The case for an Article V Convention of the States

I am a big fan of Dr. Robert Malone’s Substack newsletter. I am also immensely grateful that he is one among whom I will describe as those “too free to be intimidated.

Very much in keeping with his independence of mind, he re-introduces his readers to the John Birch Society (JBS) and encourages us to reconsider what we believe to be true about them. He does this in the context of calls for an “Article V Convention of the States” (I am going to shorthand this as AVC for convenience sake) to propose amendments to the U.S. Constitution. The JBS is opposed to this, for the reasons articulated in an essay Dr. Malone republishes on his Substack.

I am in favor of an AVC. Here and here I compare the Daniel Shays Rebellion with the January 6 Capitol riots. The original Convention of the States which produced the current Constitution was precipitated largely by the Daniel Shays Rebellion.

After SCOTUS overturned Roe v Wade I revisited the subject where I compare the original Roe v Wade decision (I strongly urge everyone to read it) with Alito’s Dobbs decision. Alito’s analysis pivots on the 14th Amendment’s use of the word “liberty” and discusses the history behind discussions as to what rights are “fundamental to ordered liberty.”

I agree with the JBS in their objections to Congressional delegation of the authority to coin money (to the Federal Reserve). The larger problem, however, is we are no longer in need of a centralized authority, at least when it comes to private legal tender. That clause (Article 1, Section 8, Clause 5) should be repealed entirely and replaced with an authority limited only to public legal tender.

I will not go any further on money other than to note that it cannot be extrapolated out of any discussion which relates to our larger social order; money is the scaffolding of all social order and trust in money is the sine qua non of all other forms of social trust.

Dr. Malone has asked his readers to read the case against an AVC carefully before responding. I have done so. I am going to start by noting that it is not easily apparent at the end where the writing of JBS’ Christian Gomez ends and Dr. Malone picks up. I think the last paragraph of Gomez’s essay is this one:

Simply put, as Justice Scalia warned before a gathering of the Federalist Society, in Morristown, New Jersey, on May 8, 2015, ‘A constitutional convention is a horrible idea,’ adding, ‘This is not a good century to write a constitution.’ Scalia is correct: this is not a good century to write a constitution, nor is it a good century to amend it, especially via a mechanism as risky as an Article V Constitutional Convention.

If this, and the paragraphs above, are Gomez’s writing, this troubles me:

Imagine both political parties attending the same national convention, at the same time, with progressive insiders controlling credentials, rules, issues committees, and voting procedures.

Participants would include not just conservative Republicans, but Democrats, RINOs, socialists, Green New Dealers, Supreme Court packers, gun controllers, police de-funders, big spenders, Roe v. Wade codifiers, teacher unions, Anthony Fauci fans, Electoral College critics, race-obsessed wokesters, social justice warriors, and peaceniks who would balance the federal budget by disbanding the Department of Defense.

What sort of constitution would emerge from delegates who are Anthony Fauci fans, COVID-19 vaxxers, mask mandaters, wokesters, and other progressives and swampy RINOs from the Administrative State? An Article V convention is not the mechanism to take back and rein in our federal government, it’s the principal vehicle to hijack and irrevocably destroy our Republic. Liberty would doubtlessly survive an Article V Constitutional Convention; it would be the first target of the Administrative State seeking to permanently consolidate its current unconstitutional powers.

There are a raft of assumptions being made here, some of which I’ll address in greater detail below. What is most concerning is how, on the one hand, there is an expressed concern for “liberty” (the title of the essay claims the an AVC threatens liberty), little concern seems to have been given to the underlying first principle: The authority to govern arises from the consent of the governed.

The first obligation of a citizen

I draw this conclusion because Gomez seems to presume that such a convention will be dominated by “progressive insiders” without explaining why he believes this. And then he goes on a rampage of “Political Othering” – as if these Political Others are not among the governed. We only have two choices here: Either the authority to govern is embodied in the State as the most significant unit of society, or it arises from the consent of the governed – the individual being the most significant unit of society.

We must take note of an important lesson from history – the first obligation of the citizen in Liberal Democracy (as a tradition of government, not a form – our form of government is a Republic) is granting legitimacy to the ideas we oppose, and to those who advocate for them. The French did not understand this and as a result the French Revolution ended as it did. The Muslim Brotherhood made the same mistake more recently in Egypt – to the same end. If the individual is the most significant unit of society, and authority arises from the consent of governed individuals, we have very hard work in front of us. It requires patience and maturity. Gomez’s Political Othering shows a grave lack of both.

