The Craziness of a ConCon [Constitutional Convention]

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.

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.

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

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.

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.)

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.

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.

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.

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.)

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.

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.

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?

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.

Just as the Framers don’t get the credit they deserve, the public of 1913 don’t get the derision they deserve either.

Both the Article V state process and electoral college are nearly extra-congressional. They provide for flanking movements, if not different battlefields.

Congress must call an Article V convention and count electoral votes respectively. That is all.

A “strategic thunderbolt” indeed.

If possible restoration of liberty is the goal, participation of the states in our government isn’t optional. It is essential.

So doing nothing is the answer?

No, the answer is to build a super-majority in favor of a return to constitutionality. Without this, a con-con can only create problems, not solve existing ones.

Of course, if there is a super-majority of Americans in favor of a return to constitutionalism, these problems wouldn't exist, would they?

If we cannot win simple majority elections, what in the world makes us think we can pass an amendment, which is at least 10x more difficult?

IOW, we have met the enemy and they is us. The American people must change to solve this problem. And that occurs in the culture, which conservatives have almost entirely abandoned attempts to influence.

Well since you are inclined towards (1) and (2), I think you are well and accurately describes by this old reply (3) comes in the next post:

In order to believe that a Convention of the States presents a greater threat to liberty than our current state of politics one must believe:

1. The Constitution is not being amended by three women in black robes +1 liberal in black robes +1 swing vote on a case by case basis.

2. The Constitution is not being amended at the caprice of the president by executive order.

3. The Constitution is not being amended at the caprice of the president when he chooses which laws he will "faithfully" execute.

4. The Constitution is not being amended daily by regulation done by an unaccountable bureaucracy.

5. The Constitution is not being amended by simply being ignored.

6. The Constitution is not being amended by international treaty.

7. The Constitution is not being amended by Executive Order creating treaty powers depriving citizens of liberty as codified in the Bill of Rights.

8. The Constitution is not being amended by international bureaucracies such as, UN, GATT, World Bank, etc.

9. The Constitution is not being amended by the Federal Reserve Bank without reference to the will of the people.

10. The federal government under our current "constitutional" regime has suddenly become capable of reforming itself, balancing the budget and containing the debt.

11. The national debt of the United States is sustainable and will not cause the American constitutional system and our economy to crash and with them our representative democracy, the rule of law, and the Constitution, such as it is, itself.

12. The Republican Party, presuming it gains a majority in the House and the Senate and gains the White House, will now do what is failed to do even under Ronald Reagan and George W. Bush and balance the budget, reduce the debt, stop regulating, reform the tax system, end crony capitalism, appoint judges who will not betray us and, finally, listen to the people.

13. That a runaway Convention of the States will occur, that it will persuade the delegates from conservative states, that it will be ratified by three quarters of the states' legislatures among whom conservatives control a majority, and the end result will somehow be worse than what we have now.

14. If we do nothing everything will be fine; if we keep doing what we have been doing everything will be fine; we have all the time in the world.

As to category (3), I refer you to this reply:

There are 99 houses in 50 state legislatures. Any leftist amendment would require only 13 of these legislative bodies from 99 to defeat ratification. In other words, three quarters of the state legislatures must ratify or 38 states. If 13 legislatures fail to ratify the amendment is defeated. Since ratification by legislatures requires both houses to consent, only 13/99 are required. That is very close to 13%.

If the Congress of the United States elects to have the ratification procedures conducted by conventions rather than legislatures, the method of selecting the delegates to those conventions would be chosen by the legislatures. If only 13 legislative bodies out of 99 object to the method chosen by the other body because it is considered to favor a leftist amendment, there is no ratification forthcoming from that state.

By either procedure the odds of a liberal amendment getting past so many conservative legislative bodies in so many states is both arithmetically and practically remote.

Finally, this is only the last line of defense, there are innumerable steps along the way which make a "runaway convention" virtually impossible and render the need for the states to fail to ratify very likely superfluous.

"But how do you plan on doing what you suggest? Unless you have a big majority clamoring for that it ain’t gonna happen."

It's easier to get a majority to vote to continue something that's already in place and popular, than it is to get them to dismantle something that is already in place.

So what you do is educate everyone on the fact that these programs are outside of the enumerated powers and a constitutional amendment is needed to restore proper authority and rule of law.

I didn't say it would be easy. But trying to restore enumerated powers without a plan to handle all the programs that would be affected is almost certainly doomed to defeat. You wouldn't be able to get a popular vote for it. And no judge would touch it.

Karl is one smart fellow. However his argument is a bit faulty. His second amendment argument falls for the idea of incorporation. That each item in the constitution applies to the states, usually as interpreted by a federal court. The constitution with a few exceptions applies to the federal government, and the federal government only. Thus, the federal government cannot abridge the right to keep and bear arms but states and localities can. Karl is spot on regarding the federal courts. But he is completely incorrect when he states that there is nothing wrong with our current constitution. For example the fourteenth and sixteenth amendments need immediate attention. Both need to be repealed. But more fundamentally a legal path needs to put in place to empower the states to directly resist federal tyranny. And this is to address Karl’s and I would say FReepers most fundamental concern which simply stated is the federal government won’t follow the constitution anyway. This is what the COS is intended to address, a lawless federal government. The shape any proposed amendment takes is up for debate but Mark Levin envisions an amendment allowing a super majority of the states to over rule a Supreme Court decision for example. Would the federal government ever issue such an amendment to the states for ratification? Hell no. And this is why we need the Convention of States to bypass the federal government and restore balance. As you state the morality of our people is the root of our present problems and I agree with that analysis. Regardless we must address the crisis that is upon us and the CoS is the peaceful way to do so while bypassing federal tyranny. Anyone has the right to disagree however I believe you re incorrect in doing so.

