Points in Opposition to NEBRASKA LR6
I. How would LR6 change the U.S. Constitution?
LR6 is an application to Congress from Nebraska for Congress to call a convention under Article V of the United States Constitution to propose amendments, supposedly to limit the federal government. When Congress determines they have received 34 state applications, they are to call a convention; four states have passed “Convention of States”-sponsored applications to date.
“Convention of States Project (COS),” the sponsors of LR6, claim that the federal government has usurped the legitimate role of the States in the Constitution. They claim there are two Constitutions, the one we all know and love; and the one we are living under, as interpreted by the Supreme Court.
But this shows that the problem is not the Constitution; but that the Supreme Court violates it! In Federalist No 81 (8th paragraph), Hamilton says the remedy for federal judges who usurp power is to impeach them and remove them from the bench!
If the existing words are clear but the Supreme Court Opinions are wrong, how exactly would the Delegates to an Article V Convention change those words? Or how would amendments restore the "true" meaning of the Constitution: by expressly overturning the Supreme Court that "got it wrong"? And why would the courts comply with an amended Constitution when they twist definitions to avoid complying with the Constitution we have now?
What makes LR6 even more problematic is that it makes the question of a "limited" convention irrelevant. That is because LR6 does not propose a limited subject. LR35 claims, as state applications traditionally do, that the convention will be convened for the purpose of considering amendments for its stated purposes. However, the stated purpose of LR6, in addition to imposing fiscal restraints and term limits for federal officials, is "to limit the power and jurisdiction of the federal government."
As every school boy and school girl learns (or at least is supposed to learn), the Constitution delegates only a few enumerated powers to the federal government, with all other powers reserved to the States or the People. Articles I through III of the Constitution set forth, respectively, the powers and jurisdiction of the legislative, executive, and judicial branches of the federal government. Article IV addresses the relative powers of the federal government and the states. Article V, as we have seen, addresses the amendment process and the relative role of Congress and the state legislatures respecting amendments. Article VI contains the supremacy clause, which asserts that the Constitution, and treaties and laws of the United States made in pursuance of the Constitution, are the supreme law of the land. And Article VII sets forth the procedures for ratification.
In short, almost every part of the Constitution is about the powers and jurisdiction of the federal government. An application for an Article V convention that is "limited" to the powers and jurisdiction of the federal government is not limited at all! It encompasses everything! Robert Kelly, staff counsel to COS, admitted during a debate on March 15, 2014 in Yorktown, VA., that COS changes would encompass the bulk of our Constitution: https://youtu.be/kCApyUYvuRE
And Jordan Sillars, Communication Director for “Convention of States” posted online:
“I think the majority of Americans are too lazy to elect honest politicians. But I think some men and women could be found who are morally and intellectually capable of re-writing the Constitution.”
COS contemplates “re-writing” our Constitution! That suggests a new Constitution with a new mode of ratification. And that new mode of ratification can be whatever the drafters of the “re-written” Constitution want.
II. Amendments cannot control the federal government; nor were they intended to
The presupposition underlying the quoted statements in LR35 is that the federal government created by our Constitution is one of general and unlimited powers which can be restricted only by amendments.
That claim is totally at odds with our constitutional framework: our Constitution is one of delegated and enumerated powers only. When we ratified the Constitution, we created the federal government, and we enumerated the powers we delegated to it. It may lawfully exercise only the enumerated powers.
You cannot “fix” federal usurpations of undelegated powers by amending the Constitution to say the federal government cannot do what the Constitution never gave it the power to do in the first place!
Furthermore, amendments do not rein in governments predisposed to usurp. The “free exercise” clause of the First Amendment did not prevent the federal courts from banning prayers and the Ten Commandments in the public schools; the Second Amendment did not prevent the federal government from restricting our right to arms and ammunition; the Fourth Amendment did not prevent the NSA from spying on us without a warrant; and the Tenth Amendment did not prevent the federal government from usurping thousands of other powers not delegated.
Our Framers advised us to employ a very different course of action in response to federal usurpations of powers not delegated. (See Part VII).
Convention proponents have claimed that our Framers said the purpose of amendments is to rein in the federal government if it usurps powers not delegated. But our Framers never said that!
One delegate at the Convention of 1787, George Mason, objected to Congress’s being involved in the amendment process. On the last day of deliberations (Sep. 15, 1787), the convention method of proposing amendments was added; but since Congress “calls” the convention, and because of the “necessary and proper” clause at Art. I, §8, last clause, Congress has exclusive authority to organize the convention. (See Part III).