The first obligation of the citizen in Liberal Democracy is granting legitimacy to the ideas they oppose, and to those who advocate for them.

Understanding the real threat to liberty

Gomez wonders “what sort of constitution would emerge from” his Political Others. Beyond seeming to assume that something wholly new would emerge, Gomez is wrong when asserting that an AVC is “…the principal vehicle to hijack and irrevocably destroy our Republic.” John Maynard Keynes, quoting Lenin, located that particular vehicle for us:

Lenin is said to have declared that the best way to destroy the capitalist system was to debauch the currency. By a continuing process of inflation, governments can confiscate, secretly and unobserved, an important part of the wealth of their citizens. By this method they not only confiscate, but they confiscate arbitrarily; and, while the process impoverishes many, it actually enriches some…

Lenin was certainly right. There is no subtler, no surer means of overturning the existing basis of society than to debauch the currency. The process engages all the hidden forces of economic law on the side of destruction, and does it in a manner which not one man in a million is able to diagnose.

It is for this reason an AVC not only does not threaten liberty… it is essential to its defense under our current circumstances. But let’s move on and take up some of the details in Gomez’s argument.

An AVC does not have the power to entirely rewrite the constitution

Instead of organizing this around Gomez’s claims, let’s start with Article V itself:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Gomez claims (I clarify his “In either case” in brackets below):

[Either passed by Congress or by an AVC], the proposed amendments officially become part of the Constitution when “ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.” If a new constitution comes out of the convention, however, it could have its own mode of ratification.

As to ratification, taking the text of Article V in its own context, rather than the context provided by Gomez, it is clear that Congress is limited to two options: “…when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof.” It is not that Gomez’s concern for “…a new constitution [coming] out of the convention” is baseless on its face. But he is presenting his concern not in the context of the history of the first Convention (where it properly belongs) but by stringing it together with text from Article V. This is, at best, unintentionally misleading.

At the calling of the original Convention, we had no uniform tradition of constitutional law. This tradition was born incipiently when the Constitution was ratified, creating the federal judiciary. It was realized in Marbury v Madison (another decision I highly recommend to those interested in seriously engaging on this subject). As heirs of the traditions of English common law, a bedrock principle of law is quoted in this decision from Sir William Blackstone’s Commentaries on the Laws of England. From the decision:

In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.

‘In all other cases,’ he says, ‘it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.’

Because the U.S. Constitution enumerates (not exhaustively, though) rights “fundamental to ordered liberty” (from Alito’s Dobbs decision), and since the validity of laws passed by Congress arises from the consent of “We the people” embodied in the Constitution, there must be a remedy “by suit or action at law” when a prior constitutional right is “invaded” by a subsequent law.

Should “We the people” call into existence an AVC by way of our several state legislatures, this combination of the principles of English common law and our own constitutional jurisprudence circumscribes the outcome of such a convention. Appealing to the failure of the original Convention to remain within the scope of its authorization is essentially a false analogy. The delegates to the original Convention acted outside the scope of authorities vested in them by their States. And yet, upon review of the outcome (our current Constitution), the States could easily have remedied this by refusing to ratify.

We enjoy the same recourse with respect to what comes out of an AVC; our state legislatures can simply refuse to ratify. In our tradition of constitutional law, we enjoy an extra protection not present during the original Convention. If such a convention is called under the auspices of Article V, it will be an Act of Congress which does so. As an Act of Congress, under the auspices of Article V, the outcome is reviewable by the Supreme Court under the principles of English common law as articulated in Marbury v Madison. An AVC simply cannot be an “Article V” proceeding and then turn and act outside of the authorities in Article V. Simply by choosing to call upon Congress to act in this manner admits to both the limitations of Article V and to the jurisdiction of the Supreme Court over the manner in which an AVC conducts its affairs.

Our forefathers did not have the benefit of constitutional jurisprudence integrated into the traditions of English common law. We do not suffer that lack today.

The authority exercised by the original Convention was circumscribed by the States

Gomez strings together ideas from a few sources, and then presents a non sequitur. He essentially conflates sovereignty and authority. If the authority to govern arises from the consent of the governed, then the governed individual is sovereign. To understand this, we have to compare it to the idea of the “Divine Right of Kings.” This was the idea that only God was ultimately sovereign. His authority, then, flowed from above, down through the Pope, who invested it in the Monarch by anointing. Conversely, authority that flows up from the governed sees the individual as sovereign. Authority flows up from the individual by electoral consent to the manner of their common governance.

