy, in general, achieves several goals:
- It reminds Congress that not all of its spending is constitutional.
- It divests Congress of the broad interpretation of its taxing (and spending) powers that the Supreme Court has generously provided over the many years.
- It puts an important check on the scope of the federal government by the sovereign that was always intended to provide that check – the states (under the Tenth Amendment and under Compact and Agency theories).
- It helps States break free of their dependency on the federal government and hence resume their sovereign responsibilities and sovereign status.
- It forces government to divest itself of the functions and agencies that it can no longer ‘pay for.’
- It forces government to “exist within its means” (just as ordinary people are required to do).
- It provides an element of transparency and accountability in government.
- It reduces the individual federal income tax burden and allows citizens to keep more of their own money, or at least to have it spent in their “own back yard” (in their own state, to accomplish goals that benefit them more directly).
- The reduced federal income tax burden allows the states to tax according to their own schemes in order to fund directly their own projects, as they themselves see fit for their people.
- The scheme introduces a degree of innovation and creativity on the part of the state (“50 independent laboratories of innovation”) which will serve to make our government system most efficient.
- If the federal government becomes too abusive and continues to usurp reserved state powers or if it threatens individual liberty, it is much easier to shut it down and effect the remedies provided to the People in the Declaration of Independence (“to alter or abolish” government) by withholding tax funds completely.
If our country doesn’t get its finances in order, and if we, as a People, don’t get our government back to work for us instead of for itself and its longevity and get it back within reasonable boundaries in our lives, in our livelihoods, and on our property (all forms), then we will lose everything good about the experiment that was started by those who reached our shores to escape various types of persecution from their own governments and who instigated for independence.
Thomas Jefferson was optimistic about the country he so intimately helped to form: ““I predict future happiness for Americans, if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.”
Forcing the federal government to tax and spend for constitutional objects only will force it to reduce in size and in spending, and to concentrated on those objects it is constitutionally tasked with. Henry David Thoreau said it best: “Government is best which governs least.”
SOLUTION 3 – AMERICAN CITIZENS ACTING TOGETHER TO WITHHOLD FEDERAL INCOME TAXES
Money talks…..
This is a simple solution but would take a great effort to get a majority of citizens on board to act.
Ronald Reagan once said: “The American people are not undertaxed, the government in Washington is overfed.” I interpret this statement as meaning that the federal government is doing a lot of unconstitutional taxing and spending.
The government cannot financially support itself, fund its programs, fund our armed forces and security services, take care of citizens (healthcare, medicare, Medicaid, and other entitlement programs; including to immigrants, including illegals and refugees), support international organizations such as NATO, support other countries, etc without the tax dollars that it demands from working Americans and others who have taxable assets. If Americans simply make a concerted decision NOT to pay their federal income tax by April 15, then government will shut down. No government; no problems !! The States can easily join together and pick up the functions that government was carrying out. No government, no tyranny.
If the People choose to use this solution, the must first plan ahead:
First, each person must go to their human resources department and decline to have their federal income tax, and other mandatory taxes, automatically taken out of their paychecks. (Before doing so, be sure to record the withholding taxes taken out of the paycheck)
Second, when depositing one’s paycheck, take the amount corresponding to the withholding taxes and put it in a separate account or one’s savings account.
Third, when April 15 comes around, Americans send nothing to the IRS and the government will be forced to go very lean or shut down altogether. (A dangerous notion, perhaps, but an honest and constitutional government is better any day of the week than a tyrannical one).
Fourth, we condition our compliance with the federal taxation laws only when taxes are lowered (to meet only constitutional objects of government) and when the government agrees to divest itself of unauthorized authority (when it gets rid of the US Dept. of Education
Ideally, this solution, this plan, must reach all taxpayers. But how might this be accomplished and organized??
I look back to 2009, when a simple rant by CNBC commentator Rick Santelli from the floor of the Chicago Mercantile Exchange was the single spark that ignited the entire Tea Party movement. Tea Party groups sprang up almost overnight in towns and cities all over the country.
If people are given hope that they can make change and show government who’s in control, it might just work, If We the People hold back our federal income taxes, we show how much power we can actually have. We take back the sovereign power inherent in our humanity and which is clearly articulated in the Declaration of Independence.
It’s time for us to be the people that our Founding Fathers expect us to be. They gave us an incredible country and a brilliant government design but they entrusted us, the people, to guard it and protect it, so that succeeding generations will always enjoy the blessings of liberty.
Jefferson offered some wise words: “When the government fears the people, there is liberty. When the people fear the government, there is tyranny.’
