The Power of the People vs. "Constitutionality"

Today's question:

Do We-the-People have the right to replace the US constitution?

Friends of the Article V Convention:

There is a group calling itself "Friends of the Article V Convention" [FOAVC] which says no! From their website:

QUOTE [from http://www.foavc.org/]:

The mission of Friends of the Article V Convention is ... to help the public understand the difference between an Article V Convention, which FOAVC fully supports, and a "constitutional convention" that would rethink the entirety of our current Constitution, which FOAVC emphatically does not support.

:UNQUOTE.

Article V and the FOAVC

The FOAVC claims that We-the-People have the right to amend our Constitution but not the right to replace it. As I will make clear in a bit, the Constitution itself allows for its own replacement. But the FOAVC chooses to focus, for what I believe are malevolent purposes, only on Article V, which follows:

QUOTE:

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...

:UNQUOTE.

Point/Counterpoint:

These "Points" are from the FOAVC website, from four consecutive sentences. "Counterpoints" are my comments.

Point:

...a "constitutional convention" -- one that seeks to literally discard, replace and re-write the current Constitution -- is blatantly extra-constitutional.

Counterpoint:

To call something "extra-constitutional" is not the same as calling it "unconstitutional."

Point:

It is neither authorized by our Constitution nor is it sanctioned elsewhere by any federal or state law.

Counterpoint:

How strange! Would it matter if it is "sanctioned elsewhere" if the constitution itself doesn’t authorize it? But of course we don't have to concern ourselves with this "elsewhere" authorization. Why? This is where FOAVC is wrong: Our constitution in fact does authorize a full-blown constitutional convention. I cite three sources for my reasoning:

ONE: Our current document replaced the original constitution (known as the Articles of Confederation) by means of a constitutional convention. Under the terms of the AOC, the Articles could not be altered (that is, amended or changed) without the permission of all of the states. However, our current constitution allowed itself to be established if ratified by only 9 out of the 13 states. In other words, our current constitution is, well, unconstitutional.

TWO: I took a careful look at the Preamble of the constitution: "We the people of the United States, in order to form a more perfect union...do ordain and establish this Constitution for the United States of America." The Articles formed the union and We-the-People had the right to "form a more perfect union." So says the Preamble, which is the constitution's very first sentence. So why shouldn't we have the right to form an even more perfect union now - by means of a new constitution?

THREE: We-the-People had (and still have!) the right (as further reinforced by the Tenth Amendment) to make such a fundamental change (here's the Tenth): "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people [my emphasis added]." My interpretation: We-the-People have the right to "ordain and establish" since these are powers not delegated to the United States.

The Preamble and the Tenth Amendment couldn't be clearer on this point.

Point:

In short, a "constitutional convention" would constitute a quasi-rebellious act if not an outright direct assault on our constitutional republic which, in the view of many constitutional scholars, would violate numerous federal and state laws.

Counterpoint:

Let's start with that first bit of nonsense: "direct assault on our constitutional republic." Such a convention would be an assault on our current constitution but not on the idea that we ought to have a "constitutional republic." [Wasn't our current constitution an "assault" on our first constitution?]

As for any claim that such a Constitutional Convention would "violate numerous federal and state laws," so what? Since the Constitution itself is supposed to be the supreme law of the land (and my point TWO above makes clear that the Constitution gives We-the-People the right to determine our mode of governance), any "federal and state laws" to the contrary would be, well, unconstitutional.

Point:

This is the type of convention that deserves the scorn of the American people.

Counterpoint: Scorn of the American people, eh?

"Scorn" indeed! I suggest FOAVC try this out for size:

Suppose three-fourths* of our citizens wrote the following statement on their federal income tax forms:

"I, the undersigned (being one of We-the-People), hereby demand the creation of a constitutional convention to replace the entire U.S. constitution. If three-fourths* of eligible voters approve of any replacement created by that convention, that would be sufficient to replace our current constitution." [I propose three-fourths*, since that's the fraction of state legislatures needed to ratify amendments.]

