The Craziness of a ConCon [Constitutional Convention]

The Market-Ticker ^ | Sept. 21, 2014 | Karl Denninger

[SatinDoll]

I keep getting asked about this and people keep advocating it, so let's talk about it.

The issue is a Constitutional Convention, with the expressed intent being to return the United States to its Constitutional Roots.

Sounds like a good idea, yes?

Well, it quite arguably is, if you'd like to see the government return to its Constitutional boundaries.

The problem is that this "remedy" isn't a remedy and if it comes to pass what you want won't happen.

I know this for a fact and, if you think about it, so do you.

I know what you're going to say: How can you be so sure?

It's simple: There is nothing wrong with the Constitution as it sits now. The problem is that it's not followed.

Let's just take one example: The Fourth Amendment

It reads:

Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It does not say:

a) Except when a police officer wants to stop and frisk you.

b) Except when the government thinks you might be a terrorist.

c) Except when someone else has your "papers" because you had to let them have same as an essential part of buying a service from them (e.g. your cell phone "tower" records.)

d) Except when you're driving while black.

e) Except when you're driving anywhere, at all, and the government thinks you might have drug money in the car but has no probable cause to believe so.

And on and on and on.

It says shall not be violated, and it further mandates that a warrant may only issue predicated on probable cause, supported by oath or affirmation (not the unsworn word of an unnamed "confidential informant" nor can a dog "swear an oath") and that the particular place to be searched and the persons or things to be seized must be named. That latter requirement is there so the cops can't go on fishing expeditions.

Let's try another one:

Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

It does not say:

a) Except for guns that fire more than one bullet with a single pull of the trigger, unless they were made before a certain date and you pay a license fee.

b) Except for guns that have more than some number of rounds of ammunition in the magazine.

c) Except for guns that have some undesirable physical characteristic, such as looking scary, rifles or shotguns with a barrel shorter than some dimension, or similar.

d) Except for guns that fire a projectile larger than (X), or having characteristics of (X) (e.g. armor-piercing ammo, etc)

e) Except for guns that have been made quieter by the addition of a sound-suppressing device, unless you pay a license fee for same and the local sheriff thinks you're nice.

f) Except if you don't have a permit to (buy|carry openly|carry concealed) or otherwise "bear" same.

g) Except if you'd like to buy and take it with you right now (e.g. "waiting period" laws.)

h) Except for rocket launchers.

i) Except for surface-to-air missiles.

j) Except for nuclear arms.

Now wait a second, you say! Those last three are bullcrap in private hands!

Maybe. But if so there is a way to make them unlawful within the Constitution -- pass an Amendment. Absent that, ownership of any of the above and the carrying of any of the above, without any sort of permit, is lawful.

Unwise? Maybe. And immaterial. It's lawful and any law that says otherwise is unconstitutional.

Don't even get me started on the Tenth Amendment.

I further challenge you to find anywhere in the Constitution where the United States Supreme Court, or any court for that matter, is empowered to re-write or as they like to say, interpret the plain language of said Constitution.

This is the sum total of what is said on same in The Constitution:

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

So where in there do you find there the power to rip up and rewrite said Constitution?

It's not there, and it never was.

Where there is legitimate debate over statutory construction let's have it, and let's have it there in the Supreme Court. But there is no debate of legitimacy over construction of the 2nd or 4th Amendments. There are excuses for adding clauses that never existed and still don't, but they're flatly unlawful irrespective of who pronounces otherwise. Those who claim that technology or other changes in life have made the world a different place have a means to address their concern: Pass an Amendment.

Instead what has happened in the "real world" we live in is that the government will find some thing they wish to do. They know it's unconstitutional but they do it anyway. Someone sues, after 5 or 10 years it makes its way to the Supreme Court and the government has in the meantime done its level best to stack the court with judges that will rule as it wishes. There is no law if the courts simply ignore what's in front of them, as occurred with Obamacare where the majority opinion ruled that a statute that was explicitly constructed not to be a tax was in fact a tax but the imposition of such a direct tax is barred from the Federal Government except in proportion to population. In other words you can be (directly) taxed but not in a different amount than someone else. This is why the 16th Amendment was necessary; to lay a tax on someone's work in proportion to what they made was unconstitutional.