SOLUTION 4 – AN ARTICLE V CONVENTION OF STATES (to Break Up the Country into Two New Unions (in order to end the incessant bickering and hatred between the two radically different, opposing political ideologies)
Above I talked about Jefferson’s advice on how to address palpable abuses (ie, unconstitutional actions) by the federal government. Jefferson offered three possible solutions: (1) Challenge the action in federal court; (2) Secession; or (3) Nullification (with Interposition). The first, Jefferson said, was unpredictable and unreliable. He believed justices were men motivated by the same passions, political motivations, thirst for power and legacy, and opinions as politicians and could not be counted on to be impartial interpreters of the Constitution. Today we know that although the judiciary is one of three branches of government which are supposed to check one another, it has merged with the others to form a federal monopoly on the meaning, scope, and intent of the Constitution, and hence the scope of its powers. In Jefferson’s time (as Secretary of State under President John Adams), the courts were all Federalists and were part of the problem!. The second, according to Mr. Jefferson, is always a legitimate option but argued that it was too extreme. The third option, as he articulated, is the “rightful remedy.”
With respect to the second option, it should be noted that support for secession has grown steadily over the years. In fact, support was so palpable in 2012 after Barack Obama was elected to a second term that the White House website received secession petitions from all 50 states, including such progressive states as New York, Massachusetts, New Jersey, California, and Illinois. The Petition for Secession submitted by Texas was the most popular, with more than 125,000 signatures. Two years later, when Reuters conducted a poll, it found that nearly one-quarter of Americans said they supported the idea of their states breaking away, a position most popular among Republicans and rural westerners. Most recently, we have heard of counties in California that wanted to secede from the rest of the state (claiming that they didn’t want to be subject to the progressive politics of big cities like San Francisco and Los Angeles), And just this year, 5 counties in Oregon petitioned to secede and join with their neighboring state of Idaho (again over progressive politics). The point is that when the time is right, secession becomes the most viable (and legitimate, despite what Lincoln said!) option to enjoy a government that actually represents them.
Back to government tyranny. What happens if the federal government has acted outside the legitimate bounds of the Constitution and has gotten away with it? Some examples might include the Obamacare ruling, declaring that government has the authority to mandate healthcare insurance; the issue of term limits, requiring Congress to balance the federal budget every year, requiring Congress to cite a specific provision in the Constitution granting authority for each law it proposes, and the unconstitutional granting of taxpayer funds to states in the form of grants), I would submit that there is a fourth option which is an Article V Convention. Congress will never pass legislation that limits its powers or that personally limits representatives in their political ambitions or political benefits, and so it must be up to the States to permanently rectify the offensive conduct. And thru an Article V Convention, the States can seek to amend the Constitution to right the wrongs of the federal leviathan, the federal “machine.” This option, most will admit, although legitimate in spirit, can be tricky and unpredictable. The reality is that it can become a “runaway convention,” just as the Philadelphia Convention (ie, the “Constitutional Convention”) was in 1787, which resulted in a new US Constitution (to replace the Articles of Confederation) with a completely new government design.
A brief review of history shows that, upon the advice of several states following the Annapolis Convention of September 11, 1786 (they submitted an official report from the Convention), the US Congress called for a convention of the states in Philadelphia, to begin on May 14, 1787, to address the defects in the Articles of Confederation – ““to render the constitution … adequate to the exigencies of the Union.” Although the work of the convention was officially to amend the Articles of Confederation, the Virginia Plan (Madison as author) began with the phrase “Resolved that the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, “common defense, security of liberty and general welfare.”
As we all know, and I hope students are being taught this in our public schools, the delegates did the very opposite. From the very beginning (thanks to the scheming of James Madison and his Virginia delegation), they scrapped the Articles altogether and drafted a completely new blueprint for their “common government.” This blueprint was the US Constitution.
In short, and to reiterate, the remedies to saving our republic lie with the States, or to the People.
US Presidents like Ronald Reagan and Donald Trump acknowledged this in their inaugural addresses to the American people:
When Ronald Reagan promised to reduce Washington’s influence over state and local government in his first Inaugural Address (1981), he said: “All of us need to be reminded that the federal government did not create the states; the states created the federal government.”
And when Donald Trump was sworn in, he echoed Thomas Jefferson and said:
“Today’s ceremony, however, has very special meaning, because today we are not merely transferring power from one administration to another, or from one party to another, but we are transferring power from Washington, D.C., and giving it back to you, the people.
For too long, a small group in our nation’s capital has reaped the rewards of government, while the people have borne the cost. Washington flourished, but the people did not share in its wealth. Politicians prospered, but the jobs left and the factories closed. The establishment protected itself, but not the citizens of our country. Their victories have not been your victories. Their triumphs have not been your triumphs, and while they celebrated in our nation’s capital, there was little to celebrate for struggling families all across our land. That all changes, starting right here and right now, because this moment is your moment — it belongs to you. It belongs to everyone gathered here today, and everyone watching, all across America. This is your day. This is your celebration, and this, the United States of America, is your country. What truly matters is not which party controls our government, but whether our government is controlled by the people. January 20th, 2017 will be remembered as the day the people became the rulers of this nation again. The forgotten men and women of our country, will be forgotten no longer.”
