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.

[INVAR]

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 extraconstitutional.

Then we have absolutely nothing more to discuss.

Good luck with your crusade.

[Sherman Logan]

Thus, the federal government cannot abridge the right to keep and bear arms but states and localities can.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

If the right to "keep and bear arms" isn't one of the "privileges or immunities of citizens of the United States," what is?

14A changed the relationship between citizens, the states and the federal government a great deal from that of the original constitution, probably more than those who passed and ratified it intended it to.

[Sherman Logan]

Your math is absolutely correct. However, those 13 houses that you place reliance on to prevent liberal amendments from passing are equally applicable to keeping any conservative amendments from passing.

The amendment process was intentionally designed to be usable only when there was an overwhelming national consensus, both by population and by region. Which is simply not there for any of the remedies proposed by conservatives.

In fact, most of those initiatives could not win a simple majority referendum, much less be ratified as an amendment, which is at least an order of magnitude more difficult.

[Nuc 1.1]

An Amendment that is ignored, struck down by an activist judiciary or simply decreed to be void by the president, has no power.

A good statement that speaks to the heart of our present situation. This is the primary issue a CoS IMHO must deal with. The purpose of Mark Levin's amendment I mentioned is to provide the states a means to nullify federal edicts via a super majority of states as voted upon by the respective state legislatures. Can this method reign in the Feds? Maybe, if enough states vote to nullify. Will the feds follow the outcome? Maybe. If they don't we have at least tried to resolve our problems peacefully and we are no worse off then we are presently and we may argue we are a bit better off because the tyrants are further out in the open. Good reply FReeper. We need a bit more of thoughtful replies like this on FR.

[Nuc 1.1]

It is not the right to bear arms that is in question. I fully support the right to keep and bear arms, at all levels. The statement is that the constitution specifies the allowed federal activity and is intended to limit federal intrusion into our lives. I completely concur with your statement concerning the 14th. The progressive marxists have really made a mess of our nation.

[Da Bilge Troll]

When you say “ConCon” I know you’re spewing PropagandaPropaganda.

[SatinDoll]

ConCon is in the title and original article which, I suspect, you haven’t read.

As for the propaganda part just what part of all this do you mean is propaganda?

[Hostage]

Again it is not a Con Con, it is an Assembly of States organized for amending the current Constitution and NOT for drawing up a new Constitution.

An Assembly of States is not convened for the purpose of presenting a list of crimes. Its purpose is to propose amendments which requires 2/3’s of states to vote for passage and then to be considered for ratification by 3/4’s of all states.

[nathanbedford]

You are absolutely correct, the arithmetic cuts both ways, although more in favor of conservatives but only moderately so. That means that we are at a stalemate situation as far as Article Vis concerned but that means that the left prevails as long as the situation is static because they control the electoral process, the judiciary, the media etc. If our politics proceed as they have, we will drift ever more to the left, ever deeper in debt, ever weaker abroad, ever more divided at home.

The whole idea ofArticle V is to move the game to a new board where the rules favor conservatives more and that new game will occur in the state legislatures. But to break the deadlock we will need some sort of a "Black Swan" event to energize the electorate and breakthrough the inertia which we unfortunately read on these boards even from conservatives and to overcome leftist minority in state legislatures.

As I said in another post, luck goes to the prepared and we have very good reason to believe that some sort of a reckoning cannot be long delayed. While Nathan Bedford's Maxim, "failed socialism does not result in reform but in more socialism," is often true it is also possible that the country will react in common sense against what has been done to us and actually turn toward conservative reforms.

All we can do is try. If we do not try, what will we tell our kids as they survey the wreckage of their country?

[Sherman Logan]

I agree with the severity of the problem. I disagree strongly that there is some sort of political maneuver that can fix it.

In fact, I think the fixed idea conservatives have that such issues are at root a political question is our biggest problem.

A democratic system such as ours is intended to give the people what they want. In the long run, they will get it.

Therefore the BIG issue, by which are others are miniscule, is what the people want. Influencing THAT, in the long run, is what determines where our society is headed.

