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.

[nathanbedford]

So far it seems to me that opposition to Article V boils down to about four objections:

1. It won't work -so don't bother trying.

2. It won't work, even if it does work, because "they" will undo it, ignore it, or somehow overrule it, so don't bother trying.

3. It will work, but don't try it because it will work only for the other side.

4. No opinion on whether it will work or will not work, but the Constitution we have is just fine so the solution offered by the Constitution itself in Article V should be ignored in favor of redoubling our efforts and doing more of the same every election cycle because this time we will get different results.

Which category are you in?

[dynachrome]

Enforce the one we have. (how to go about it, I dunno. A long slog)

[ctdonath2]

And those state legislators were elected by the same populace that put a raging Leftist Muslim in the White House.

[Perdogg]

You don't really understand the process. State legislators must have an agenda prior to a convention agreed by 2/3 of the states.

[nathanbedford]

Enforce the one we have. (how to go about it, I dunno. A long slog)

Although I think you should get points for rare candor on the subject, I nevertheless place you in category 4:

No opinion on whether it will work or will not work, but the Constitution we have is just fine so don't try the solution offered by the Constitution itself in Article V should be ignored in favor of redoubling our efforts and doing more of the same every election cycle because this time we will get different results.

[Smokin' Joe]

5: None of the above.

Go for it, please repeal the 16th and 17th amendments!

Don't let it get hijacked, by the IslamoCommunistLiberal set.

Heck, I'll even chip in some gas money.

Realistically, it'd be nice to have some more charges to read off when the time comes.

[familyop]

Those who want a constitutional convention are state and local government employees, politicians and other government-linked crooks, who want to take over the federal government and shovel unlimited pork to themselves while intensifying their police state tactics. They aren't satisfied with having already outlawed most productive activities and freedoms with regulations, fees and outright robberies. They are public corruption.

Heavy Hitters: Top All-Time Donors, 1989-2014
http://www.opensecrets.org/orgs/list.php
American Fedn of State, County & Municipal Employees $60,949,129 [Democrat] 81% [Republican] 1%”

Leviathan (Uncle Sam employs more people than you think)
National Review ^ | 02/03/2011 | Iain Murray
"...nearly 40 million Americans employed in some way by government."

[E. Pluribus Unum]

An Article 5 convention of states is NOT a "con-con," to use the cool low-information type acronym.

An Article 5 convention is for the sole purpose of proposing amendments to the constitution.

No rewrite of the constitution is possible, but let's not let reality stand in the way of the hysterics.

[INVAR]

Everyone please re-read what Smokin' Joe posted here, because it contains wisdom and the entire crux of the argument.

For instance, what makes anyone think an administration accountable only to itself will heed any changes to a document it already ignores, even if the convention isn't hijacked and the Amendments are heeded.

What are you going to add to statements like "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated...", like "...shall not be infringed."

Aside from sprinkling it with a few expletives for emphasis, what are you going to do?

When the entire raison d'etre of the Government en masse has become that of subverting the constraining documents of Government and perverting the allocations of and restrictions on power, how do you make them pay attention to their duty?

Is there any peaceful way to do this within the system?

They ignored a million marchers from the TEA party, "non-event".

They laughed at those who questioned the credentials of the one in the White House.

They have used Federal Agencies and abused Federal Power to attack those who disagree with them.

They have, in violation of our laws, armed foreign insurgents who have for profit and in criminal enterprise turned those arms against our own people.

They have failed to secure our borders and the persons of our ambassadors overseas.

They have taken direct action to damage the morale and effectiveness of our fighting forces and given aid and comfort to the enemy in time of war.

What does it take to hold them to account?

The simpering mavens of Congress have also failed in their oaths to protect and defend the Constitution.

But do you seriously think any new Amendments to the Constitution are going to give them pause?

Truly.

How do the proponents of Article V propose to get a post-Constitutional oligarchy to abide by additions to a document it already ignores?

How do proponents of Article V propose to counter nullification of any ratified Amendments by an activist judiciary acting on behalf of the oligarchy?

How do they propose to counter executive actions or 'legislative' actions that make it policy to ignore and disregard amendments the oligarchy disagrees with?

Levin is correct - we are in a post-constitutional system. We are being ruled by the lawless who are a law unto themselves alone. How does even he expect such a perverted and lawless system to allow these proposed additional yokes be placed upon itself without the use or threat of brutal force?

A government in the process of destroying the civil society is NOT going to allow civil recourse to restrain their agenda. Fact of history and human nature.

How do the Amendment V proponents plan to address that issue so that we can believe their efforts will not be in vain?

[nathanbedford]

BRAVO!

[Art in Idaho]

The federal government is broken. Our only Constitutional redress is Article V and a Convention of States. Is it risky? Possibly, but to do nothing is derelict. "All that is necessary for the triumph of evil is that good men do nothing." - Edmund Burke.

Research links on the Article V process and the Liberty Amendments:

Convention of States - Alabama Way to go Alabama! A good introduction.

'Convention of states' to rein in government? Another great summary explanation.

The Case for an Article V. Convention. Fantastic explanation of Article V convention to the Mass State Legislature.

I would recommend watching the above three videos first and then:

Convention of States Lots of information here.

Article V Project to Restore Liberty Another good source.

A Summary of Mark Levin’s Proposed Amendments by Jacquerie

Chapter 1 of Mark Levin’s Book, The Liberty Amendments

Mark Levin, Constitution Article V, and the Liberty Amendments

Rep. Bill Taylor introduces a Convention of States

Citizens for Self Governance: Convention of States Project – a hub of 15 youtube videos on the Convention of States

Mark Levin Article V, Liberty Amendments youtube video hub

Three hour video of C-Span interview with Mark Levin

Amendments Convention Links

Gaining Steam? Nearly 100 Lawmakers Descend on Mount Vernon to Talk Convention of States The beginning.