There are provisions in the US Constitution which recognize the sovereign power of the People and the States. There is the Ninth Amendment (which recognizes additional, unlisted rights reserved to the People), the Tenth Amendment (the powers reserved to the States), amendments one – eight of the Bill of Rights (inalienable and civil rights that the People are entitled to), the Thirteenth, Fourteenth, and Fifteenth Amendments (the Reconstruction era amendments primarily for African-Americans, abolishing slavery, acknowledging US citizenship and equal rights, and granting them the right to vote), the Nineteenth Amendment (women shall not be denied the right to vote), and the Twenty-First Amendment (citizens who are age 18 and older shall not be denied the right to vote). And then there is Article V…..
Article V (the “Amendment Process”) reads:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, OR, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
The Philadelphia Convention of 1787 provided two methods of proposing amendments to the U.S. Constitution. In the first, Congress, by two-thirds vote in both houses, proposes amendments to the states. If three-fourths of the states (38 at present) vote to ratify the amendment, it becomes part of the Constitution. Since 1789, Congress has proposed 33 amendments by this method, 27 of which have been adopted. In the second method, if the legislatures of two-thirds of the states (34 at present) apply, Congress must call a convention to consider and propose amendments, which must meet the same 38-state ratification requirement. This alternative, known as the Article V Convention, has not been implemented to date. Several times during the 20th century, organized groups promoted a convention that they hoped would propose amendments to the states, or to “prod” Congress to propose amendments they favored. The most successful was the movement for direct election of Senators, which helped prod Congress to propose the 17th Amendment. The most recent, which promoted a convention to consider a balanced federal budget amendment, gained 32 applications, just two states short of the constitutional threshold. When the balanced budget amendment campaign failed in the 1980s, interest in the convention option faded and remained largely dormant for more than 20 years. (Note that some states – Delaware, Maryland, New Mexico, Nevada, and Colorado – have rescinded their Article V applications).
In just the last five years, the Convention of States resolution has passed in 15 states: Georgia, Alaska, Florida, Alabama, Tennessee, Indiana, Oklahoma, Louisiana, Arizona, North Dakota, Texas, Missouri, Arkansas, Utah, and Mississippi.
Reviewing the history of the Article V Convention alternative, the record of the Constitutional Convention of 1787 clearly demonstrated the founders’ original intent. During the convention, they agreed that a second mode of amendment was needed to balance the grant of amendatory power to Congress. This method, clearly identified in Article V as co-equal to congressional proposal of amendments, empowered the people, acting through their state legislatures, to summon a convention that would have equal authority to propose an amendment or amendments, which would then be presented to the states for ratification. In other words, it provides a mechanism for the States to bypass Congress. (This alternative has never yet been used).
Only the states can summon an Article V Convention, by application from their legislatures. Some of the issues concerning this process include procedures within the state legislatures, the scope and conditions of applications for a convention, steps in submitting applications to Congress, the role of the state governors in the process, and limitations on what changes or amendments should be made to the Constitution.
“The Great One,” Mark Levin, advocates for this approach. Mr. Levin wrote a book back in 2013 entitled “THE LIERTY AMENDMENTS: Restoring the American Republic,” in which he proposes what he believes is the only viable solution to restoring constitutional governance, which is an Article V State Convention.
In his book, Mr. Levin writes:
I undertook this project not because I believe the Constitution, as originally structured, is outdated and outmoded, thereby requiring modernization through amendments, but because of the opposite – that is, the necessity and urgency of restoring constitutional republicanism and preserving the civil society from the growing authoritarianism of a federal Leviathan. The Statists have been successful in their century-long march to disfigure mangle the constitutional order and undo the social compact. To disclaim the Statists’ campaign and aims is to imprudently ignore the inventions and schemes hatched and promoted openly by their philosophers, experts, and academics, and the coercive application of their designs on the citizenry by a delusional governing elite. Their handiwork is omnipresent, for all to see – a centralized and consolidated government with a ubiquitous network of laws and rules actively suppressing individual initiative, self-interest, and success in the name of the greater good and on behalf of the larger community. The nation has entered an age of post-constitutional soft tyranny…
Unlike the modern Statist, who defies, ignores, or rewrites the Constitution for the purpose of evasion, I propose that we, the people, take a closer look at the Constitution for our preservation. The Constitution itself provides the means for restoring self-government and averting societal catastrophe in Article V. Article V sets for the two processes for amending the Constitution [the second of which I have included above].
The fact is that Article V expressly grants state legislatures significant authority to rebalance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful, as many delegates in Philadelphia and the state conventions had worried it might. [Levin, pp. 1-13]
In this excerpt from Levin’s book, we see that he tacitly admits that it is possible for an Article V Convention to turn into a “runaway convention.” Additionally, the petite constitutional attorney Publius Huldah says the same. She takes Levin to task in her article, “Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!,” by claiming that while he believes that such a convention is safe and legal and can be controlled, he never explains why Article V can effectively prevent it from happening and turning into a runaway convention. (In her opinion, Nullification and Interposition are the most effective ways to curb the actions of the federal government).
And then there are the opinions of some of the greatest legal minds in the country who agree that Article V doesn’t provide enough details to be able to control a convention of states. {See their quotes and comments in the ADDENDUM section]. I’m not a great legal mind, but I too agree and perhaps that’s what our Founding Fathers envisioned. Perhaps they left the language in Article V open to give states the option of radically changing their common government.
