Article V – Saving the Constitution (2018)

Among the shortcomings of the Articles of Confederation was the near impossibility of amending them to meet pressing needs regarding taxation and commerce. In 1787-1788, the lower threshold to amend the Constitution per Article V overcame Anti-Federalist reluctance to form a new Union.

From the time the federal convention sent the draft Constitution to the Confederation Congress and states, many Anti-Federalists demanded a second convention, preferably before federal elections and the establishment of a new government.

Not only the Anti-Federalists, but few Federalists were entirely satisfied with the Constitution as written. The difference was that Federalists were satisfied that Article V was there to correct the Constitution’s shortcomings. Among the Anti-Federalists were “fence-sitters,” those who would change their minds if they felt assured of a few amendments that better secured certain rights. Flip the votes of fence-sitters and ratification was certain.

Despite ratification by the ninth state, New Hampshire, on June 21st 1788, the future of the new government still depended on the decisions of Virginia, New York, and Pennsylvania. Yes, a new government could form without them, but what were the chances of national survival if the remaining states VA, NY, PA, NC, RI did not join and left a geographically dismembered Union in their wake?1

Pennsylvania. In a shady process that only stoked resentment, Federalists rammed ratification through on December 12th 1787.2 On July 3rd 1788, several leading men sought to “un-ratify” PA ratification unless certain pre-amendments found their way into the Constitution.

Disgust with the heavy-handed tactics of Pennsylvania Federalists back in December led Cumberland county officials to send out a circular letter to various societies, individuals, and other counties that opposed unqualified, unamended ratification. The letter explained that the new government would start with all its “foreseen and consequent dangers” still in place. Either the states act together to get amendments or there was no telling what turn American liberty will take at the discretion of Congress. Townships were asked to send representatives to county meetings that would send delegates to a general conference of the counties in Harrisburg on September 3rd to devise amendments.

Fortunately, passions cooled by September, and the Harrisburg meeting recommended considerable amendments while at the same time it accepted the “general system of government framed by the late federal convention,” and “in full confidence that the same will be revised without delay.” Specifically, delegates asked for a speedy revision through an Article V general convention. They petitioned the Pennsylvania legislature to urge the first congress at the first opportunity to call a “general convention of (delegates) from the several states on the Union.”

In what began as something of an uprising against ratification ended in willingness to implement the new government and work within the new order. Pennsylvania would remain in the Union and press for amendments via Article V in the first congress.

Virginia. The Federalists’ strategy of recommending amendments through Article V to flip the fence-sitters originated in Massachusetts, which ratified on February 6th 1788. In June, New Hampshire modeled nine of its amendments on those of Massachusetts. Virginia Federalists likewise employed this strategy in a victory over the Anti-Federalist contingent dominated by the incomparable Patrick Henry. Thanks to Federalist’ promises to press for Article V amendments in the first congress, Virginia ratified the Constitution by a surprising 57 – 47 margin on June 25th 1788.

After ratification, the convention formed two committees. The first committee, composed entirely of Federalists, drafted a form of ratification. Imperfections in the Constitution should, it read, “be examined in the mode prescribed therein,” rather than endanger the Union by delaying elections with the hope of getting amendments first. The second committee, while dominated by Federalists, reported a slate of amendments which mirrored the Virginia Bill of Rights. The convention overwhelmingly passed both reports.

New York. Federal and Anti-Federal heavy hitters dominated the wild month-long ratification convention in New York. Alexander Hamilton, Melancton Smith, Robert Yates, and John Lansing among others were hardly wallflowers.3 Had ten states not already ratified, unqualified ratification was doubtful. In a twist on the other states request for post-ratification amendments, New York delegates considered post-ratification amendments, which, if not incorporated into the Constitution, New York reserved the right to secede from the Union!

But, the existing Confederation Congress might not accept a qualified ratification, which meant disunion and independence. Reluctantly, and only out of a sense of dread at their Hobson’s choice did Melancton Smith lead the way for Anti-Federals to cease their opposition to unqualified ratification.

As in other states, Article V figured bigly in the New York form of ratification and uneasiness with the Constitution as written. As a consequence, New York issued a circular letter to their sister states at the close of the convention on July 26th 1788. It called for an Article V general convention in the “full confidence” their suggested amendments would receive an “early and mature consideration.” The convention also asked its state reps and future congressmen and senators in the upcoming new congress in 1789 to exert all their influence and use “all reasonable means” to secure ratification of its 32 recommended amendments.

