Friday, April 25, 2014

Why Not A Constitutional Convention?

I received an email today from a local representative of the Convention of States asking for support for an Article V Constitutional Convention, similar to the one in 1787 that gave us the constitution we now have. After acknowledging our agreement on many things and thanking her for reaching out to us, I told her that her email only reinforced my already firm persuasion that another Constitutional Convention posed a great danger to our country.

An article V convention will have power to revise the constitution. Whether they use that power lawfully or unlawfully, they will change the constitution. That is the problem. Changing the constitution does nothing to restore lawful government. Consider the two possible extreme outcomes: 1. Only "good" changes are made and the constitution is made a better document, or 2) Only bad changes are made and constitution is gutted. If option 1 happens and we get more restrictive statements about what government can and can't do, how will that restore lawful government? If good statements could restrain an out of control government, then the good statements already in the constitution would be doing so. The right to keep and bear arms would not be egregiously violated every time one steps on federal property or buildings. Mass collection of private data would not occur because that violates the 4th amendment. Civil forfeiture would not occur because that violates the 5th amendment. The FDA's egregious predawn raids on family farms would not exist because they have no constitutional authority to regulate what farmers grow or how they sell their milk. The problem is the government is violating the good statements in the constitution. More good statements on a piece of paper won't stop them. On the other hand, the convention poses a huge risk to the constitution if good statements are removed or edited into meaninglessness. Why do something that has huge risk and no benefit?

The one constitutional convention in our history is not a promising precedent. I don’t consider it to have been good or successful for the cause of liberty. It posed a grave threat that was only partially neutralized by a minority of astute delegates who doggedly fought to preserve a federal government and knew enough zoology to identify a rat when they chanced to encounter one.

Why do I say the first convention was dangerous to liberty?

The very thing that advocates say could not happen (i.e. a run-away convention) is what actually happened at the first convention.

The constituting resolution was:

“Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the states, render the federal Constitution adequate to the exigencies of government and the preservation of the Union."

The stated and agreed purpose was to revise the Articles of Confederation. However from the opening volley, it became apparent that the real intention of some was to eradicate a federal government and replace it with a centralized, national government like the European states had.

In rebuting the charge that the convention was illegal, Mr. Farris's article completely misses the point. Whether the convention was legal or not is a straw man argument. The problem is not that the convention acted illegally, the problem is that the convention, legally or illegally, altered the very principle on which our federal government was based.

Consider the following evidence:

In his opening remarks, Governor Randolf proposed 15 resolutions to the delegates as principles on which to base the new government. According to Mr. Yates, “He candidly confessed that they were not intended for a federal government—he meant a strong, consolidated union, in which the idea of states should be nearly annihilated.” (Chief Justice Yate’s minutes, from Tuesday May 29, 1787).

Gouverneur Morris then proposed 3 resolutions:

  1. Resolved, That a union of the states, merely federal, will not accomplish the objects proposed by the Articles of Confederation, namely, common defense, security of liberty, and general welfare.
  2. Resolved, That no treaty or treaties among any of the states, as sovereign, will accomplish or secure their common defense, liberty, or welfare.
  3. Resolved, That a national government ought to be established, consisting of a supreme judicial, legislative, and executive."

Pinckney pointed out that if the first resolution passed, the convention’s business was finished as their task was to revise, not replace the articles of confederation [and change the country from a federal union to a national government] (Chief Justice Yate’s minutes, from Wednesday May 30, 1787). (I wonder if anyone noted the irony in claiming that treaties among sovereign states were inadequate to provide for the common defense when they, as sovereign states bound by informal treaties, had just defeated the greatest empire on the face of the earth.) Thankfully, enough alert members agreed with his point and turned down the first two resolutions. But their opposition didn't change the goals of the delegates seeking a national government nor could they match the nationalist's marketing ability and organizational muscle. As a result, the very people arguing for a federal government are known to history as the Anti-federalists and the people pushing for a national government are known as Federalists.