In fact, five years ago, in September 2016, the group pushing this option, Convention of States, held a mock convention to come up with proposed amendments to the Constitution. The results show how they plan to use a convention to implement an extreme agenda into the Constitution and how a convention CANNOT be limited. The changes they proposed would drastically alter the federal government and put civil rights and needed programs, including Social Security, Medicare, and Medicaid, at risk. (Some might say that Medicaid needs to be re-addressed due to the ease of claiming it fraudulently)
And that is what I propose SHOULD happen… A Runaway Convention. Either the states state the exact intention of their convention in their applications (although I’m not sure 34 states will be on board) or they do what Madison did and sabotage the intended purpose and push for a different agenda.
What is the “agenda” I am talking about? I propose using an Article V Convention of states to divide our country into at least two distinct and independent unions.
Why do I propose a “runaway convention”?
Let’s face it, our country is hopelessly divided. One can feel revolution in the air. The country is so divided that we may not long endure as a constitutional republic. Our US Constitution may not endure. It certainly doesn’t mean today what our Founders, and the states which ratified it, intended. And so, as Sasha Issenberg asks in her 2018 Intelligencer article, “Divided We Stand….:”: If our country is so hopelessly split, why don’t we go ahead, make it official, and break it up? As she wrote: “Let’s just admit that this arranged marriage isn’t really working anymore.” I have written on this subject many times myself.
And who honestly hasn’t also thought this would be a perfect solution to the chronic division, the hatred, the mistrust, the abuse, the attacks, the hassles, the accusations, the smear campaigns, the name-calling, the illegality and fraud in elections (to totally erode public confidence in elections), the government harassment and spying (on political opponents, that is), the barrage of fake news, the political agendas in public schools, the attacks on our Founding Fathers, the incessant accusations of “racism.” the assaults on our nation’s image, the protests, the mobs, the endless looting and burning of cities, the rise in violence, etc etc. The futility of having ideological opposites constantly grinding away at one another is just too much to bear. One can almost finally imagine the futility on the part of the southern states of remaining in the Union with the northern states which essentially despised them and used the government to plunder their wealth. It was simply better to leave, they said.
It’s not only unbearable, it’s threatening the very fabric of our country. It is threatening every one of the foundations our country was built on. The Church – gone. Family – gone. Education – essentially gone. The Constitution – transformed. Honest elections – gone. Honest politicians – unheard of (except for a few good ones).
Clearly, the big ideological rift is between the Democrats and the Republicans. Democrats have become even more a party of cities and upscale suburbs whose votes are inefficiently packed into dense geographies and who share an extreme leftist political opinion; many are socialist and/or Marxist and want more government. And Republicans are the party of suburbs and rural areas; they tend to be conservative, cling to their religion, guns, and family values. The ideologues do not see eye-to-eye. Each side accuses the other of derailing the country, of interfering with the changing social dynamics or forcing social change. The truth is that the two political parties have divided the American people along sharply ideological lines. The are, in truth, enemies.
Nate Cohen wrote in his article “Why Political Sectarianism is a Growing Threat to American Democracy” (April 2021):
“This threat to democracy has a name: sectarianism. It’s not a term usually used in discussions about American politics. It’s better known in the context of religious sectarianism — like the hostility between Sunnis and Shia in Iraq. Yet a growing number of eminent political scientists contend that political sectarianism is on the rise in America.
Whether religious or political, sectarianism is about two hostile identity groups who not only clash over policy and ideology, but see the other side as alien and immoral, (as an enemy). It’s the antagonistic feelings between the groups, more than differences over ideas, that drive sectarian conflict.
Any casual observer of American politics would agree that there’s plenty of hostility between Democrats and Republicans. Many don’t just disagree, they dislike each other. They hold discriminatory attitudes in job hiring as they do on the Implicit Association Test. They tell pollsters they wouldn’t want their child to marry an opposing partisan. In a paper published in Science in October by 16 prominent political scientists, the authors argue that by some measures the hatred between the two parties “exceeds longstanding antipathies around race and religion.”
More than half of Republicans and more than 40 percent of Democrats tend to think of the other party as “enemies,” rather than “political opponents,” according to a CBS News poll conducted in January. A majority of Americans said that other Americans were the greatest threat to America……….
But the two parties have not only become more ideologically polarized, they have simultaneously sorted along racial, religious, educational, generational and geographic lines. Partisanship has become a “mega-identity,” in the words of the political scientist Lilliana Mason, who claims the clash is between white, Christian conservatives and a liberal, multiracial, secular elite.”
And so, I conclude that aside from revolution (violence) and aside from secession (which might become violent), an Article V Convention might be the way to peacefully divide our country into at least two separate and independent countries (or perhaps two separate and independence “territories,” each with sovereign rights and powers).
