{"id":1931,"date":"2013-09-22T13:52:49","date_gmt":"2013-09-22T19:52:49","guid":{"rendered":"http:\/\/www.orderofephors.com\/?p=1931"},"modified":"2013-09-22T13:52:49","modified_gmt":"2013-09-22T19:52:49","slug":"the-article-v-convention-debate-2","status":"publish","type":"post","link":"https:\/\/www.orderofephors.com\/?p=1931","title":{"rendered":"The Article V Convention Debate"},"content":{"rendered":"

An otherwise highly respected authority on constitutional law\u2026 writing under the pseudonym Publius Hulda (PH)\u2026 has written an extensive critique of Mark Levin\u2019s bestselling book, The Liberty Amendments, <\/em>in which Levin urges the states to move toward an Article V convention.<\/p>\n

Article V of the U.S. Constitution provides for the Constitution to be amended either through amendments originating in the U.S. Congress, or through a call for a constitutional convention originating in the legislatures of two-thirds of the states. \u00a0\u00a0The primary purpose of an Article V convention would be to repair the substantial damage done to our Constitution through more than two hundred years of purposeful liberalization.<\/p>\n

None of the current twenty-seven amendments contained in the Constitution had their origin in the state legislatures, which is perhaps the primary reason why some otherwise sensible patriots, unfamiliar with the state legislatures, tend to oppose the idea of an Article V convention\u2026 as if the first one-hundred people, chosen at random from a city street, would make decisions or reach conclusions any less reasonable than the decisions and conclusions reached every day, every hour, every minute by the U.S. Congress, the federal bureaucracy, and the federal courts.<\/p>\n

As one who spent an entire career working in state legislatures from New England to Texas, and as one who played a singular role in reversing the balance of power in Congress between 1975 and 1994, I suspect that I may be in a far better position to judge the relative merits of the state legislatures and the U.S. Congress than those who view those lawmaking institutions through the jaded lenses of the mainstream media.<\/p>\n

In reading PH\u2019s numerous criticisms of Levin\u2019s work, I found numerous instances that require either refutation or clarification.\u00a0 For example, PH begins with a statement that compares well with Barack Obama\u2019s fanciful, but meaningless, \u201chope and change\u201d theme, suggesting that, \u201cOn one side of this controversy are those who want to restore our Constitution by requiring federal and state officials to obey the Constitution we have; or by electing ones who will.\u201d<\/p>\n

PH cites Article VI of the Constitution which states that, \u201cThe Senators and Representatives before mentioned (the U.S. Congress), and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution\u2026\u201d\u00a0 In a giant leap of faith, based on nothing more than wishful thinking, PH concludes that, \u201cThis requires them to refuse to submit to \u2013 to nullify<\/em> \u2013 acts of the federal government which violate the Constitution\u2026 We note that the Oath of Office requires obedience to the Constitution alone<\/em>.\u00a0 The Oath does not require obedience to persons, to any agency of the federal government, or to any federal court.\u201d<\/p>\n

PH is absolutely correct\u2026 but only in theory.\u00a0 If members of the federal establishment felt any real fealty toward the Constitution, is it not reasonable to assume that we might see evidence of it on a daily basis?\u00a0 Instead, the Congress and the executive branch have developed mechanisms\u2026 most often related to federal funding\u2026 that make it imprudent for state and local officials to tell the federal government to simply \u201cshove it.\u201d<\/p>\n

The Congress has rarely taken Article VI seriously.\u00a0 However, with the EPA\u2019s September 20 publication of stringent new standards, limiting CO2 emission from new power plants to 1,100 pounds per megawatt-hour, we now have the perfect opportunity to see whether or not the states have the courage to \u201cnullify\u201d the new standard.\u00a0 State officials complain that the only way new coal and gas-fired power plants could be built under the new standard is with an experimental technology called Carbon Capture & Storage (CCS).\u00a0 American Electric Power has developed one small CCS demonstration project in West Virginia, at a cost of $100 million to produce 20 megawatts of power.\u00a0 And although the demonstration project has now been abandoned, the EPA calls on the electric power industry to rely on that uneconomic technology.<\/p>\n

PH writes that, \u201cWe have read original writings of our Framers<\/em> and know what our Framers actually <\/strong>told the States to do when the federal government violates the Constitution: Nullification<\/em> of the unlawful act is among the first of the recommended remedies \u2013 <\/strong>not one of which is \u2018amendment of the Constitution.\u2019\u00a0 The claims of the nullification deniers have been proven to be false.\u00a0 To persist<\/em> in those claims \u2013 or to do as Levin seems to do and ignore the remedy of nullification<\/em> \u2013 is intellectually and morally indefensible\u2026\u201d<\/p>\n

Yes, the Framers gave us Article VI, a requirement that all those in positions of authority, at all levels of government, must support the Constitution. \u00a0Everyone understands that.\u00a0 But what if the federal government grows so large and so out of control that those in the executive, legislative, and judicial branches simply find it more convenient to ignore the Constitution?\u00a0 What do we do then?\u00a0 Do we to simply lie down, curl up in a fetal position, and suck our thumbs?<\/p>\n