Guess what! This majority voice won't be heard. This majority voice will be considered a "quasi-rebellious act." FOAVC, among others, will say, "We've got a direct assault on our constitutional republic on our hands."

If anyone "deserves the scorn of the American people," it would be our leaders for turning a deaf ear to demands for change (as, for example, expressed on our tax forms). And maybe another group is even more deserving of scorn (if we accept FOAVC's logic): Our Founding Fathers! They were arrogant enough to write a constitution which can only be amended but never replaced. In other words, they thought they got it right for all time. They (the dead) wish to impose their will on us (the living).

So what's wrong with our constitution?

The biggest thing "wrong" with it is the notion that it can't be replaced. Do we not have a right of self-determination? If our Founding Fathers were so keen on "No taxation without representation," then surely they wouldn't be so keen on asserting the tyranny of their generation over ours. If our current constitution is so great, why not put it to a vote? Why not subject it to good old American competition in the marketplace of ideas?

Here's a short list of my particular complaints:

ONE: The tyranny of the Two Party monopoly system, not even foreseen by our Founding Fathers, needs to be addressed.

TWO: Here I will cite one of FOAVC's core complaints: Even though Article V of our current constitution states that Congress "shall call a convention for proposing amendments" whenever the legislatures of two-thirds of our states request one, Congress refuses to do so. All 50** state legislatures have requested such a convention, yet Congress is silent. It fails to do its constitutional duty to "call a convention." And the Supreme Court does not rally in response to this outrage. I think we need a constitution which is not so easily ignored.

THREE: Concerning how easily our constitution is ignored, I cite the fact that West Virginia and Maine were unconstitutionally admitted to the union. Article IV, Section 3 is clear: “…New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state…” Realpolitik was at work to create WVa and ME, not the Supreme Law of the Land.

FOUR: Article V also says, "no state, without its consent, shall be deprived of its equal suffrage in the Senate." That would seem to imply that we will always have a Senate (and we will always have states!), and that's an amendment-proof fact of life. Why should that be so?

FIVE: The presidency has become entirely too powerful, an issue which in and of itself has to be addressed.

SIX: The Electoral College must go, since that was meant to restrain (that is, “thwart, if necessary”) the will of the people.

SEVEN: An increasingly exclusive legal system in which he who can't afford proper and long-term legal assistance can't have his day in court. [If you can't "pay to play," you lose by default.]

EIGHT:  Since we have a culture in which the unconstitutional Senate filibuster rule thrives, only a new Constitution can help create the new culture where that can’t happen.

Conclusion

There are groups like FOAVC which are trying to pry loose some power for the people. Or at least, they give that appearance.  I really wanted to give the FOAVC the benefit of the doubt. But I have come to the conclusion that they exist to divert energy and effort away from what is really needed: A full-blown Convention to Replace the US Constitution. They use very strong language in opposition to genuine, overall reform, as evidenced not only by their website but also by two emails FOAVC sent to me.

We-the-People have the right to self-governance. More than that – to a self-governance obtained in a manner of our choosing. We don’t have to be told, by men dead for two hundred years, that we can’t replace their Constitution – ever – that we can only amend it. We don’t need the stooges of the FOAVC channeling those dead men.

If you have any doubts about the real intent of the Founding Fathers, just ask yourself one question: Why did they state, in Article V, that Congress “…on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments..,” but doesn’t say what could or should happen if Congress doesn’t?

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Steven Searle, former candidate for US President (in 2008 and 2012)

“With ‘friends’ like Friends of the Article V Convention, who needs enemies?”

Footnotes:

three-fourths* - I cited "three-fourths" above as a rhetorical device, whereas I personally believe in a much smaller fraction. In the case of the tax forms cited above, 25% would be a fair number to start the ball rolling. As for ratification, 50%+1 of all ballots cast should decide the issue.

 All 50** - The FOAVC makes this claim. However, it should be noted that many of those 50 have rescinded their calls for a convention.

Contact me at bpa_cinc@yahoo.com