I think that scholars – men and women who are as intellectual and with the same moral and religious character as our Founding Fathers, who have the same enduring faith and loyalty to the Constitution and to the principles and values upon which our country was founded – should come up with a strategic plan
Again, at stake is our constitutional republic, our nation’s founding values, and our very precious founding documents, the Constitution and the Declaration of Independence. They must survive. The common government, as devised and intended by our Founders and by the individual States, must survive. Dividing the country up might be the only way to save them.
References:
Charles T. Pace, SOUTHERN INDEPENDENCE. WHY WAR? Shotwell Publishing (Columbia, SC), 2015.
Diane Rufino, “A Re-Declaration of Independence,” Forloveofgodandcountry’s Blog, January 23, 2021. Referenced at: https://forloveofgodandcountry.com/2021/01/23/a-re-declaration-of-independence/
Diane Rufino, “The Rightful Remedy to Curb Federal Spending: State Escrow Accounts,” Forloveofgodandcountry’s Blog, November 8, 2015. Referenced at: https://forloveofgodandcountry.com/2015/11/09/the-rightful-remedy-to-curb-federal-spending-state-escrow-accounts/
Diane Rufino, “Nullification vs. Article V Constitutional Convention: Where is the Honest and Open Discussion?” Forloveofgodandcountry’s Blog, January 5, 2014. Referenced at: https://forloveofgodandcountry.com/2014/01/10/nullification-vs-article-v-constitutional-convention-where-is-the-honest-and-open-discussion/
Diane Rufino, “NULLIFICATION – The Power to Right Constitutional Wrongs,” Forloveofgodandcountry’s Blog, July 9, 2015. Referenced at: https://forloveofgodandcountry.com/2015/07/09/nullification-the-power-to-right-constitutional-wrongs/
“Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” issued by Secretary of Homeland Security on April 7, 2009. Accessed at: https://fas.org/irp/eprint/rightwing.pdf
James L. Buckley, “How Congress Bribes States to Give Up Power,” Wall Street Journal, December 25, 2014. Referenced at: http://www.wsj.com/articles/james-l-buckley-how-congress-bribes-states-to-give-up-power-1419541292. Mr. Buckley is a retired federal appellate judge and a former U.S. senator.]
“The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress,” Congressional Research Service, updated Oct. 22, 2012. Referenced at: https://crsreports.congress.gov/product/pdf/R/R42592 [a companion report, CRS Report R42589, The
Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress,
identifies contemporary issues for Congress and analyzes the congressional role in the Article V Convention process in greater detail]
Jay Riestenberg, “US Constitution Threatened as Article V Convention Movement Nears Success,” Common Cause, March 21, 2018. Referenced at: https://www.commoncause.org/resource/u-s-constitution-threatened-as-article-v-convention-movement-nears-success/
Amos Perkins, “OPINION: The best way to save America may be to break it up,” The Wichitan, October 23, 2020. Referenced at: https://thewichitan.com/68290/uncategorized/68290/
Sasha Issenberg, “Divided We Stand: The Country is Hopelessly Split. So Why Not Make it Official and Break It Up?”, Intelligencer, November 14, 2018. Referenced at: https://nymag.com/intelligencer/2018/11/maybe-its-time-for-america-to-split-up.html
List of State Partition Proposals – https://en.wikipedia.org/wiki/List_of_U.S._state_partition_proposals
Nate Cohen, “Why Political Sectarianism is a Growing Threat to American Democracy,” The New York Times, April 19, 2021. Referenced at: https://www.nytimes.com/2021/04/19/us/democracy-gop-democrats-sectarianism.html
Margaret Wood, “May 1787: The Beginning of the Constitutional Convention, Library of Congress, May 25, 2016. Referenced at: https://blogs.loc.gov/law/2016/05/may-1787-the-beginning-of-the-constitutional-convention/
Full text: 2017 Donald Trump Inauguration Speech Transcript, Politico, January 20, 2017. Referenced at: https://www.politico.com/story/2017/01/full-text-donald-trump-inauguration-speech-transcript-233907
FULL VIDEO – Donald Trump’s Inaugural Address (Jan. 20, 2017) – https://www.youtube.com/watch?v=sRBsJNdK1t0&ab_channel=ABCNews
FULL VIDEO – Donald Trump’s Inaugural Address (Jan. 20. 2017) – https://www.nytimes.com/video/us/politics/100000004863342/donald-trump-full-inaugural-address-2017.html
ADDENDUM:
I. The war of 1861-1865 could not rightfully be called a “civil” war because:
(1) A civil war is two groups within a country fighting for possession of government. One group wants to take power and control away from the other group. The southern states (13 in all) had seceded peacefully from the Union and immediately formed a new sovereign country, the Confederate States of America, and adopted its new constitution.. The South, the Confederacy, had no desire to overthrow, possess, or even destroy the federal government because they had legally and willfully separated bonds with it. They just wanted to escape and live in peace.
