by Tim Baldwin, Liberty Defense League
the people have a right “to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Essential to this power is the people’s right to call a constitutional convention, where the people from various political societies send delegates to meet with other delegates for the purpose establishing a new constitution. As our history well shows, liberty can be restored through this power, although such an act is, in reality, an act of revolution because the Constitution does not provide for States to call a constitutional convention to create a new constitution.
The opposition to such a convention is essentially identical to the opposition to a constitutional amendment convention. In truth, the reason opponents resist an amendment convention is for fear that it will turn into a constitutional convention to draft a new constitution. I need not rehash the opposition’s arguments, nor do I need to reassert my arguments against those fears. See, Part 6. What is distinct, however, about the constitutional convention is that it is expressly designed to create a new constitution, not just to amend specific parts.
What are the effects of a constitutional convention?
With the unique purpose of a convention come unique opportunities. Recall that the opponents to the constitution of 1787 argued that the delegates to the convention did not have the authority from the people to draft a new constitution; they based their reason on the idea that the delegates could only amend the Articles of Confederation, not propose a new constitution. The Federalists set forth to prove that the Anti-Federalist arguments were not persuasive or correct. Madison said in response to their argument,
Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth. (Madison, FP 40.)
Madison observes that no number of States should have the power to prevent other States to reform government and the union as they deem necessary. In other words, regardless of constitutional forbearance, the inherent right of the people to choose their government trumps any prior constitutional provisions preventing that. Madison said further, citing the American Declaration of Independence as his authority,
forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness’ since it is impossible for the people spontaneously and universally to move in concert towards their object. (Madison, FP 40.)
This reasoning was monumental to the future of the United States. There are two effects that they understood then and we must understand now.
First, since the plan was new and operated outside their constitution’s amendment provision, it was naturally requisite that the delegates submit the new plan to the people as a recommendation. The Federalists said, “this plan is only RECOMMENDED, not imposed.” (John Jay, FP 2.)
Second, those States that did not ratify the new constitution remained a part of the old union and were independent from the new union. Madison described the new relationship this way: “no political relation can subsist between the assenting and dissenting States[;] yet the moral relations will remain uncancelled.” (Madison, FP 43.) In other words, they will remain friends even though they would be governed by different governments.
In a strict sense, the new constitution was secession from the union under the Articles of Confederation. The Federalists termed this movement as “claims of justice” and “rights of humanity.” (Madison, FP 43.) And it was accomplished through a people’s constitutional convention (as opposed to secession act passed by the legislature without expressed authority of the people, as in the case of the 1860s). But of course, the non-ratifying states could have treated the seceding States as usurpers of the Articles of Confederation, invoking both constitutional law and Law of Nations.
Are separate unions in America a good or bad thing?
The better question is, is it a good thing that the people choose what political associations under which they want to live? The Americans from 1776 to 1791 answered, “good” as necessity required. We know the Federalists strongly advocated that all of the States ratify the new constitution. As a new union, they faced many obstacles just to ensure their survival. Naturally a baby-nation requires much more unity for its survival than does an established and powerful one. Regardless, the new constitution did not require all of the States to ratify to remove them from the Article’s “perpetual union” and “firm league.” This means they expected and accepted that one-fourth of the union would be separated by the ratification of the new constitution.
If this topic were brought to the table today, it is likely that many people would feel the same. In my experience, I am finding more and more people amiable and even excited about the idea of a smaller, more manageable union—especially my generation. For many, the political conditions of the United States are so polemical that one constitution cannot meet the needs and philosophies of our societies. As many “conservatives” claim about our direction, America is “socialist” or worse. As many “liberals” claim, America is ruined by capitalism and greed. The two philosophies cannot exist forever, just as Lenin claimed during the Russian Revolution of 1917.
The Federalists understood the science of this and admitted that dissolution of a federal union is inevitable when the federal government continually assumes power to which States object. Madison observes, “A dissolution or usurpation is the dreadful dilemma to which [the union] is continually exposed [when the federal government overleaps its constitutional limits].” (FP 38.) This is inevitable even when the government determines it “could not have done otherwise” and believes the “public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits.” (Madison, FP 38.)
On even a relatively smaller matter, the Federalists believed that dissolution of the union would occur when the people’s right of election is undermined. Hamilton predicted that “a dissolution of the Union [might issue] if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election.” (Hamilton, FP 59, emphasis added.) How many conservatives today who oppose a constitutional convention also claim we do not have “free and fair” elections and claim the entire political process is controlled by conspiratorial elites? Do they think a free republic exists under that scenario?