And thus the convention proceeded and the coup d'├ętat succeeded. The fundamental principle of rule was shifted from a federal to a national government. The one bright spot is that the nationalists were forced to add significant protections in the bill of rights in order to secure passage of the final document. While this preserved a large degree of federalism in our government for a time, the final document retained some significant Trojan horses, such as the commerce and general welfare clause, through which the federal principles in the Bill of Rights have been eviscerated, nullified, and largely ignored. In seeking to prove that the two constitutions are really the same document, Farris notes that the retention of un-delegated powers by the states stayed in the Constitution. While this is true, he fails to note the equally important point that this principle, contained in the bill of rights, was only added after the fact in order to keep the whole document from being rejected. In modern times this federal principle has been so completely subordinated to the national principles of the general welfare and commerce clause so as to be practically meaningless.

Some of the best men of the day were against it, fearing and predicting the very thing that has happened – men like Patrick Henry.

Why should Patrick Henry's opinion be believed over the opinion of other founders who supported the new constitution? He recognized the British intentions for what they were, long before most of his peers in the Virginia House. More than anyone else, he can be credited with moving Virginia to prepare for war. Had other courses of action been followed by Virginia, the effort for independence would have certainly been set back and likely never reached maturity.

Many other people were also against the constitution because it lacked strong guarantees against national tyranny. In reading the Anti-Federalist papers, one can’t help but be struck by how many of their concerns have been realized today.

If this happened to a nation that had just emerged from tyranny, what about today? The general population now is no match for the population of that day, not even close. The government schools have worked their poison deep into our culture. I would fear a constitutional convention if it was comprised of just the republican party of Texas. But in any national convention the republican party of Texas would be on the “radical right,” relatively speaking. The response of Convention of States that “It only takes 13 states to vote “no” to defeat any proposed amendment, and the chances of 38 state legislatures approving a rogue amendment are effectively zero” is wishful thinking at best. The fact is that on many occasions more than 38 states have all approved the same or similarly bad legislation.

For example, abortion is legal in Texas because a pro-life republican legislature amended the homicide section of the penal code (Section 19.06) to allow mothers and doctors to kill their babies (SB319 passed in 2002). In fact this bill exempting doctors and mothers from homicide and assault if they intentionally killed her baby was even billed as a pro-life bill and supported by numerous pro-life agencies! If Roe v. Wade were overturned today, abortion would still be quite legal in Texas and in 43 other states. If 44 states are willing to legalize killing unborn children,how can anyone say with a straight face that the chance of 38 states passing a rogue amendment is effectively zero? Maybe they don't consider legalized murder to be a rogue law. One could multiply examples by the 100’s where most, if not all, states have enacted bad laws. In fact, in one case when the legislature did outlaw the murder of unborn children, the people rescinded the law on a state wide referendum. Our problem is not the Constitution or the Supreme Court’s bad decision. It’s not even the federal Congress. It’s us.

If the problem was Congress, it would have been fixed years ago. It takes only 6 years at most to totally clean Congress. But conservative republicans in Texas continue to vote for people like John Cornyn, who sabotaged Senator’s Cruz’s efforts to defund the Affordable Care Act and voted for cloture, allowing it to come to the Senate floor where it was passed by the Democratic majority. It’s not President Obama that’s the problem, it’s the republicans in Texas who vote for people that support ObamaCare. As many flaws as the constitution has, our problem is not the Constitution, it’s not a run-away federal government or congress, it is the people themselves.

The constitution is only as good as the people who hold it. That’s why Ben Franklin is reputed to have answered Mrs. Powel’s question regarding what type of government the convention had given us with, “A republic, if you can keep it.” The constitution could be perfect and we would still be facing the same problems we face today. Fixing the flaws in the constitution, and there are a number of them, won’t fix our problems. Our freedom is only as strong as the people themselves.