All of this game-playing in the judiciary rests on the thinnest of foundation; so-called judicial comity and stare decisis. That is, the premise that once a decision is made even if blatantly unconstitutional, it is thereafter the foundation of everything that follows and reciprocity and recognition is owed against that (blatantly unlawful) decision.

You can't fix this with a ConCon or with "more Amendments" because they are subject to the same "interpretation" as has been all of the previous; the only solution is to unwind the previous violence done to the Constitution and then, if appropriate, pass Amendments that further constrain the rights protected by and powers delegated therein.

Those who argue otherwise are fools, and those who refuse to take up the underlying issue and address it head-on are playing with you and are attempting to get you to expend your resources on a false premise to thereby consume your efforts rather than solving the problem.

You can interest me in a ConCon when the First, Second, Fourth and Fifth Amendments are enforced as written -- not one second before.

The right place to enforce this is in fact the States. If the States will not do so, then the people have to decide whether we are 50 states or factually one state with 50 names.

You choose but don't blow smoke up my ass with this garbage about a "ConCon" fixing anything because it won't.

[DannyTN]

Okay, so they will only be as good as our state legislatures or the legislative committee assigned. Still if we can’t get legislatures to act right, then getting an attorney/client relationship to our legislatures to act right is going to be hard too.

[INVAR]

Article V is being sold for support as our last-chance attempt to restrain a post-Constitutional government by civil means.

I want to know how they intend for that to happen when the Object of the process is a post-Constitutional lawless oligarchy?

Can an uncivil lawless entity be brought to abide by the rule of law by civil means - which is what we are being told is the REASON we need to support a Convention to Propose Amendments? If that is the selling point - EXPLAIN to us how that will happen so we can support the process.

If you intend to do this simply for the sake of telling your kids “well, at least we tried” then I submit that those of you arguing for this process are not really serious about stopping the tyranny that is now our government. Either that, or you have absolutely no understanding of the true nature of that which you intend to restrain.

I worry that this movement will end up becoming a cliche along the lines of “If you want to stop an out-of-control federal government, vote Republican”.

[nathanbedford]

I accept second place to no FReeper in the breadth and depth of my replies and vanities describing the potential lawlessness and tyrannies to be feared of the Obama administration. These posts and vanities go back to 2008.

Article V is currently attacked by conservatives for a number of reasons all of which in my opinion are unpersuasive. My attempt is to cause conservatives who object to consider those objections rationally because I believe they will fall away upon examination because most of them are empty shibboleths. First we educate the base and motivate it and then the whole people.

You insist that we tell you how amendments which might come out of the process would be enforced and you insist that anyone who suggests that the post amendment process will evolve in many unanticipated but perfectly useful ways, simply do not understand the nature and degree of malevolence of our present government. We do not need to be told how naïve we are. We know who Barack Obama and his henchmen are. More broadly, we know the centrifugal forces at work which are spinning our government out of fiscal control. We know about the demographics which cause us to lose elections and which will ultimately and finally wrest the Republic out of what constitutional bounds still constrain it and condemn it to socialism.

We know these things but we think that it is better to fight in an arena in which we have a better chance of winning, (state legislatures rather than the federal legislature and the Obama administration) and, if we prevail in amending the Constitution, to fight upon a firmer legal, constitutional, political, and moral basis against the forces which are arrayed against us.

You label our present problem as being in a state of lawlessness but that is hardly an apt description. Our society operates within a state of law but the constitutionality and wisdom of those laws as well as the forces which influence the production of those laws are such as to be wrecking the Republic. But we are still a "lawful" society in the technical sense. We don't like the laws, we don't like the logic which rationalizes these laws with the Constitution, but the process is being played out at least on the surface and is fully rationalized by the institutions which govern us.