(2) Sovereign states cannot engage in a “civil” war. The States were pronounced “sovereign” by the British King and Parliament in the Treaty of Paris (1783), by other foreign nations, and by their own documents (ie, the Declaration of Independence, the Lee Resolution). No State surrendered its sovereignty or was thought to have done so. Nobody suggested (except Lincoln) that membership in the Union was compulsory and perpetual. In fact, three states – New York, Virginia, and Rhode Island conditioned their ratification of the US Constitution upon their absolute right to “reassume the powers delegated, withdrawing from the union entirely.” These were known as Resumption Clauses. In short, no state surrendered their independent sovereignty in joining the Union of 1788. And according to compact theory (ie, contract law), if one member to the federal union had the right, it would also apply to all the others.
New York’s Resumption Clause declared, “That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness.”
Virginia’s Resumption Clause read: “We, the delegates of the people of Virginia…Do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power, not granted thereby, remains with them, and at their will…”
And Rhode Island’s version read, “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”
Question: Could there ever be secured freedom and liberty in an association without the right to withdraw over abuse and tyranny? Do you think any state would have voluntarily joined the Union if such a right were forever denied?
(3) By joint resolution of both houses, on March 28, 1928, Congress established that the official name of the War of 1861-65 shall be “The War Between the States.” (still not a correct name). The correct name for the War would be “The War to Prevent Southern Independence.”
II. FULL TEXT OF LINCOLN’S GETTYSBURG ADDRESS:
“Four score and seven years ago, our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate — we cannot consecrate — we cannot hallow — this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”
III. SECESSION
The Declaration of Independence, the British Government, and the Articles of Confederation defined the people of each state as sovereign. They formed a federal republic whose aim was liberty (“to secure the blessings of liberty”) – freedom from tyranny, freedom from outside rule. They did this by delegating to the federal government (the “creature”) only those powers which were expressly delegated by the US Constitution and confirmed by each State’s ratification of it. It was a compact of separate states who joined voluntarily, with never a thought that their right to leave it would be questioned. Nowhere in the document does it say the Federal Government has the power to force States to remain in the Union.
In fact, three states—New York, Rhode Island, and Virginia included “Resumption Clauses,” which would allow the states to leave the union to “resume” their status as independent states.
New York declared, “That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness.”
Rhode Island said, “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”
Virginia stated, “Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”
If even one state made its ratification conditional upon the right to resume its sovereign powers (ie, the right of secession), and that ratification was counted towards the adoption of the Constitution and the creation of our second American union, then that same right applied to every other state who ratified the Constitution and joined the Union. All states come into the Union on equal footing.
IV. WHAT LEGAL SCHOLARS HAVE SAID ABOUT AN ARTICLE V CONVENTION:
“There is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or one issue, but there is no way to assure that the Convention would obey.” – Warren Burger, Chief Justice of the U.S. Supreme Court (1969-1986)
“I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?” – Antonin Scalia, Associate Justice of the U.S. Supreme Court (1986-2016)
“There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights.” – Arthur Goldberg, Associate Justice of the US. Supreme Court (1962-1965)
“Questions about such a convention have been debated for years by legal scholars and political commentators, without resolution. Who would serve as delegates? What authority would they be given? Who would establish the procedures under which the convention would be governed? What limits would prevent a “runaway” convention from proposing radical changes affecting basic liberties?…With these thorny issues unsettled, it should come as no surprise that warning flags are being raised about a constitutional convention.” – Archibald Cox, Solicitor General of the United States (1961-1965) and special prosecutor for the U.S. Department of Justice (1973)
“Any new constitutional convention must have the authority to study, debate, and submit to the states for ratification whatever amendments it considers appropriate…If the legislatures of thirty-four states request Congress to call a general constitutional convention, Congress has a constitutional duty to summon such a convention. If those thirty -four states recommend in their applications that the convention consider only a particular subject, Congress still must call a convention and leave to the convention the ultimate determination of the agenda and the nature of the amendments it may choose to propose.” – Walter E. Dellinger, Solicitor General of the United States (1996-1997) and the Douglas B. Maggs Professor Emeritus of Law at Duke University
“First of all, we have developed orderly procedures over the past couple of centuries for resolving [some of the many] ambiguities [in the Constitution], but no comparable procedures for resolving [questions surrounding a convention]. Second, difficult interpretive questions about the Bill of Rights or the scope of the taxing power or the commerce power tend to arise one at a time, while questions surrounding the convention process would more or less need to be resolved all at once. And third, the stakes in this case in this instance are vastly greater, because what you’re doing is putting the whole Constitution up for grabs.” –Laurence Tribe, professor of constitutional law at Harvard Law School
“The bigger threat is that a constitutional convention, once unleashed on the nation, would be free to rewrite or scrap any parts of the U.S. Constitution. Do we really want to open up our nation’s core defining values to debate at a time when a serious candidate for the White House brags about his enthusiasm for torture and the surveillance state, wants to “open up” reporters to lawsuits, scoffs at the separation of powers and holds ideas about freedom of religion that are selective at best?” – David Super, professor of law at Georgetown University
