Is the solution to federal tyranny a Con Con?

Rocco J. Piserchia

There are many reasons to reject all calls for an Article 5 amendments convention or a Constitutional Convention (Con Con).  I’ll list four arguments.

1.) There is no way to limit the scope of an Article 5 convention once it begins.  Anyone who claims otherwise is mistaken.  The language of Article 5 does not include any limitations to the number and type of amendments that could be adopted,

“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…”

2.) Consider the implications of how the original federal Constitution was formed – it was illegally adopted.  The Philadelphia meetings that drafted the Constitution were only authorized by Congress to amend the Articles of Confederation but they produced a completely new compact.  “That it be recommended to the States composing the Union that a convention of representatives from the said States respectively be held at on for the purpose of revising the Articles of Confederation and perpetual Union between the United States of America and reporting to the United States in Congress assembled and to the States respectively such alterations and amendments of the said Articles of Confederation as the representatives met in such convention shall judge proper and necessary to render them adequate to the preservation and support of the Union “

The Articles of Confederation also established a perpetual union that could only be dissolved by Congress and the unanimous consent of all the states that ratified it.  Article 13 of the Articles of Confederation reads, “…And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State…”  Only 9 states were required to ratify the Constitution while all 13 were required to abolish the Articles of Confederation.  Furthermore Congress was required to first alter the Articles of Confederation followed by the ratification of 13 states but Congress never consented. “Congress unanimously left the decision to the states, without any recommendation for or against adoption.”

So if an Article 5 convention is convened we should expect the very real possibility that the Constitution would be replaced by a completely different compact.

3.)  It’s beyond unrealistic to think that the current occupants of Congress as well as the current occupants of the 50 state legislatures would consciously choose to limit the power of the federal government and expand the power of the state governments.  Today we have the 10th Amendment, “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.” However no state yet has nullified and interposed against the federal government to completely ban the PPACA  (Patient Protection and Affordable Care Act a.k.a. Obamacare).  If the states refuse to use the Constitutional authority they now have under the 10th Amendment why should they be expected to utilize any new amendments?

4.) The federal government today does not even remotely reflect the federal government as expressed in the Constitution.  In other words the vast majority of all three branches of the federal government refuse to obey the Constitution in its current form – the federal government is no longer legitimate.The President is a de facto dictator.  Congress continually passes laws outside the bounds of the limited delegated powers of Article 1 section 8.  And the Supreme Court as well as federal courts violate their jurisdiction beyond those areas specified in the Constitution. Logic dictates that there is no reason to think that merely changing the Constitution will result in corrupt people obeying it.  The President, the vast majority of those in Congress, the Supreme Court Justices and federal court judges are currently oath breakers –they do not honor their oath to defend the Constitution.  Changing the Compact will not mystically result in their Constitutional repentance.

It’s very disturbing to see how many prominent people are advocating that a Constitutional convention should be held.  Mark Levin supports it and is actively promoting this idea with his book The Liberty AmendmentsLevin has no Constitutional credibility since he completely rejects the validity of the states now using the 10th Amendment to nullify and interpose against federal laws that are not Constitutional.

Senator Tom Coburn has called for a Con Con.

Senator Rand Paul wants to amend the Constitution.

Constitutional historian Kevin Gutzman supports a Con Con. “I finally conceded, if the gigantic inertial force of 200 years of jurisprudential and political tradition could be overcome, we might actually use a remedy the Founders gave us: Article V. Via Article V of the Constitution, we could perform an end-run around the legal establishment and the self-serving Washington elite and restore decentralized, republican government in America…Thus, on April 9, 2010, Randy Barnett, the late Tony Blankley, Bruce Fein, and I participated in an Article V Amending Convention Town Hall on The Mike Church Show. (Here’s the transcript.) In the course of that two-hour event, the leading libertarian legal academic of his generation, a prominent Republican political operative, a one-time top official in the Reagan justice department, and Your Humble Historian touched on every question one could have about the unused portion of Article V of the Constitution.”

