By David Dietrich Via Fairfax Free Citizen
Judi Caler, Article V Issues Director for EAGLE FORUM of California, recently wrote an article opposing an Article V Convention, based on what she considers “myths” presented by Rita Dunaway, Staff Counsel for Convention of States (COS) Project. I found Ms. Caler’s writing typical of those who purport to be “Constitutionalists,” but then construct irrational arguments against the Constitution. I will, therefore, break down her fallacious arguments succinctly for all to understand.
First, it is important to understand what EAGLE FORUM supports. See here. Its first two principles are the United States Constitution and a Constitutional Republic Not a Democracy. Regarding the former, I will presume that “the United States Constitution” means the entire document and not just some arbitrary subset thereof. As for the latter, I think we agree that that is what our Founding Fathers bequeathed us.
Now, let’s look at the difference between the two forms of government identified by EAGLE FORUM. We’ll use LexRex for this purpose. A Democracy, then, is:
Rule by Omnipotent Majority. In a Democracy, The Individual, and any group of Individuals composing any Minority, has no protection against the unlimited power of The Majority. It is a case of Majority-over-Man.
Okay, I’m jiggy with that and don’t think we have any disagreement about its dangers.
A Republic, on the other hand, … is a constitutionally limited government of the representative type, created by a written Constitution—adopted by the people and changeable (from its original meaning) by them only by its amendment—with its powers divided between three separate Branches: Executive, Legislative, and Judicial. Here the term “the people” means, of course, the electorate.
I will add further definition here, that “We the People” more specifically means the States and their representatives (i.e., Delegates), as signatories of the Constitution.
So, assuming we agree on the meaning of “Republic,” as well as its benefits to a free society, let’s move on to its application today. Ms Caler begins her attack by accusing COS of “deceiving state legislators” by use of the term, “Convention of States.” To put things plainly, I’ll insert the exact words from Article V of the Constitution: “Convention for proposing Amendments.” Since the States apply and Congress complies, how is the meaning of Article V misconstrued here? I think not. It seems, rather, that Ms Caler is guilty of demagoguery.
Ms. Caler goes on to state perfunctorily that an Article V Convention cannot be controlled by state legislatures. Really? How does she know that? Does she actually think that when delegates behave in a manner contrary to their instructions, they cannot be reined in or replaced? How much more preposterous is that notion! Here is a definition of “Delegate” from dictionary.com:
a person designated to act for or represent another or others; deputy; representative, as in a political convention.
Note the word, “represent,” here. It’s quite clear to me.
Okay, it’s time to address the so-called “myths” of Ms Caler. “Myth #1” is that a COS is the only solution to an out-of-control Federal Government. This is perhaps the closest Ms. Caler comes to refuting Ms. Dunaway, but only by focusing on the word, “only.” Otherwise, Ms. Duaway offers a viable mechanism for addressing the problem. Ms. Caler’s other methods (i.e., electing, nullifying) are also useful. Somehow, though, Ms. Caler prefers extra-Constitutional means (i.e., nullifying) to what is prescribed by the Constitution itself. Strike One – Ms. Caler.
Ms. Caler’s “Myth #2” is that an Article V Convention won’t protect us from the Federal Government. She makes the preposterous claim that “Amendments are meant to correct errors. Not to protect The People.” So let’s just take the first one, regarding religion and those other pesky expression rights. Are those merely “corrections” to the Constitution? Wow, this is where Ms. Caler proves that she doesn’t understand the document itself! If individual and state rights are the real purpose of the Constitution, then we must live in fantasyland. Strike Two – Ms. Caler.
Ms Caler’s Myth #3 is that an Article V Convention doesn’t provide the states any authority over Congress. She claims that Congress’ power to “call” an Amendment Convention gives them complete power over that convention. Once again, she is wrong. Not only do the States have authority to hold a Convention, but they are also not beholden to Congress to hold it. The only Constitutional authority Congress has here is the calling. The ratification method is only “proposed” by Congress, not ordered. In addition, the word, “may” is optional, rather than mandatory. Words have meaning, and the Founders did not use them arbitrarily. Strike Three – Ms. Caler.
Let me drive this point home. The states could hold a Convention for proposing Amendments tomorrow. Congress could not stop them. If then 3/4 of the state legislatures ratify the proposed amendments, they will become law. Congress might object, but what could they do besides petition the Supreme Court for remedy? Like nullification, such action would be extra-constitutional, but the states have the sovereign power to do so. Therefore, the states also have the sovereign power to disregard Congress’ attempts to control an Article V Convention.
Regarding the “Necessary and Proper Clause” in Article I, Section 8, it specifically applies to the enumerated powers in Article I, Section 8. And if Congress’ power to “make all Laws” extends to the “calling” of an Amendment Proposing Convention, that is where such limited powers reside. The actual holding of said Convention has nothing to do with Congress, but rather resides with the States and their delegates. Constitutionalists need only refer to Amendment X for the real authority in this matter.