“Note what [Article V] does not say. It says not a word expressly authorizing the states, Congress, or some combination of the two to confine the subject matter of a convention. It says not a word about whether Congress, in calculating whether the requisite 34 states have called for a convention, must (or must not) aggregate calls for a convention on, say, a balanced budget, with differently worded calls arising from related or perhaps even unrelated topics. It says not a word prescribing that the make-up of a convention, as many conservatives imagine, will be one-state-one-vote (as Alaska and Wyoming might hope) or whether states with larger populations should be given larger delegations (as California and New York would surely argue).”- Walter Olson, senior fellow at the Cato Institute’s Center for Constitutional Studies
“Danger lies ahead. Setting aside the long odds, if California and 33 more states invoke Article V, there’s a risk that we’d end up with a “runaway” convention, during which delegates would propose amendments on issues including abortion, gun rights and immigration.” – Rick Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine
“Holding a Constitutional convention when the U.S. is embroiled in extremely toxic, uninformed and polarized politics is a really, really bad idea.” – Shelia Kennedy, professor of law and policy at Indiana University Purdue University Indianapolis
“But no rule or law limits the scope of a state-called constitutional convention. Without established legal procedures, the entire document would be laid bare for wholesale revision. Article V itself sheds no light on the most basic procedures for such a convention. How many delegates does each state get at the convention? Is it one state, one vote, or do states with larger populations, like California, get a larger share of the votes? The Supreme Court has made at least one thing clear — it will not intervene in the process or the result of a constitutional convention. The game has neither rules nor referees.” – McKay Cunningham, professor of law at Concordia University
“The result will be a disaster. I hate to think of the worst-case scenario. At best, the fight over every step along the way would consume our country’s political oxygen for years.” – David Marcus, professor of law at the University of Arizona
“At present, there are no rules regarding who can participate, give money, lobby or have a voice in a constitutional convention. There are no rules about conflicts of interest, disclosure of who is giving or expending money. No rules exist that address political action committees, corporate or labor union involvement or how any other groups can or should participate. Not only might legitimate voices of the people be silenced by convention rules, but special interests may be given privilege to speak and affect the deliberations…there are no rules limiting what can be debated at a constitutional convention. Given the potential domination by special interests, who knows the result?” – David Schultz, political science and election law professor at Hamline University
“An Article V convention might propose an amendment to restore or expand the liberties of the American people, but it also could propose an amendment that diminishes the liberties of the American people, or of some of the people. “ – John Malcolm, director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies
“But nothing in the Constitution limits such a convention to the issue or issues for which it was called. In other words, anything and everything could be on the table, including fundamental constitutional rights. Nor are there any guarantees about who would participate or under what rules. Indeed, for these reasons, no constitutional convention has been called since the first in 1787.” – Helen Norton, professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law at the University of Colorado
“The lack of clear rules of the road, either in the text of the Constitution itself or in historical or legal precedent, makes the selection of the convention mechanism a choice whose risks dramatically outweigh any potential benefits.” – Richard Boldt, professor of law at the University of Maryland
“We live in deeply partisan times. There are no certainties about how a constitutional convention would play out, but the most likely outcome is that it would deepen our partisan divisions. Because there are no clear constitutional rules defining a convention’s procedures, a convention’s “losers” may deem illegitimate any resulting changes. Regardless of the ultimate outcome, the process itself would likely worsen our already vicious national politics.” – Eric Berger, associate dean professor of law at the University of Nebraska College of Law
“There are no such guarantees. This is uncharted territory…We should not now abandon the very document that has held us together as a nation for over two and one quarter centuries. Rewriting the Constitution is a dangerous errand that would not only unravel the legal ties that have kept us together for so long but would also undermine our sense of national identity and the way that view ourselves as a people.” – William Marshall, professor of law at University of North Carolina
“Terrible idea…Today’s politicians don’t have the timeless brilliance of our framers. If we were to rewrite our constitution today, we wouldn’t get a particularly good one.” – Adam Winkler, professor of constitutional law and history at the University of California, Los Angeles
“I believe it’s a time for constitutional sobriety. It’s a time to keep our powder dry and not to move on an uncharted course. We are not the founding fathers. This would be disastrous.” – Toni Massaro, constitutional law professor at the University of Arizona
“Having taught constitutional law for almost 40 years, and having studied constitutions from around the globe, I have difficulty imagining anything worse.” – Bill Rich, professor of law at Washburn University in Topeka, Kansas
“There are no constitutional limits on what the convention could do, no matter what the states say going into it.” – David Schwartz, professor of law at the University of Wisconsin Law School
“The Constitution allows for the calling of conventions on a petition of enough states, but not limited conventions of enough states. If the delegates decide they don’t want to be bound by the (state) resolution, they are right that they can’t be bound.” – Richard H. Fallon Jr., constitutional law professor at Harvard University
“Once you open the door to a constitutional convention, there are no sure guidelines left. This is the constitutional equivalent of opening a can of worms.” – Miguel Schor, constitutional law professor at Drake University School of Law
“Thus, neither the states nor Congress may limit the convention to specific subjects. While the goal to propose a balanced budget amendment may provide guidance to the convention, it would not have the force of law…Put simply, the rewards of any constitutional change is not worth the risks of a convention. ” – Sam Marcosson, professor of law at the University of Louisville