We are not operating with gulags or concentration camps yet. We are operating in the twilight zone of bizarre constitutional interpretation and elitist legislation. Those are quite different things from a lawless society. To the contrary we are a society operating at least under patina of the rule of law.

In a post constitutional amendment phase, if we remain as we are in terms of how the Constitution is interpreted, this corrupt process will be much improved because the baseline will have moved and it will be difficult for corrupt constitutional interpretation to prevail as easily as it is. The amendments which would be proposed undoubtedly will have much to do with process. It will make it more difficult for the powers which falsely interpret and imprudently legislate to continue to impose their will upon us.

If, on the other hand, the powers that be resort to violence to withstand the new constitutional environment, we at least can fight standing on a higher moral ground.

Yes, it is worthy to attempt to save the Republic, to be able to tell our children, "we tried." it is unworthy to take the counsel of despair. It is the fool's advice to let the perfect be the enemy of the good, to curse the darkness rather than light the candle. I will refrain from advocating Article V reform when I come to believe that those who knowingly risked their lives, their fortunes, and their sacred honor knew in advance the outcome of their revolution.

[SatinDoll]

Hysterics, uh-huh.

So, what exactly do you suggest?

[Art in Idaho]

I share your concerns but what if nothing is ventured? If the public gets behind this effort will it cause Congress to say, "Hey, these guys are serious, we better pass these Amendments ourselves." Will it have an effect on the overall political landscape? If the public is educated about the process, will it catch fire? I do believe "we tried" is better than nothing. What is your solution to the mess were in? The way I see it, it's Article V or, do you want us to just jump in now for the revolution?

[alpo]

How is proposing and passing amendments without House or Senate influence propaganda?

A majority of state legislatures are controled by conservatives. They could pass a term limit amendment that would limit citizens to 12 years of Federal office. That would clean most of the dead wood out of office and prevent the good ol’ boy network we now have. An amendment to let a majority of state ligislatures over ride a Supreme Court ruling could happen.

[Art in Idaho]

Very well said. Nothing ventured, nothing gained.

Bears repeating:

"First we educate the base and motivate it and then the whole people."

"The amendments. . will make it more difficult for the powers which falsely interpret and imprudently legislate to continue to impose their will upon us."

"Yes, it is worthy to attempt to save the Republic, to be able to tell our children, "we tried." it is unworthy to take the counsel of despair. It is the fool's advice to let the perfect be the enemy of the good, to curse the darkness rather than light the candle. I will refrain from advocating Article V reform when I come to believe that those who knowingly risked their lives, their fortunes, and their sacred honor knew in advance the outcome of their revolution."

[GeronL]

we can’t even elect good people to government but we are suppose to trust the same kind of people to do this?

not going to work

[alpo]

Term limits?

[Art in Idaho]

If the ballot box fails again, we're down to one box. If that's the case, may Almighty God help us.

If the November elections are hijacked, we are in big trouble, and yes, we're down to the last box. . May God help us all. . "our lives, our fortunes and our sacred honor." . .

[Art in Idaho]

We can’t even elect good people to government but we are suppose to trust the same kind of people to do this? not going to work

What's the alternative?

[INVAR]

You label our present problem as being in a state of lawlessness but that is hardly an apt description.

Levin himself refers to the current oligarchy running D.C as lawless. It is a excellent description perhaps surpassed only by referencing Obama, his ilk and the Ruling Class as facilitators of a velvet Coup.

Our society operates within a state of law but the constitutionality and wisdom of those laws as well as the forces which influence the production of those laws are such as to be wrecking the Republic.

The 'state of law' which runs the federal Beast is lawless when compared to the Constitution. If the Executive can "make law" and policy by decree outside the bounds of powers as ascribed in the Supreme Law, and the legislature abrogates and surrenders their duty to check such power, then at best the federal government has a form of law, but it's ends thereof are lawlessness and tyranny. Basically a long-winded way of saying that they are imposing tyranny under the color of law.

We are not operating with gulags or concentration camps yet.

I'm glad you said 'yet'. We are certainly on that trajectory given history.