On virtually every important political point, conservatives today cannot talk about politics without declaring that the federal government has destroyed and is destroying our Constitution. These denunciations include, the federal government operates as a corporation and not a government, federal politicians are bought and paid for by global elitists, there is no hope in restoring liberty through the federal government, and the like. Any one or combination of these arguments shows that conservatives believe the federal government routinely violates the Constitution and overleaps its constitutional limits a matter of course.
If these conservatives accept what our Founders concluded regarding political science and the inevitable dissolution of the union under these scenarios, what other hopeful remedy can be made to successfully rid conservative States from Socialist States? If the current (and foreseeable) combination of the States will only lead us all in the same direction of Socialism and Statism, how can the libertarian, conservative, and capitalist States expect to survive under such a constitutional condition?
Is a constitution convention inevitable?
In my view, a plenipotentiary convention will not take place before the States have convened to amend the Constitution under Article V–rightly so. However, assuming a constitutional convention would create a constitution destructive of liberty and rights, fifty states will still have to debate the proposed new constitution and a certain percentage would have to ratify it before it became effective, just as the States did from 1787 to 1791–assuming the non-ratifying states allow the other States that propose a new constitution to get that far without declaring their usurpation of the Constitution.
Regardless of the threshold needed to put the new constitution into effect (which would likely be no less than a simple majority and no more than three-fourths), the dissenting States will remain under the existing Constitution and the ratifying States will effectively secede (i.e. revolution), creating a new union of States separate from the existing union. If two unions become effective, each union will become masters of their own fate, free to choose which political principles will move their direction.
Unlike what happened in 1787, one can dogmatically state today that there is no way every State in the union will ratify a new constitution. Assuming the “worst” from a constitutional convention (should one even take place), as we can see in the Tenth Amendment movement today, dissenting States will choose to remain under the Constitution because they believe in Federalism and reject Nationalism and Socialism. This is why using Article V to amend the Constitution through the States will be secure and will effectively limit the federal government. A new union of States would have no power to force non-ratifying States to accept the new constitution.
If conservatives are going to be true to their beliefs and if political science is actually applied to political conditions in America, one would have to strongly consider that America could exist very well with more than one union. If America can live at peace with China, Russia, Europe and virtually every nation in the world with few exceptions; if America can trade freely with the world (and that be considered a good thing); if America has the capability of reconciling international conflicts with hostile enemies routinely, how in the name of Reason and Experience can America not work a solution to create separate unions peacefully with our friends and neighbors in a way that protects the interests of everyone?
While the Federalists wanted one union in America, they agreed having more than one union would be possible, perhaps probable. To them, the effect of Article VII was more lasting than just four States not being in the new union. It would have meant that new territories could have applied to become new States with either union, causing both unions to grow over time. In effect, it could have created, say, 25 states in one union and 25 states in the other.
To argue that the founding generation thought this was destructive to our liberty defies what Article VII of the Constitution explicitly reveals about their willingness to have more than one union in America. Only the emotional, unreasoned thinker would conclude that since America has always been one union it should remain one forever. Only a biased ideologue would oppose such a thing on mere tradition or what people who have been dead for over 200 years “would have wanted.” These are the same people that reject using Article V to amend the Constitution to limit the federal government. Sadly, they presume the worst and have little or not faith in Americans today.
People must make decisions for themselves today, not just for some unknown posterity in hopes that rejecting new proposals will somehow better their lives and restore their liberty. What political methods have not been pursued to “get America back to the Constitution” in the past 150 years? Everything—except the constitutional amendment and convention process.
Perhaps there will be nothing that will get some Americans to think in these terms until the inevitable happens—dissolution of the union—except in that case, it will occur in much less friendly terms than the people’s delegates gathering for the purpose of implementing reason, reflection and choice. If dissolution is inevitable, as many conservatives claim, what good can come to our States from a violent dissolution? Do you think trying to build a nation out of war when we are vulnerable to foreign invasion and more will be easier than in peace when we are strong economically and militarily? Why must we lose everything before a proper course is chosen?
Americans who want to restore liberty and the Constitution in their States should begin analyzing our political situation in terms of political association and unions and talking honestly and openly about how, first, constitutional amendments will benefit America. If that does not work, the next logical discussion is the constitutional convention. Before a convention happens, however, we must use Article V to amend the Constitution to limit the federal government and restore a proper federal balance with the States. If we reject this sound, workable solution, then people will likely be forced to convene at a constitutional convention out of utter necessity and dire straits. I propose we use the better choice of Article V first.