“Even more frightening is that the entire Constitution will be in play during a convention. The First Amendment could disappear, so could gun rights. There is no guarantee that any of our current constitutionally protected rights would be included in a new constitution. The only guarantee is that all of those rights would be imperiled.” – Mark Rush, the Waxberg Professor of Politics and Law at Washington and Lee University in Lexington
“Most significantly, we advise the Legislature that a federal constitutional convention called with this resolution could potentially open up each and every provision of the United States Constitution to amendment or repeal. In other words, a federal constitutional convention could propose amendments to eliminate the protections of free speech; the protections against racial discrimination; the protections of freedom of religion; or any of the other myriad provisions that presently provide the backbone of American law.” – March 2018 legislative testimony of Russell Suzuki, Acting Attorney General, and Deirdre Marie-Iha, Deputy Attorney General, of the state of Hawaii
“Whatever one thinks about these proposed amendments, trying to pass them through an Article V convention is a risky business. The Constitution does not specify how the delegates for such a convention would be chosen, how many delegates each state would have, what rules would apply at the convention or whether there would be any limits on what amendments the convention could consider. A convention that was called to address a specific issue, such as budget deficits, might propose changes to freedom of speech, the right to keep and bear arms, the Electoral College or anything else in the Constitution. There is no rule or precedent saying what the proper scope of the convention’s work would be.” – Allen Rostron, associate dean for students, the William R. Jacques Constitutional Law Scholar, and a professor at the University of Missouri
“Whether I like or dislike the specific proposal is not the point — the point is that a constitutional convention is a risky and potentially dangerous way to propose amendments.” – Hugh Spitzer, professor of law at the University of Washington School of Law
“A Constitutional Convention could be dangerous and destructive to our country, and citizens should approach the idea with the same wariness the founders did…Do we really want to tinker with this nation’s fundamental rights – especially at a time when our country is deeply divided politically? Let’s not risk opening what could be a Pandora’s box of chaos and an existential crisis for the country.” – Dewey M. Clayton, professor of political science at the University of Louisville
“If a national constitutional convention were held, all of our rights under the current Constitution, and all of the government’s reciprocal obligations, would be up for grabs. Nothing in the Constitution constrains the process that would apply if a convention is actually called. Anything could go, including the process for ratification itself, and there would be no Constitution cop on the block to ensure that things don’t go seriously haywire.” – Kim Wehle, professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation
“Amendment by convention has never been attempted and little is certain about the powers and prerogatives of such a convention. The basic problem is that there appears to be no effective way to limit the convention’s scope once it is called.” – Stephen H. Sach, Attorney General of Maryland (1979-1987)
“It is unclear, for instance, what the agenda of the convention that the states would call would be. Some people even think that the scope of the convention would be unlimited, and that makes a lot of very rational people wary of making the whole Constitution up for grabs.” – John O. McGinnis, the George C. Dix Professor in Constitutional Law at Northwestern University Pritzker School of Law
“The dangers stem largely from the fact that it is an uncharted course…The alternative route in Article V is one that has never been taken. This route is obviously legitimate, but it is an unknown…Moreover, the convention would have a plausible case for taking an even broader view of its agenda. Convention delegates could claim that they represent the people who elected them, and that they are entitled to deal with any constitutional issue of major concern to their constituency. The states, quite unthinkingly and without consideration of the implications, have started a process that may eventually produce a shock to them and to the country. It is a process of undeliberate constitution making that would make James Madison turn over in his grave.” – Gerald Gunther, constitutional law scholar and professor of law at Stanford Law School
“In these contentious times, democratic institutions, norms, and views are under unprecedented stress. When debating whether to adopt a resolution to apply to Congress to call for an Article V Convention, Maryland legislators should keep in mind the possibility that the call could add to a widespread perception of national disarray and push the American Republic closer to a breaking point. The perils of an Article V Convention running amok and altering the core framework of the American Republic are high. This method of reform should therefore be used only as a last resort.” – Miguel González-Marcos, professor of law at the University of Maryland
“There is a risk of a runaway convention.” – Michael Gerhardt, constitutional law professor at the University of North Carolina School of Law
“So the fear among some people is that if we were to have such a constitutional convention that the whole Constitution would be up in the air again. It might be possible that the whole thing would be undermined, and no one would know going in what might replace it.” – Daniel Ortiz, constitutional law professor at the University of Virginia
“First, the national convention method may not result in any amendment, because it generates many uncertainties that can defeat the passage of an amendment. These uncertainties include what the legal rules are that govern the amendment process, what actions the other states will take, what role the Congress will play, and what amendment the convention will propose. Second, this method may result in a different amendment than the one that the state legislature desired through a runaway convention. Even if the state legislature specifically provided that the convention should only address a particular amendment, it is quite possible that the convention could propose an entirely different amendment and that amendment would then be ratified by the states.” – Michael B. Rappaport, professor of law at the University of San Diego