Think of it this way, we have the Bible. It is a perfect document, without error with respect to everything it says. It gives infallible instruction regarding the duties and powers of the civil magistrate. The scriptures were considered the foundation of our founding documents. The Original Constitution of the Colony of New Haven, June 4, 1639 affirmed unanimously that “the scriptures do hold forth a perfect rule for the direction and government of all men in all duties which they are to perform to GOD and men, in families and commonwealth, as well as in matters of the church.” The Massachusetts Body of Liberties (1641) incorporated scripture texts right into the civil law (e.g. Section 94. Capital Laws). Yet even with a perfect document, we’re in a mess today because we don’t follow it. The lesson of history is that even a perfect document can’t preserve liberty.

The reason is simple. Liberty is based on the principle of obedience or duty and exists only as the result of obedience to the law of God. This is why the law of God is called the perfect law of liberty.

  • And I will walk at liberty: for I seek thy precepts. (Psalm 119:45).
  • Now the Lord is that Spirit: and where the Spirit of the Lord is, there is liberty. (2 Corinthians 3:17)
  • But whoso looks into the perfect law of liberty, and continues therein, he being not a forgetful hearer, but a doer of the work, this man shall be blessed in his deed. (James 1:25)
  • So speak, and so do, as they that shall be judged by the law of liberty. (James 2:12)

But we simply cannot keep the law of God. Ultimately, it is the obedience of Christ through which any and all liberty comes. The result of his perfect obedience to the law of God, which includes his death on the cross, is that we are redeemed from bondage to sin and Satan, his righteousness is imputed to us, and his Spirit, dwelling in us, enables us to walk in his precepts. Political liberty is based on and flows from this liberty we have through Christ’s work. That’s why Leviticus 25:10, a Messianic passage pointing toward Christ’s work of redemption, was put on our Liberty bell. Liberty comes from the gospel of Jesus Christ.

Political liberty requires self-government. Self government requires a heart regenerated by the Holy Spirit. It is the result of a man being led by Christ’s Spirit and enabled by his grace to bring his own actions into conformity with God’s law. Without this work which makes self government possible, there can be no liberty.This concept of freedom only through obedience to the law can be seen in many other applications. A train, for example, enjoys freedom to operate as designed only when it is constrained to run on tracks. It is nearly useless and can go nowhere if it seeks to be “free” of the constraint of the tracks.

Freedom is the ability to obey the law of God. Tyranny is inability to obey the law of God. That which helps us to obey the law of God brings freedom, that which hinders our ability to obey the law of God brings tyranny and bondage.

To govern is to direct or control the actions of men. Good government is to do so according to the law of God, bringing freedom. Bad government is to do so arbitrarily, according to the whims of man, bringing tyranny.

The single biggest threat to our liberty is the government school. The most effective means of restoring liberty to his nation would be to eradicate government schools and the massive taxes they consume, not to convene a constitutional convention. If our tyrannical government won't follow the good law that we do have now, why would they respect a new law any more?


Chuck said...

But, given the steady and relentless nature of America's turning from God going back 400 years, isn't it likely that the result of a Con-Con would be at least as good as what we have now?

Unknown said...

revised means rewrite, Einstein. they did exactly what they were supposed to do.

Unknown said...

revised means rewrite, Einstein. they did exactly what they were supposed to do.

Peter Allison said...

Yes Dan. They did what they were supposed to do. That is exactly the problem!

Peter Allison said...

Chuck, I don't think that is likely. I consider it very unlikely that the result would be as good as what we have now. If we just restricted participants to evangelical voters, I am convinced it would not be as good as we have now.

rightside said...

Those of us that see that our leaders do not confine themselves to the constititution now, have an obligation to point this out to others that may not be as politically astute. Most of our representation in Montgomery County are pushing an Article V convention. In a way I think its cover for them being disciplined enough to restrain themselves! If they want the budget cut, cut it. If they want term limits, do not run again, or use your free will to vote out incumbents. Putting laws down on paper isn't going to make them enforce themselves. Our elected officials must do the hard uncomfortable work of applying political pressure to stay within the confines of our constitution, and we must do the same. It may be uncomfortable for us also, but it must be done.