Auburn AL– My remarks on the case for calling an Article V Amendment Convention and the historical case supporting it. Presented to the Austrian Scholars Conference at the Ludwig von Mises Institute, Auburn AL, 10 March, 2010.
Call Of Duty-Article V
Presented by Mike Church, March 10, 2012
Greetings and welcome to this conference on calling for an Article V Amendment Convention. In my brief remarks I will lay out the broad narrative for why an Article V convention is legal, necessary and indeed was inserted in the Constitution to provide a safeguard against usurpations, we are about 230 late to the Call of Duty but as the saying goes, better late than never. First, a little history lesson is in order so we may address the critics of Article V who claim that the article was not ever intended to be used for a State called convention. On the afternoon of 12, September, 1787 each delegate to the Federal Convention, meeting under a cloak of secrecy in Philadelphia’s Independence Hall, was issued a draft copy of what would soon be known as the U.S. Constitution. There aren’t many records about this event that we can scrutinize other than copies of the draft that actually survive to this day, one of those surviving copies belonged to VA delegate George Mason.
Mason was called “the wisest man of his generation” by young Thomas Jefferson. Mason is best known for being a leading voice for Virginia’s Independence and for authoring the framework of VA’s 1776 Declaration of Rights. Mason had also helped draft the “Fairfax Resolves” which appeared in August of 1774, the Resolves laid out the Virginians, indeed the rights that all British Americans were trying to reclaim from the overbearing central authority of Parliament and King George III so Mason’s aversion to central authority was well known.
To put that into context for today, Mason would have been as likely to propose and support centralizing power as a member of todays Congress would to propose and vote for a balanced budget.
Mason had offered many objections during the Great Convention but had become increasingly concerned over the seeming rigidity of the General Government that the New Constitution would create. Mason had urged over and over again that a second convention must and would be called for once the states learned what the current convention had produced. He also insisted that the States must have the ability to amend the Constitution before even contemplating its ratification.As we will see, Masons fear of what was being done in Philadelphia was so acute that he would participate in meetings outside of the conventions meeting place, Independence Hall.
After receiving his copy of the draft Constitution on 12 September, 1787, Mason began reviewing the work and there was much that he did not approve of. Among other valid complaints he noted that the Article I Section 8 powers were weak and ill defined. He accurately predicted what Congress would become at what price to commerce and trade noting [I]t is at present impossible to foresee whetherthis government in matters of commercewill produce a monarchy, or a corrupt, tyrannical [oppressive] aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.
Mason then set his sights and professorial skills on the Constitutions Fifth Article which on that evening, written in Gouverneur Morriss hand read.
Art V. “The Congress. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been rati?ed by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of rati?cation may be proposed by the Congress. Provided that no amendment which may be made prior to the year 1808 shall in any manner affect the 1st & 4th clauses in the 9th section of Article I.”
You can just imagine George Mason, the author of VAs Declaration of rights and a leader in the push to break from a central authority that was not permitting the Colonys governments to amend their own charters, reading what seemed to him like a near copy of the centralized government of Great Britain. The same man who inspired the instructive parts of the Declaration of Independences preamble in VAs Declaration of rights whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal***. Jeffersons Declaration text was only slightly different, reading But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.
Back to Mason and the problems he had with It. In the margin of his copy, next to the citation for Article V he wrote: “Article 5th By this article Congress only have the power of proposing amendments at any future time to this constitution and should it prove ever so oppressive, the whole people of America can’t make, or even propose alterations to it; a doctrine utterly subversive of the fundamental principles of the rights and liberties of the people.” In all Mason recorded objections he had to 17 clause or Articles of the Constitution, these concerns led him to refuse to sign the document on 17 September but satisfied that he had recorded his objections for posterity to review and judge, he put his pen away and retired for the evening.
When the convention reconvened the next day Mason began lodging his complaints, clause by clause, biding his time until debate got busy marking up Article V. Before Mason could stand yet again this day and oppose the current language of Article V he would have to wait until his friend Ellbridge Gerry of MA took a swipe at the clause. From James Madisons notes this is what transpired.
Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.
Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the ?rst immediately, and in the second, ultimately. on Congress; no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.
Of course James Madison being James Madison he couldnt imagine that the majestic federal government which he was designing wouldnt be up to any task that was thrown its way like maybe amending so the idea of a central bank could be done away with. Madisons notes continued. Mr. Governeur Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of ? of the Sts Mr Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a call a Convention on the
like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that dificulties might arise as to the form, the quorum which in Constitutional regulations ought to be as much as possible avoided. The motion of Mr. Govr Morris and Mr. Gerry was agreed to nem: con meaning that there was no objection, imagine if todays Congress committees could agree unanimously on anything?
These were the last words spoken by Colonel Mason during the convention other than rising to announce that we would not affix his signature to what he viewed as a flawed document, written in secret without the knowledge of the people or the political bodies that had called for the amendment convention to be held to begin with. Mason was not alone in this concern because in late August before the just described events, Mason, Ellbridge Gerry and delegates from GA, CT, NJ, DE, SC and Marylands Luther Martin had met outside the convention privately to try and reign in the very work they participating in. Martin said that the meetings sole work was not to aggrandize the great at the expense of the small, but to protect and preserve, if possible, the existence and essential rights of all the states, and the liberty and freedom of their citizens.
The work of these men in the Great Convention did preserve much of those rights but as we know today, not nearly enough to prevent the the faux federalists who would turn nationalists into beginning the 232 year long project to transform the Constitution from what M.E. Bradford called a nomocratic instrument into a teleocratic cudgel that can and is used to give sanction to all things for all people.
Perhaps this is why the one vestige of Mason et als work, the amended Article V of the Constitution remains never having been used by the principal objets of its amended form: the sovereign people of the states. If the Constitution is to ever regain the initiative in the great battle to re-establish its beauty and original form of being a plan of government for the states that enter into the compact with not equal but superior powers, then it will be necessary for the states to call an Article V convention and enter into the labor which must be applied to repair the damage and prevent new usurpations if indeed that is possible. That is our Call of Duty, call the convention, send the men most committed to the cause of our forefathers and pray for the best as an appeal to God in this endeavor may prove to be the last best hope of earth.