Robert Natelson who authored the book The Original Constitution supports a Con Con which he and other advocates now insist on calling an Article 5 convention.

I asked Tom Woods if he supported Mark’s Levin’s call for a convention to amend the US Constitution.  Surprisingly Tom Woods was open to holding a Constitutional Convention. Considering his knowledge of US history  and the Constitution I expected him to oppose a Con Con.

I interviewed Mike Church when he was at Nullify Now in Raleigh on 10/19/13.  I asked him if he supported the calls for a Constitutional Convention (Con Con) since Mark Levin and others were supporting the call for a Con Con.  Unfortunately he did support it even though he admitted that an Article 5 convention could not be limited in its scope, i.e., there would be no limitations to what an Article 5 convention could address.

Mike Maharrey, Communications Director of the Tenth Amendment Center, was interviewed at Nullify Now in Raleigh NC on 10/19/13.  I asked him if he supported the call for a Constitutional Convention (Con Con) which is being advocated by Mark Levin, among others.  Mike said he was neutral about the idea of amending the Constitution but he expressed healthy skepticism as to the potential benefits of amending the Constitution when the Constitution in its current form is ignored by the federal government.

5 thoughts on “Is the solution to federal tyranny a Con Con?

  1. On 2001-10-26, Congress nullified some parts of the Bill of Rights which invalidated the U.S. Constitution. The Constitution was only valid with the immutable Bill of Rights intact.
    As proof, when we had a U.S. Constitution, anyone serving as the U.S. President was required to have both parents U.S. citizens when the U.S. President was born. “president” Arthur’s father was not a U.S. citizen until after Arthur was born. “president” Arthur hid the information and had his papers burned at his death but we found out anyway.
    With Soetoro/Bounel/Obama we completely ignore that his father was not a U.S. citizen when Soetoro/Bounel/Obama was born. Other proof that the U.S. Constitution no longer exist include the current NDAA, Osamacare. HIPAA, TSA, our currency, and most of the federal government alphabet agencies.
    Going from a d-word and republican type of government back to a Constitutional Republic will not be easy.

  2. I think the reason behind opposing nullification is not that the states don’t have that power, or that it could preserve a state from overreach. But one state’s nullification does not protect another. The unconstitutional mandate still lives on the books. The tenth amendment does not satisfy enough because it does not fix the core problem in the case of unconstitutional edicts from Congress.

    • The strength of 10th amendment nullification and interposition is that every state does not have to act in order to stop the federal government from enforcing unconstitutional legislation. Consider the 2005 Real ID Act. At the time around 8 states including SC refused to comply with the Real ID Act and to this day it has never been enforced by the federal government.

  3. Well done, Rocco!

    I just add that our Framers saw nullification as that original and natural right of self-defense which pre-exists the Constitution and the 10th Amendment. We did not give ourselves that right in the 10th amendment. Nullification – resistance to tyranny – is one of the “natural” rights given by the Creator God. [Or to the secularists, “the natural law”]

    Rocco: How do we reach – if we can – the Mike Churches & Tom Woods of this land? I
    suspect those may not have thought this through.

    But Randy Barnett, Michael Farris, et all, know exactly what they are doing.

    It is so distressing that so many lack the wit to perceive this monstrous deception. But I expect this is why Countries rise and fall.

  4. Publius Huldah, on how can we reach someone like Tom Woods. His interview says he isn’t a sceptical as he used to be because we are living were the Constitution is being ignore. But is not some of the footing of Nullification based in the fact that the federal government is overstepping its Constitutional bounds? Would not Constitutionalizing their usurpation make Nullification more difficult? I understand that Nullification is a natural right, but is it not also based in the 10th Amendment? As a big support of Nullification, maybe this is how to reach him and others like him. It could institutionalize the very unconstitutional acts he and others are working so hard to nullify. Just my take.

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