If, on the other hand, the powers that be resort to violence to withstand the new constitutional environment, we at least can fight standing on a higher moral ground.

Finally we are getting somewhere in terms of an explanation that would benefit supporting an Article V process. I would submit to you that TPTB do not necessarily have to send out tanks to protect themselves from Amendments that limit their rule. They will use corruption, intimidation, extortion and many colors of law to derail the process and inhibit the implementation of whatever is ratified long before they resort to force.

My question then would be what this movement would be willing to do once that happens. Moral authority in their corner and all - despite what the Ruling Class and their media will undoubtedly convince a majority of.

it is unworthy to take the counsel of despair.

If you are going to fight a war, you better know your enemy, you better know yourself, you better know the ground you stand on and what the reality of the situation is. If you want to title that 'despair', then I submit you are not ready for war. You would be a Romantic who assumes rhetoric and bravado are enough to rally a lukewarm and complacent people to victory.

[Loud Mime]

and the purpose of the 1787 Constitutional Convention in Philadelphia was to improve the Articles of Confederation, not throw them out and start anew.

We now see that the actions of our government do not obey its design.

Now, we have people saying that an Article V convention will follow its design.

I don’t feel safe.

[INVAR]

Mr. Bedford touched on the aspect of truth that needs to be understood and accepted by those involved in an Article V process.

Given the nature of the Beast and it’s sycophants in D.C., it should be expected the Ruling Class Oligarchy will do all it can to derail the process, hijack the process and/or render the results of the process null and void via corruption, intimidation, threat, activism and refusal to abide the yokes under the color of law.

At that point the thwarted Article V process becomes the fulcrum of just cause for what will be necessary to preserve what little is left of liberty and employ all measures against the tyranny.

In short, Article V may become our generation’s Fort Sumter.

[Jacquerie]

The most common alternative suggestion from opponents to Article V is to enforce the existing constitution through the election of more conservatives.
Insistence that all we need to do is elect good men and women is no different from the Progressive belief that socialism will “work” once the best brains are put in charge. Both rely on a fantasy, that their conservative or progressive politicians are immune to nature. These dogmas are comfortable ruts which have been refuted throughout history, and reflect a naiveté and ignorance of American history, government and passions common to all men. Given the chance, men will grasp power and money, no matter the damage their avarice and ambition do to the larger society.
What has been forgotten or probably never understood by both progs and some Article V opponents, was accepted as an undeniable truth to the Framing generation; liberty is secured through the division of power. It clearly hasn’t been secured by nonexistent self-enforcing words in the constitution. In fact, just about all that remains in force from our constitution is the structure of the government. We still have the institutions of congress, courts and a president, but little more. Nearly every other clause has been excised or bastardized such that they’ve been inverted to allow infringement our liberties.
Liberty is secured through the division of power. Undivided power is despotic; it can be nothing else.
So, if the goal is restoration of liberty, and liberty requires division of authority, the question is how to return the states to the senate. Since our oppressors in DC will never divest themselves of power, and the framers provided a way to go around DC, it stands to pure logic that an Article V convention is our only hope.
Given the anti-American indoctrination by K-12 and universities, I don’t expect young people to know our bedrock principles. What I find amazing is the lack of understanding at FreeRepublic. Open, bold despotism is in the door, it is in the living room. No even-year election can boot him back outdoors. There is one possible way out, Article V.

[Jacquerie]

Please pardon the poor pagination.

[Jacquerie]

Here is a readable version of my last:

The most common alternative suggestion from opponents to Article V is to enforce the existing constitution through the election of more conservatives.

Insistence that all we need to do is elect good men and women is no different from the Progressive belief that socialism will "work" once the best brains are put in charge. Both rely on a fantasy, that their conservative or progressive politicians are immune to nature. These dogmas are comfortable ruts which have been refuted throughout history, and reflect a naiveté and ignorance of American history, government and passions common to all men. Given the chance, men will grasp power and money, no matter the damage their avarice and ambition do to the larger society.