Convention to Propose Amendments to the United States Constitution

The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process

Friends of Article V Convention Links

Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment by Jay Bybee. Repeal the 17th!

Article V Convention: Path of Least Resistance by Robert Berry

The Final Constitutional Option

Article V Handbook - for State Legislators An important resource.

State Legislators Article V Caucus State Legislators, Join up at this site!

Send this list of links to your State Representatives and Senators here: Contact your State Legislators.

Sample Letter to state Representatives regarding the Convention of States Project and also, Talking Points. Both from Here.

Excellent Article V Letter to a State Assemblyman by Jacquerie

Let’s all work together to get this going.

We owe it to The Founders and ourselves to attempt a rational Article V amendment process. Congress is not going to propose liberty amendments. If the Article V Convention of States doesn't work, or is hijacked, then fine, it's on to what we're all expecting anyway, revolution. It's your call America.

[INVAR]

So far it seems to me that opposition to Article V boils down to about four objections: 1. It won't work -so don't bother trying. 2. It won't work, even if it does work, because "they" will undo it, ignore it, or somehow overrule it, so don't bother trying. 3. It will work, but don't try it because it will work only for the other side. 4. No opinion on whether it will work or will not work, but the Constitution we have is just fine so the solution offered by the Constitution itself in Article V should be ignored in favor of redoubling our efforts and doing more of the same every election cycle because this time we will get different results. Which category are you in?

Category 5 - HOW DO YOU PLAN TO GET YOUR AMENDMENTS TO WORK

That would be the category that says - If you are going to attempt it - explain to us how you are going to get a lawless post-Constitutional oligarchy to abide by new amendments to a document that has been already nullified, usurped, defied via precedent and rewritten by executive 'action'?

If you want to win support for the process and the cause, explain to us how you intend to get a lawless government to abide by them so the effort is not in vain.

[kvanbrunt2]

I agree. no law can bring the lawless to respect it. Nuke em.

[Lurker]

“but it is a way to control a strong central gov’t that isn’t obeying the Constitution.”

If they’re not obeying it now what makes anyone think that adding a few more words to it will make them change their behavior?

L

[kvanbrunt2]

nuke em Rico

[Lurker]

“What do you propose to ensure its implementation?”

Go read Amendment II.

[INVAR]

We owe it to The Founders and ourselves to attempt a rational Article V amendment process. Congress is not going to propose liberty amendments. If the Article V Convention of States doesn't work, or is hijacked, then fine, it's on to what we're all expecting anyway, revolution. It's your call America.

Please explain to us, what is the plan to get an IRRATIONAL, lawless, post-Constitutional government to abide by the Liberty Amendments (and the existing Constitution for that matter) if ratified via civil means?

If we agree the current government system is lawless, destroying the civil society and is post-Constitutional - and if we agree that this Article V process is the last civil chance we have at restraining an out-of-control oligarchy, how do you propose to get that system to abide by further yokes, when it has dismantled and ignored the ones already codified in the Supreme Law of the Land?

What is the plan for that? Or are you just focused on the exercise for the sake of saying 'we tried'?

If you want to get more Americans on board for the effort and the cause, explain how you intend to get a neo-dictatorial tyranny that has ignored the rule of law to adhere to what is passed in new additions to the rule of law so our support of the effort is not in vain.

Personally, I'm of the opinion that the effort at this stage will end up no different than the Olive Branch Petition if there is no plan to effect it's implementation upon the lawless who now rule us.

[jaydee770]

Given examples such as Wickard v. Filburn, we could argue that the constitution is not being followed — and even go further and claim it is being outright abused.

I think Wickard v. Filburn is downright bull-butter and the original intent would preclude that decision. But then the relevant section involved merely reads, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. That simple wording apparently left the court with all the wiggle-room it needed.

I think we would need a constitution worded with the complexity of the fine print on a cell phone contract to remove any wiggle-room the courts could use to pervert original intent.

If not a Con-Con, then how do we “undo” the decades of federal over-reach? All of the federal code that is unconstitutional would need to be stricken; all of the federal offices, depts, etc that are unconstitutional would need to be eliminated.

Someone smarter than me would need to come up with a single amendment that serves as a reset button.

[nathanbedford]

I am understandably having problems grappling with your position. In another reply on another thread when flatly asked for your position on Article V you replied in capital letters:

DO IT

Which you followed with many of the concerns you expressed about the ability to have the new constitutional amendments honored in the teeth of a tyrannical government. You suggest that this is a new category but you are dealing with a new concept. My categories have to do with objections to attempting an Article V process. If you believe that it will not be honored then you need a new category which says "don't try it, it won't be honored" but you are on record as saying, "DO IT" but it won't be honored.

The degree to which it will be honored or dishonored depends on a variety of factors only one of which is the intransigence of the elites presently in power. Other factors include the degree and intensity of public support. We do not know and cannot know in advance how a post constitutional reform will play out in practical politics.

But we can "do it" and say to our children, "at least we tried."

[INVAR]

Go read Amendment II.

I expect that might be a foundational reason for the stockpiling of billions of rounds of ammunition and the 'gifting' of military hardware such as MRAPs strategically being placed around the country by the Oligarchy.

I do not believe those in power fear We The People. I think they despise and loathe us with utter contempt. They do not believe we have the resolve or stomach to do what would be needed to stop them.

Which is funny because I think that is the same thinking ISIS, Putin and the Chicoms have of America itself.