What people want is simply not affected much by the political process. It is determined culturally, especially in popular culture.

Unfortunately, conservatives have for at least 40 years abandoned the cultural battleground, leaving it to liberals/leftists/progressives. Not surprisingly, if you don’t fight you can’t win.

The political mess we are now in is the result of that 40+ years of not fighting back. That it has taken so long for this mess to evolve is a measure of how strong our cultural capital used to be. But it’s pretty much gone at this point.

To my mind, there simply is no “political” fix at this point. The battle can only be fought and eventually won on the cultural level. As the late, great Breitbart said, “Politics is downstream of culture.”

Unless and until the American people desire to remodel the Constitution in a conservative direction, calling a con-con to do so simply cannot have any positive effects, though it certainly could have negative ones.

[precisionshootist]

Yes it's a horrible idea. Those framers of our Constitution sure were a bunch idiots! What were they thinking!

/s

[nathanbedford]

I don't think we have much to disagree about. We both say the culture trumps politics and therefore a political fix is not the panacea.

I do not advance Article V as a fix but as an opportunistic tool which has a chance of passage only with a cataclysmic event of some sort which alters the politics for a season. The passage of such amendments will temporarily change how the political game is played and that is to the advantage of conservatives but the secular drift cannot long be frustrated by a political fix. A fix, even a temporary fix, is not to be despised if we recall that the original Constitution spared a civil war for only 80 years.

We do not disagree for one second that conservatives have quit the battlefield in the culture wars. They fight the wrong fights the wrong way in my view. But even more important, the institutions which wage those wars have been utterly relinquished to the left and so when conservatives engage in the political theater it is already too late.

However it is not entirely clear how center-left the country is as opposed to center-right. We know that when it comes to breaking the middle-class Rice bowl, such as touching Social Security, there is a third rail. Americans want their Social Security but they also say they want balanced budgets. On the other hand, "social issues" like homosexuality are not so clear. We ought not to forget that there are consistent polls that show a plurality if not a majority of Americans regard themselves to be conservative-if they even know what that means.

So it may be to some degree that the electorate is instinctively center-right on many issues but expresses itself at the polls in a centerleft vote because of the influence of the media, academia, and other institutions. This might just be wishful thinking on my part and the part of people like Ronald Reagan who voiced that opinion but who also made it prove out at the polls. The fact remains, however, that every election seems to make our situation more detached from the cultural drift of the country. Beyond the institutions which shape the culture, there is the matter of runaway immigration which certainly distorts everything.

It is from this line of thinking that we hear pundits tell us that it is not the conservative message that is wrong but the messenger. Of course, they point to Ronald Reagan as the kind of messenger needed to sell the conservative message. I am inclined to agree more with you, that every generation makes the conservative message a harder sell as the culture shifts beneath our feet.

In this context, I often try to identify on these threads where the tentacles of The Frankfurt School have insinuated themselves into the culture and perverted it.

The arithmetic of 13 legislatures out of 99, a majority of which are Republican, leads me to our only disagreement. I see no realistic downside risk in an Article V convention. If the nation is at such a risk, our problem will not be the nature of the document, that only counts to conservatives, it will be the reaction, whether left dominated all right dominated, to the global event which triggers the process. If the reaction is leftist, the constitutional changes will not be the cause of our problem but merely the present constitutional charade made explicit.

[Sherman Logan]

I’ll buy that.

I was perhaps projecting onto you views others have expressed. The notion that America is still the country it was in the 80s. Well, it isn’t and it won’t return to that without great effort.

We’ve been living off our cultural capital for at least 40 years, but that well is just about dry.

[Sherman Logan]

Not a particularly popular POV, but the first Amendment I’d like to see passed would be on making it somewhat easier to pass future amendments.

One significant reason, IMO, that the Constitution gets ignored is that very real needs cannot be addressed without an amendment, but such an amendment cannot be passed because it’s just too hard.

I think if amendments were somewhat easier to pass, it would make insisting people stick to the Constitution as amended easier.

[Dajjal]

ConCon bump