I plan likewise to impeach and remove the president. Please be advised my scenario is just as valid as your scenario.

Horsepucky. My 'what-if's' are based on literal past and current behaviors of the Oligarchy in D.C. From the President on down.

I cited State Legislatures having Homosexual Marriage law bans (as in my state) by overwhelming will of the people. They have been struck down by activist courts via ridiculous stretches of judicial argument. My question is what happens when these same courts do the same thing to whatever comes out of an Article V convention?

The current oligarchy has demonstrated that it will not be restrained by any law that restricts their agenda and power. They will circumvent it. They will ignore it. They have created legal arguments and precedents to ignore the current Constitution. My 'what-ifs' are based on the existing fruits of the very oligarchy an Article V process would attempt to yoke.

You hold that such 'hypotheticals' are as absurd as asserting you can single-handedly impeach the judiciary and the president because what will actually transpire is an 'unknown'.

Sorry, but common sense based on fruits is a better indicator of what is probable than simple daydreaming.

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.

They have trespassed against the rule of law already, and public opinion and even some media scorn has NOT dissuaded them from enacting their agenda and circumventing the Constitution. Amnesty? ObamaCare?

The fate of whatever is advanced at an Article V convention will by no means be immune from the same trespass and indifference by the whole of the federal government who can and will render the power of the States null and void in interfering with Federal matters.

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.

That supposition totally ignores the Oligarchy's present violations of similar separations of power, Rights and other limitations placed upon them in the existing Constitution.

What I am beginning to understand is that the proponents of Article V have absolutely no plans, nor any thought process given to counter what an illegal post-Constitutional Oligarchy is going to do to neuter their efforts to yoke the Beast.

Proponents are completely focused on the process, assuming that the process itself is enough to prevent what the Oligarchy has already done to the existing rule of law.

I'll say this again, a lawless oligarchy will not abide by additional laws of restraint placed upon it, because an Oligarchy is a law only unto itself.

It is the advocates of Article V who are trying to reshape the battlefield.

While at the same time, underestimating the enemy.

"And there are obviously going to be enough leftist legislatures to defeat anything we want as well".

The emphasized portion indicates that you believe there is enough votes to stop leftist amendments, therefore I believe it is fair to eliminate your opposition based on category (3), there being no downside risk.

Instead you advise we "spend your time electing conservatives." Rather than snarkly pointing out that that this approach has not succeeded very well and is not likely to succeed well in the future, I simply say that I know of no one who supports Article V who opposes electing conservatives. Quite to the contrary, they are fully in favor of electing conservatives. I do not understand why some of those who want to elect conservatives are opposed to Article V, the two were quite compatible and complement each other.

As you observe above, there is no realistic downside risk and, who knows, fate has many cards to deal and we might yet find some Black Swan event which changes the political climate entirely. Luck goes to the prepared.

Oh, stop your nonsense. The alleged "oligarchy" still submits itself to elections, still submits itself to judicial review. Just because you happen to disagree with the results of those elections or disagree with the results of judicial review, does not mean that we have an oligarchy or that the oligarchy is behaving extraconstitutionally.

If you're ignorant of the reasoning of the courts based on the 14th amendment which mandates homosexual marriage, it does not mean that they are not operating within legitimate range of judicial review. I also disagree with the decision but I do not say that it is tyrannical. Likewise, I disagree with the courts upholding Obamacare, I think it was wrongheaded, I think it was basically unconstitutional, but that does not make it tyrannical and that does not mean that the courts are controlled by the "oligarchy."

It is impossible to to argue with definitions like" lawlessness" or "oligarchy" which are not found in the dictionary. Just because you do not like what the process produces does not make it "lawless." It does not make judges or politicians "oligarchs." If they are trespassing good sense when they wield their "Pen and phone," or even transgressing the Constitution in doing so, that does not mean that in another context they will be empowered to trespass against explicit amendments of the Constitution. Just because the Supreme Court rules for Obamacare and upsets you doesn't mean the Supreme Court will feel empowered to reach out and commit some wrongdoing in an area in which its jurisdiction has been explicitly withdrawn by amendment. The entire context will have changed.

But let's assume that you are dark conspiratorial suppositions come to pass, let's go ahead with Article V and then fight your fight at least from higher ground, from a more explicit expression of the Constitution which makes the "oligarchy" explicitly rather than implicitly wrong which explicitly controls the court, which changes the process.

It is now time for you once again to say:

"DO IT"!

The American people must change to solve this problem. And that occurs in the culture, which conservatives have almost entirely abandoned attempts to influence.

Root cause of problem stated right there.

Or, to quote Adams "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

It is possible that since a growing majority of Americans are no longer moral OR religious (hence the cultural rot), our Constitution is inadequate to restrain wickedness of a people who are no longer governed by biblical morality.

A people who are not governed by God will be ruled by the tyrants of men.

Here we are.

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