If PH, and others, believe that the Framers intended nullification to be the principal remedy for unconstitutional acts by the federal government, then why did they not stress nullification as an alternative in Article V or in the 10th<\/sup> Amendment?\u00a0 How did the Article V convention, instead, become the principal remedy for an over-reaching federal establishment?\u00a0 Nullification was a given<\/em>, not requiring specificity, because in our constitutional republic it is the states that hold the ultimate power.\u00a0 But because the Framers understood the tendency of centralized governments to grow too big and too powerful, it is precisely for that reason that they found it necessary to specify the alternative of an Article V convention.<\/p>\n

PH accuses Levin of ignoring the concept of nullification.\u00a0 That simply is not true.\u00a0 Every Article V proponent, who also honors the 10th<\/sup> Amendment, begins with nullification as a first principle.\u00a0 But what if nullification is an impractical solution\u2026 what then?\u00a0 That is the point at which Levin and other Article V proponents take up the issue. \u00a0Although Article VI requires all members of Congress, the state legislatures, the federal and state bureaucracies, and the federal and state courts to support the Constitution, it provides no specifics and no penalties for failure to do so.<\/p>\n

Unfairly Ascribing motives to others, PH insists that Article V convention proponents feel that the only way to deal with a federal government which \u201cconsistently ignores and tramples over the Constitution\u201d<\/em> is by amending the Constitution, asking, \u201cDo you see how silly that is?\u201d<\/p>\n

Silly?\u00a0 What is silly<\/em> is to point out time and time again that the federal government \u201cconsistently ignores and tramples over the Constitution,\u201d and then fail to offer a single suggestion as to how we might induce those in positions of power at the federal level to obey the Constitution.\u00a0 If anyone owes the public an apology it is the opponents of the Article V convention\u2026 those who so cavalierly dismiss the paramount role of the state legislatures in our constitutional republic.<\/p>\n

In one of his\/her most bizarre arguments, PH argues that, \u201cLevin\u2019s amendments actually gut<\/em> our Constitution.\u00a0 Most increase <\/em>the powers of the federal government by making lawful what is now unconstitutional because it is not an \u2018enumerated power<\/a>.\u2019 \u00a0Others put a band-aid on a problem without solving the problem\u2026\u201d<\/p>\n

That simply is not true.\u00a0 I would suggest that PH read Levin\u2019s book before characterizing it.\u00a0 I would particularly recommend a careful reading of Levin\u2019s appendix in which he summarizes a list of proposed amendments.\u00a0 (See, pages 209-219)<\/strong><\/p>\n

Finally, in discussing the alternatives for originating amendments, PH quotes Article V, which states that Congress, \u201con the Application of the Legislatures of two-thirds of the several States, shall<\/em> call a Convention for proposing Amendments.\u201d\u00a0 However, PH then goes off the deep end, suggesting that, \u201cThe States don\u2019t \u2018call\u2019 (the convention) \u2013 all they can do is apply to Congress<\/em> for Congress to call it.\u00a0 But since Congress \u2018calls\u2019 it, Congress has the power to appoint whomsoever they will as delegates;\u00a0and nothing in the Constitution says they can\u2019t do this.\u201d<\/p>\n

Nor does the Constitution specify whether delegates must arrive at the convention by plane, train, or on horseback.\u00a0 Article V does not say Congress \u201cmay\u201d call a convention, nor does it say that Congress \u201cmay consider\u201d calling a convention.\u00a0 Article V says that Congress \u201cshall\u201d call a convention and that is precisely what the Framers intended.\u00a0 The Congress has no choice in the matter.\u00a0 Nor would the Congress have any say whatsoever in the appointment of delegates to the convention.\u00a0 If California wants to send fifty-five delegates and Oklahoma decides to send only three, that\u2019s fine.\u00a0 Californians need only be reminded that, like Oklahoma, their state will have just one vote\u2026 no matter what sort of mental gymnastics it might take to decided that one vote.\u00a0\u00a0 \u00a0\u00a0<\/strong><\/p>\n

Mark Levin has prescribed a totally sensible means of restoring and restating our constitutional principles, while the opponents of an Article V convention deny the authority of the states and engage in mere wishful thinking, pinning their hopes on the need for federal and state officials to finally begin to take their Article VI oaths seriously.<\/p>\n

The Obama administration has provided a 60-day window during which interested parties may comment on their CO2 standards for new power plants.\u00a0 As a test case, it will be interesting to see whether state governments have the courage to resort to \u201cnullification,\u201d or if the EPA will be successful in forcing the unachievable new standards down everyone\u2019s throat\u2026 killing untold numbers of jobs and driving power costs through the ceiling in the process.<\/p>\n","protected":false},"excerpt":{"rendered":"

An otherwise highly respected authority on constitutional law\u2026 writing under the pseudonym Publius Hulda (PH)\u2026 has written an extensive critique of Mark Levin\u2019s bestselling book, The Liberty Amendments, in which Levin urges the states to move toward an Article V … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[],"_links":{"self":[{"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=\/wp\/v2\/posts\/1931"}],"collection":[{"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1931"}],"version-history":[{"count":1,"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=\/wp\/v2\/posts\/1931\/revisions"}],"predecessor-version":[{"id":1932,"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=\/wp\/v2\/posts\/1931\/revisions\/1932"}],"wp:attachment":[{"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1931"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1931"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.orderofephors.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1931"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}