Now let’s move onto Ms. Caler’s Myth #4, that all Conventions are the same, because they contain the word, “Convention.” Not to be redundant, but simply to follow Ms. Caler’s mythology, the Convention authority under Article V cannot be clearer. Simply restated, it is a “Convention for proposing Amendments.” Did I miss something here? There is no additional authority. And once again, “calling” and “holding” do not have the same meaning in any dictionary I’ve ever read. Additional Congressional powers are mythical. Strike Four – Ms. Caler.
What Ms. Caler tries to do here is conflate what she considers pre-Constitutional bad behavior by our Founding Fathers with what might happen under the auspices of our current Constitutional Republic. In response, I’d like to know what other form of government Ms. Caler thinks we should have, under which Constitution, and how instituted, that meets her criteria for being properly established. Is there some other way that Ms. Caler thinks our independent States should have been established and then formed a Federal Government?
Ms. Caler comes up with a real doozy when she claims that once assigned by their respective States and then assembled, delegates are omnipotent and “sovereign” (i.e., like kings themselves). They can suddenly do whatever they want, much like the Committee of Public Safety that was soon to follow on another continent. How absurd! While, under extreme duress, the right to “alter or to abolish” our Form of Government is a natural one, it has nothing to do with a “Convention for proposing Amendments.” Rather, they each have their own place.
Ms. Caler speaks of “advocacy groups using semantics” in her unfounded argument. So let’s see who is really misconstruing the facts. On the one hand, Black’s definition speaks of a “Constitutional Convention,” which has power to change the Constitution. On the other, a “Convention for proposing Amendments” simply puts forth recommendations to the states for further action. Can anyone really say that the two types of Convention are one and the same, simply because they each contain the word, “Convention”? Now I ask, who’s blowing smoke here?
As for Ms. Caler’s Myth #5, she may actually have something here. We certainly do not know how a “Convention for proposing Amendments” will operate. She’s right that good behavior cannot be guaranteed. However, there is good reason to expect (as opposed to resorting to alarmist outcry) that the States will provide the necessary structure to produce a constructive outcome, given they are the ones applying for the event in the first place. As for basing her argument on something written by CRS, that’s poppycock! Just for that, I’ll call Ms. Caler out at first base.
Next, Ms. Caler’s Myth #6 states that it is mere speculation we haven’t had a “Convention for proposing Amendments” due to lack of sufficient applications. According to Ms. Caler, if we were to simply add up all the applications to date, we could easily reach the threshold number that requires the Congressional “call.” It hasn’t yet happened because, well, who knows? The real reason is that State leadership has not yet gotten their act together to make it happen. In any case, they don’t need Congress’ permission to hold one. Strike Five – Ms. Caler.
Regarding Ms. Caler’s Myth #7, there may actually be some merit in her argument. She’s correct that Article V does not cover instructions given to delegates. But then, neither is there anything in Article I, Section 5, regarding legislator behavior other than “Each House may determine the Rules of its Proceedings.” How does that define their actions? And while the former players are assignable and un-assignable, the latter may only be recalled by the electorate. Ms. Caler”s “gimmick” argument is too cute by half. This makes it Strike Six – Ms. Caler.
Ms. Caler’s Myth #8 is that a “Convention for proposing Amendments” has unlimited scope and plenipotentiary powers. First, Ms. Caler conveniently ignores the dependency shown by the word “for” following “Convention.” And second, Ms. Caler uses the non sequitur that because delegates are meeting for a specific purpose, they will somehow actually have any purpose they want. Once again, Ms. Caler makes an erroneous reference to the Declaration as the basis of her argument, because she doesn’t know her history. Strike Seven – Ms. Caler.
Lastly, Ms. Caler’s Myth #9 is that there is no way to restrain delegates to a “Convention for proposing Amendments.” While Ms. Caler may be using examples of current legislators, administrations, and judiciaries as the basis of her argument, they are irrelevant in this case. Instead, it would be better to show us which delegate to the original Constitutional Convention actually defied his state instructions. Secret or otherwise, the Convention in question can only have one outcome—proposed Amendments. Strike Eight – Ms. Caler.
Since Ms. Caler insists on reintroducing irrelevant arguments, I’ll have to simply refute her once again. Ratification has nothing to do with a “Convention for proposing Amendments.” Proposed Amendments are delivered to the States for Ratification. The States then either do or they don’t. The original Convention was different in more ways than need be presented here. So, given the possibility of a shadow Constitution and the dictatorial President we already have, what is the right choice for us? Should we just accept the status quo and cry “foul,” but do nothing?
State Legislatures have far greater power than they have come to accept since the founding. And it used to be that Governors were more powerful than the President. So, what’s changed? I say nothing really. It’s only become customary for the States to defer to an overreaching Federal Government. Why not then take back what was freely given? Legislatures are being duped by those who love the way things are going. We have become a de facto Democracy, ruled by a group of elites in Washington with no allegiance to We the People.
About the Author
David Dietrich lives in Hampton, Virginia, and is a District Captain for the Convention of States Project. He is passionate about holding our public servants accountable to their oaths to support the entire Constitution we have.