New York’s circular letter admitted that circumstances had boxed the state into a corner. Under duress, New York had to decide Union or disunion. It emphasized that New York was not alone, and that only an Article V general convention could “allay their apprehensions and discontents.” Article V action must be one of Congress’ first tasks.

The stupidity of those who INSIST on bawling out about “opening up the Constitution” and screeching out their utterly irrational (and PROFOUNDLY ignorant) fears of some cabal “re writing” the consitution if we dare to follow its own prescriptions for amending it... that is just a wonder to me.

These people remind me of the Area 51 nutcases, or the clowns howling about hospital ships in NYC receiving abused children from vast underground tunnels where they had been tortured and killed for adrenochrome. When you try to engage rationally with them, they just get wall eyed and blubber about “THE CHILDREN!! THE POOR CHILDREN!!!”

So it is with the terrified little Chicken Littles on this topic. When you try to show them the RULES FOR CONVENTION OF STATES FOR AMENDING THE CONSTITUTION, their eyes roll back in their head and they sit in a corner maniacally repeating “runaway convention, runaway convention, runaway convention” like some real life Monty Python echo of monks chanting and hitting themselves in the head. It is like the switch for reason and rationality gets shut off and they just pound their fist on the table like Luther HOC EST ENIM CORPUS MEUM.

Really a bizarro thing. The MOST weird thing is that these folk almost always respond with some version of “we don’t need to CHANGE the Constitutiion, we need to FOLLOW it” and I am stuck with the thought... “you don’t want to follow it at all. You want to follow the parts of it that you feel ‘safe’ about but you do NOT wish to follow it, as the Consitution itself prescribes a convention of states as of of TWO ways to amend it.” So, do not imagine yourselves as being “Constitutional Loyalists” as you clearly are not.

I know of no other way to say this: YOU ARE NOT LOYAL TO THE CONSITUTION. No matter what you SAY, you are not.

If you were, you would be loyal to ALL of it, including Article V, which states clearly, unequivocally and emphatically that there are TWO ways to amend the document. One is for Congress to propose amendments, vote, get a majority, send it to the states, get a specified majority, and write it in. THE OTHER WAY, CLEARLY AND UNAMBIGUOUSLY STATED, is for the states to propose a convention with the express purpose of proposing SPECIFIC AMENDMENTS and then those going back to the states, and having received a specified percentage majority, to be adopted. Again, if you are loyal to the Constitution itself, you must be loyal to the specified enumerated methods for amending it. Otherwise, you are no different than some leftist who says he like the Constitution, but won’t support 2A.

John Birch, through the NEW AMERICAN and the Schlafly-ites (and Common Cause, on the left) have done a great deal of disingenuous harm by conjuring up images of a vague, unspecified “convention” where the delegates are pulled together by the states and just sent with no specific instructions other than a vague “propose some amendments.” This is false, and ignores the fact that 32 state conventions had recently been called, and there was a common understanding that the COMMON LAW RULES FOR STATE CONVENTIONS WERE BINDING. Number one on that list is that delegates received delegated power from the states to act on the issues mandated... nothing more. Further, if a delegate were to ignore the mandate of the state legislature which sent him, his delegation could be revoked and him recalled and replaced.

The cited article lists the historical fact that the inability of the states to AMEND the articles of confederation was one of the reasons for the Constitution in the first place, and there was a movement among states to call a second convention if means to amend the first one were not included. In fact VA, NY, PA, NC, RI refused to sign and adopt the constitution UNLESS provisions for amendment were included.

So the framers in a typical framers way of dividing power, came up with TWO equal and effective ways of amending the law of the land. One rested in the elected federal legislature... AND ONE RESTED IN THE STATES. The latter stated that an amendment could be proposed by enough states (a percentage, not absolute count), and Congress (through whom all law originates) was bound by force of law to call (though it had precisely ZERO oversight authority) a convention for the states to present their amendment. At that point in time, the proposed amendment went back to the original states JUST AS IF CONGRESS HAD PROPOSED IT. This was an amazingly bright, prescient and insightful way of guarding against what we have now, which is a federal tyranny where an imperial city in DC (Philadelphia, then) makes law for the benefit of itself, and uses a corrupt federal network to enforce it. It is a way for states to wrest power back from the federal.... AND THE FOUNDERS OF THE CONSTITUTION PUT IT IN THERE AS A WAY TO PROTECT US. Amendment V was written in SPECIFICALLY as an antidote to federal power, and if you paid any attention at all to it, you would see that it is brilliant. It is the only reason why VA, NY, NC and RI signed (PA signed but there were shenanigans and deception so that they signed before Article V... long story there).