So George Mason did not get his way and was one of only three delegates who refused to sign the Constitution. See Madison’s Journal entry for September 17, 1787
What our Framers – those who signed the Constitution – actually said is:
- amendments remedy defects in the Constitution (Hamilton at the federal convention on Sep. 10, 1787);
- useful amendments would address the “organization of the government, not … the mass of its powers” (Federalist No. 85 , 13th paragraph); and
- “…amendment of errors” and “useful alterations” would be suggested by experience (Federalist No. 43 at 8.)
Some people point to the Bill of Rights, ratified in 1791, to show that amendments were meant to control the federal government.
But the Bill of Rights was added after the Constitution was ratified in order to fulfill a promise made to some States that if they ratified the Constitution, a bill of rights would be added later.
III. State Legislatures cannot restrict Delegates to predetermined amendments
State Legislatures cannot control the Delegates to a convention. The only power State Legislatures have under the Article V convention process is to apply to Congress for Congress to “call” a convention. Congress must call a convention when they determine 34 states have applied. And despite what Article V convention advocates claim, the Constitution authorizes only Congress to set up and organize the convention.
The Constitution was meant for ordinary citizens to understand, and it is quite clear. At Article I, Section 8, last paragraph -- the “Necessary and Proper” clause:
“The Congress shall have the Power…: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Article V of the Constitution delegates to Congress the power to “call” a convention. The “necessary and proper” clause delegates to Congress the power to make all laws that are necessary and proper to carry out its power to “call” a convention. This would include laws pertaining to the time and place of the convention; determining the number and selection process for its delegates; apportionment of convention delegates among the states; how votes will be apportioned among the delegates; etc.
Moreover, State Legislatures will not necessarily play a role in the ratification process, supposedly the ultimate safeguard for preventing a “runaway” convention. Ratification may be by state conventions instead of State legislatures; or the ratification process itself can be changed if a new Constitution is proposed, as happened at the “amendments” convention of 1787. After a convention is convened, the Delegates have the power to do whatever they want. (See Part V).
Yet Article V proponents mirror former law professor Rob Natelson in denying that Article V is a power granted to Congress! Natelson’s false claim rests on (1) the fanciful theory of “customs” where there is no precedent (2) his tortured interpretation of the “necessary and proper” clause, (3) his misrepresentations of Supreme Court cases, and (4) his crimes against the Laws of Logic. We are linking a paper that will explain the convoluted way Natelson has interpreted the power of the States to control an Article V convention. Please see this linked article.
The Congressional Research Service (CRS) Report issued April 11, 2014 confirms that Congress most likely will claim authority over the power to organize and set up an Article V convention. Because of lack of precedent and so many unknowns, the CRS Report suggests on page 27 that they’ll have to call a convention to see what sort of convention they get (general, limited or runaway)!
IV. Our Constitution Already restricts the federal government to the enumerated Powers
The Constitution already places clear limits on the federal government through enumerated powers, most of which are listed in Article I, Section 8. The 10th Amendment makes it clear that all other powers are reserved by the States or the People:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Federalist No. 45
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” – James Madison
The Constitution is not the problem. The problem is that the federal and State governments have ignored the Constitution; and the People are ignorant about what it says. The Constitution needs to be understood, defended, and enforced - not amended or rewritten.
V. State or federal law cannot prevent a “Runaway” Convention
Those promoting an Article V convention assure you that delegates to a convention can be controlled by State laws. But that is not true. Delegates cannot even be controlled by federal laws!
It is not a matter of mere opinion that delegates to a convention have unlimited sovereign authority. They do! The Declaration of Independence recognizes the sovereign right of a People to throw off their “Form of Government”:
“To secure [our unalienable rights], Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive…it is the Right of the People to alter or abolish it, and to institute new Government…”
–Declaration of Independence, 1776, Paragraph 2.
And just 11 years later, we did throw off our “Form of Government” and create a new one: the convention of 1787 was called by the Continental Congress “for the sole and express purpose” of revising the Articles of Confederation. But the delegates ignored their instructions and wrote an entirely new Constitution. Furthermore, they changed the mode of ratification. Whereas Article XIII of The Articles of Confederation required all of the then 13 States and the Continental Congress to approve Amendments before they became effective; the new Constitution provided at Article VII that it would require only nine States for ratification. There is nothing that can stop Delegates to a convention today from doing the same thing.
Convention proponents insist that a “convention of states” is not a “constitutional convention” where a new Constitution can be proposed. But Black’s Law Dictionary defines “constitutional convention” as “a duly constituted assembly of Delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution.”
Pretended limits are a marketing gimmick by its promoters designed to give Legislators and their constituents a false sense of security and control over a process which will be totally out of their control.