What has been forgotten or probably never understood by both progs and some Article V opponents, was accepted as an undeniable truth to the Framing generation; liberty is secured through the division of power. It clearly hasn’t been secured by nonexistent self-enforcing words in the constitution. In fact, just about all that remains in force from our constitution is the structure of the government. We still have the institutions of congress, courts and a president, but little more. Nearly every other clause has been excised or bastardized such that they’ve been inverted to allow infringement our liberties.

Liberty is secured through the division of power. Undivided power is despotic; it can be nothing else.

So, if the goal is restoration of liberty, and liberty requires division of authority, the question is how to return the states to the senate. Since our oppressors in DC will never divest themselves of power, and the framers provided a way to go around DC, it stands to pure logic that an Article V convention is our only hope.

Given the anti-American indoctrination by K-12 and universities, I don’t expect young people to know our bedrock principles. What I find amazing is the lack of understanding at FreeRepublic. Open, bold despotism is in the door, it is in the living room. No even-year election can boot him back outdoors. There is one possible way out, Article V.

[INVAR]

Liberty is secured through the division of power. Undivided power is despotic; it can be nothing else. So, if the goal is restoration of liberty, and liberty requires division of authority, the question is how to return the states to the senate. Since our oppressors in DC will never divest themselves of power, and the framers provided a way to go around DC, it stands to pure logic that an Article V convention is our only hope.

So let me ask this question, taking your example of repealing the 17th Amendment.

Let us say that an Amendment to repeal the 17th is passed. What do you plan to do when an activist judiciary at the behest of the Ruling Class and their Praetorian media, rules the repeal 'unConstitutional'?? It goes to SCOTUS - they rule 5-4 against the Amendment, 're-interpreting' Article V to be restricted to the Congress to propose Amendments per precedents - Scalia, Alito and Thomas dissenting.

What do you plan to do if Obama decides to use his pen and phone to nullify the repeal by 'executive action'?

None of this takes into consideration that during the process itself, Holder and the Just-Us department begin various 'investigations' of states that sent delegates to the Convention and/or IRS intimidations of delegates and so forth.

What's the plan to make sure what Article V passes is implemented?

Since bold despotism is at the door as you say - how do you expect to get the despots in power to abide by what is passed and ratified when they will pull out every effort to render it null and void?

What is the plan of action when these efforts are deliberately thwarted by the oligarchy? The lawless are not going to abide by or acknowledge the law.

So what do you plan and propose to do once that happens?

[ctdonath2]

The whole point is they’re not following the rules.

[nathanbedford]

What do you plan to do when an activist judiciary at the behest of the Ruling Class and their Praetorian media, rules the repeal 'unConstitutional'??

I plan to impeach and remove those jurists. I plan to have withdrawn judicial review on this subject by the amendment itself.

What do you plan to do if Obama decides to use his pen and phone to nullify the repeal by 'executive action'?

I plan likewise to impeach and remove the president.

Please be advised my scenario is just as valid as your scenario. Neither of us with confidence can predict the atmosphere post amendment. Surely, operating as we agree we do within a patina of the rule of law, trespass against that rule of law in form and substance by jurists or president will turn public opinion and even the media against them to some presently unquantifiable degree making impeachment easier.

Do not forget, the amendment process envisions procedural as well as substantive revisions making it more difficult for both the Supreme Court and the president to behave extra-constitutionally because they have been removed from the process.

Think of it as MacArthur in World War II who, facing endless islands of fanatical Japanese resistance changed the whole strategic balance by leapfrogging and leaving isolated Japanese remnant forces to starve and die of disease. The Article V process is conceived of as just such a strategic thunderbolt which changes the battlescape and offers battle on more favorable geography and with better odds.

If you are going to fight a war, you better know your enemy, you better know yourself, you better know the ground you stand on and what the reality of the situation is. If you want to title that 'despair', then I submit you are not ready for war. You would be a Romantic who assumes rhetoric and bravado are enough to rally a lukewarm and complacent people to victory.

Please cease implying naïveté when we advocate engaging the left. It is the advocates of Article V who are trying to reshape the battlefield.