Note that it did NOT make a way to call a willy nilly convention where the states appointed delegates and said “well, just come up with something that will be good for us... it would be nice for you to pay attention to the Constitution, but hey, that is so 200 years or more old we are not that worried about it.” Note that also it did NOTmake a way for a “runaway convention” ( a truly absurd idea, not matter what your paranoid fears say) where they ostensibly meet for one objective and then morph into something entirely different. THERE IS NO SUCH PATH TO A “CONSTITIONAL CONVENTION WHERE THE WHOLE SHEBANG IS UP FOR GRABS. That would have been a stupidity on the part of the framers on a level with them standing in the street all claiming to be stalks of broccoli. This was dividing the power and authority to amend the Constitution to the states, as well as federal legislatures.

So, there’s the history. Before you gripe and bellyache and whine and moan about the corrupt federal government, be aware that you have a SPECIFIC REMEDY written into the Constitution to allow states to unite AGAINST the power grab of the fed to take it away from you. The framers gave you a remedy. It is sitting there, unused, ignored, and useless for the very purpose which would prevent the current collapse of the republic.... because you believe a pile of crap from people who are either ignorant or dishonest about hysterical nonsense about “opening up the Constitution for a rewrite” and “but what if THIS happens.” It is fine to have these concerns. It is irresponsible to sit down in the midst of paranoid fears and ignore the patient, painstaking, detailed and deliberate explanations of why an Article V convention simply CANNOT be “derailed” like its detractors claim.

So, here we are. You SAY you are “loyal to the Constitution” but what you MEAN is that you are loyal to SOME of it, but choose to ignore the parts that scare you (and that fear is in fact groundless). As a result, you hold to the TERRIBLY IGNORANT position that the greatest loyalty to good citizenry you can have is to VOTE every four years. In doing so, you ignore what is possiblly the last, most effective and the CONSTITUTIONALLY PRESCRIBED method to combat this very issue,

The MOST weird thing is that these folk almost always respond with some version of “we don’t need to CHANGE the Constitutiion, we need to FOLLOW it” and I am stuck with the thought... “you don’t want to follow it at all. You want to follow the parts of it that you feel ‘safe’ about but you do NOT wish to follow it, as the Consitution itself prescribes a convention of states as of of TWO ways to amend it.” So, do not imagine yourselves as being “Constitutional Loyalists” as you clearly are not.

Your method (voting, hoping for better people and whining about corruption) guarantees that the best method for redress of this issue will be gone, and the only method left to deal with it will be a revolution (likely a bloody one).

So, are you really loyal to the Constitution, or just the parts you like?

As the post relates, Article V of the yet-to-be-ratified Constitution saved the Constitution.

A contingent among those who oppose an Article V state convention to propose Constitutional amendments declare that all that need be done is just enforce the Constitution we have.

To enforce the Constitution we have, we must first render it enforceable.

In the Article V opponent's perfect world of cuddly puppies and chocolate rivers, we should simply elect the secular saints in our midst. At least a few are around, right? The problem is far less about a shortage of virtuous people and far more about the slow, imperceptible corruption of our institutions, beginning with the Senate in 1913.

To Article V opponents, I say get over it; no free republic ever did and ever will rely on holy politicians. For once, I’d like to hear a prominent Article V opponent, say Publius Huldah, The John Birch Society or Eagle Forum refute James Madison’s observation in Federalist 51, “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Madison’s observation wasn’t conjecture; it wasn’t complex philosophy or distant history; it was recent history and current events. Given the abuses by George III, the first State governments were understandably democratic, too democratic in that they relied far too much on public virtue. When the States closed the front door to executive tyranny, they left the back door open to majoritarian tyranny. The mythical era to which Article V opponents attach oodles of public virtue never existed outside of their imaginations.

Rather than assume a society of private and public virtue, the Constitution counted on a government of public rogues.

To Enforce the Constitution we Have.

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