The only convention “for proposing amendments” is one called by Congress. And Congress has total power to organize and set it up. But once the delegates assemble, they are the sovereign representatives of the people and can do whatever they want.
VI. Wise Voices have warned against an Article V Convention
If an Article V convention is called by Congress, there is nothing that can stop the Delegates from writing a new Constitution with an entirely new mode of ratification.
Wise voices have warned of the deadly perils of an Article V convention: Here are three:
James Madison, Father of our Constitution, said in his November 2, 1788 letter to Turberville that he “trembled” at the prospect of a second convention; and that if there were an Article V Convention:
“…the most violent partizans,”, and “individuals of insidious views” would strive to be delegates and would have “a dangerous opportunity of sapping the very foundations of the fabric” of our Country.
Throughout Federalist Paper No. 49, Madison warns against an Article V convention to correct breaches of the federal Constitution. He said, among other things, that the legislators who caused the problem would get themselves seats at the convention and would be in a position to control the outcome of a convention.
Former US Supreme Court Justice Arthur Goldberg reminds us in his Sept. 14, 1986 editorial in The Miami Herald that at the convention of 1787, the delegates ignored their instructions from the Continental Congress and instead of proposing amendments to the Articles of Confederation, wrote a new Constitution; and warns us that “…any attempt at limiting the agenda would almost certainly be unenforceable.”
Former US Supreme Court Chief Justice Warren Burger said in his June 1988 letter to Phyllis Schlafly:
“…there is no effective way to limit or muzzle the actions of a Constitutional Convention…”
“After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda…”
“…A new Convention could plunge our Nation into constitutional confusion and confrontation at every turn…”
"Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” – Thomas Jefferson: Kentucky Resolutions, 1798
What did our Framers really say we must do when the federal government usurps power?
They never said, “When the federal government ignores the Constitution, amend the Constitution.”
They never said, “File a lawsuit and let federal judges decide.”
Instead, in addition to electing faithful representatives, they advised Nullification. Please see this linked article.
According to the Tenth Amendment Center, “Nullification is any act, or set of actions, that results in a particular law being rendered null, void or even just unenforceable within a particular area.”
Hamilton, Madison, and Jefferson said nullification is a natural right – it is NOT a “constitutional right.” Rights don’t come from the Constitution – they come from God.
When Congress, the President, or the Supreme Court act outside of the enumerated powers delegated in the Constitution, the action is unconstitutional, void and of no force. Nullification applies only to unconstitutional acts of the federal government – to usurpations of powers not delegated.
Nullification is being used today more and more against federal usurpations of powers not delegated. The Tenth Amendment Center reported that less than one month into the 2015 state legislative season, more than 200 bills had been introduced in State capitols to forbid the implementation within their respective borders of federal laws and regulations which usurp powers not delegated to the federal government by the Constitution of the United States.
According to the Tenth Amendment Center, 24 states have passed laws and 15 more states have introduced legislation to allow terminally ill patients access to drugs not approved by the FDA. Kansas, Idaho, Tennessee and Alaska have passed laws to block any new federal restrictions on the right to keep and bear arms, and similar bills have been introduced in 5 other states. Bills to deny “all material support or resources” to agencies like NSA that are engaged in mass federal spying operations within the state have been introduced in Texas, Alaska, Tennessee, Missouri, South Carolina, Oklahoma and 11 more states. In January 2015, Nebraska introduced LB643 to legalize medical marijuana.
The States, in their sovereign capacity, are the parties to the constitutional compact; and are thus the final authority on whether the federal government has violated the Constitution. There can be no tribunal above the authority of the States to decide whether the compact made by them has been violated by the federal government.
--Madison’s “Report of 1799-1800 on the Virginia Resolutions,” p 192, the 3rd Resolution [condensed]
We oppose LR6! Despite any pretended limitations written into it or in any “faithful delegate” bills, an Article V convention would have the inherent right to propose whatever changes to our Constitution the delegates want, including abolishing our “Form of Government” and rewriting or replacing our Constitution and changing the ratification process. And once called, it will be too late to stop it if we don’t like their agenda. Is that really what the Nebraska Legislature wants to apply for?
And we should ask ourselves, why would the federal government suddenly comply with an amended Constitution when they won’t comply with the Constitution we have now?
Nebraska already has the power to control within its borders the federal government and to insist that it stick to its enumerated powers. And we can use that power to solve our own problems at the state level without risking our Constitution. The Constitution is not the problem; let’s not fix what isn’t broken.
Kathy Wilmot, Vice President
Nebraska Eagle Forum
Beaver City, NE