So it simply does not follow that individual sovereignty means “…the delegates to the 1787 Convention were not legally bound to any limitations on their authority imposed upon them by either the state legislatures or even by Congress Assembled (or Confederation Congress).”

Yes, they were so bound to the limitations issued by their states. But they set aside those limitations as Gomez notes (he actually refutes his own thesis here):

In fact, the delegates outright discarded limitations that were issued by 10 of the 12 authorizing states. And although Rhode Island did not send any delegates, they too reminded the convention delegates of their “limited” authority and that any alterations that they made to the Articles of Confederation would have to be the confirmed (or ratified) by the legislatures of all 13 states, including Rhode Island, in accordance with Article XIII of the Articles of Confederation.

Rhode Island’s point was that no matter what the delegates came up with, it would have to pass unanimous muster of all 13 state legislatures (which it eventually did). The sovereignty of the citizens of the 13 states gave rise to the authority to govern as embodied in each of those states’ governments. That the delegates went beyond their original charters does not change this as each of those state legislatures retained their ultimate authority – again, as granted to them by their citizenry – to scrap the whole project simply by refusing to ratify its outcome.

This conflation of sovereignty with authority flares up again here:

As the sovereign representatives of the people, delegates to an Article V Constitutional Convention possess the full legal authority to entirely scrap the Constitution and the republican system of government it established and to replace it with a new constitution and form of government.

No, delegates to an AVC do not “…possess the full legal authority to entirely scrap the Constitution.” Again, the Philadelphia Convention did not have constitutional jurisprudence integrated with common law to limit or guide it. An AVC is – by definition – limited by Article V.

And it is hard to understand on what basis Gomez says this:

A modern Convention today, under Article V, would not be a “Convention of the States.” Rather, it would be a convention of the people. And as such, the delegates would be within their purview — as the sovereign representative of “We the People” — to reject any state or federal limitations that may be imposed on their actions and to instead proceed upon original principles again to frame an entirely new, modern and likely very socialist-leaning constitution.

This is demonstrably false. There is nothing in Article V prescribing the manner in which an AVC would proceed. What is clear, however (and I think this is the central flaw in Gomez’s reasoning) is that our tradition of common law requires that there be review and remedy for any right that is invaded. Again, the rights enumerated in the Constitution are superior to any Act of Congress. They are also superior to the manner in which delegates to an AVC might otherwise conduct themselves. Such a convention would not be a raw exercise in mob rule as Gomez seems to fear.

Gomez’s argument appeals to authority and conflates political and legal arguments

Gomez quotes a letter from Warren Burger to Phyllis Schlafly – known among conservatives as a wealthy benefactor to political candidates. Quoted by Gomez, Burger says: “After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.” This is clearly a political analysis provided for the benefit of a political activist. There is certainly nothing wrong with considering this… just do not mistake this for a legal argument; it isn’t one.

He does the same thing quoting Barry Goldwater: “I think it would be very foolhardy… to hold a Constitutional Convention… because if we hold a constitutional convention, every group in the country — majority, minority, middle-of-the-road, left, right, up, down — is going to get its two bits in…” This, too, is a political argument, not a legal one. And it represents a bastardization of conservatism as a philosophy to suggest we should not revisit our fundamental political arrangements because people with whom we disagree are “going to get [their] two bits in.”

We see a further bastardization of conservatism in Elaine Donnelly’s quote: “Conservative [AVC] promoters will not control who attends, what issues are discussed, or what constitutional amendments ultimately are approved. The convention will make all decisions and conservatives will not be able to guarantee the outcome.”

She is egregiously wrong on so many levels. She supposes constitutional amendments can be “approved” by such a Convention; they cannot. They can only be forwarded to the states for ratification. The Convention will not make “all decisions” – indeed, they will not have anything to do with the only decision that really matters – whether to ratify or not. But what is most concerning is this view of “conservatism” as a political philosophy and movement that somehow seeks to control things like who attends, what issues are discussed, or what amendments are proposed for forwarding to the states. This is simply not conservatism; it looks more like something which would come out of revolutionary France or a radically Islamic Egypt.

After listening to President Biden’s strident, plainly fascist speech set against an ominous blood-red backdrop with what clearly appeared to be a partisan endorsement of the U.S. military, the stakes could not possibly be higher. Fortunately, we have been here before: The analogy to the Daniel Shays Rebellion is strong. That eruption of civil strife caused our Founding Fathers to seek a remedy which could secure – among other valuable things – “domestic tranquility.” So do our current eruptions call for the same remedy – An Article V Convention to propose amendments to the U.S. Constitution.