There is a great deal of interest in an Article V Convention particularly in light of the publication of Mark Levin’s book Liberty Amendments. The frustration American patriots are expressing with the growing tyranny of Washington, D.C. is clearly warranted. The out of control actions of the Legislative, Executive and Judicial branches have reached a level unimagined even a year ago. How to curb that tyranny and return our civil government to the bounds of the Constitution is a vitally important question.
Mark Levin’s proposal is attractive for many reasons and the movement behind his idea is growing. The most important question this is this, is the process he proposes Constitutional? And the second question is would it accomplish the purposes for which he sets the Liberty Amendments forward for consideration before the American Republic?
First question, yes a Article V Amendment is constitutional.
There are two ways of presenting amendments to the Constitution provided in that instrument. By the first, by Congress whenever two-thirds of both Houses shall deem such amendments necessary: or by the second, the same body, upon the application of the Legislatures of two-thirds of the States, may call a convention for the purpose of proposing amendments. These two are the only modes in which, under that instrument, amendments can be proposed to the Constitution. Either of these is adequate, and it was the manifest intention of its framers to secure due consideration of any changes which might be proposed to the fundamental law of our Government.
Mark Levin’s proposal claims to follow this second route but with a significant difference.
Instead of applying to Congress as the text of Article V demands, his proposal would leave it in the hands of the States without application to Congress. He would claim that the justification for this which I think is clearly an UnConstitutional path, is the Convention of 1861 which met in Richmond, Virginia.
That argument however does not hold water. Listen to what Delegate Baldwin to that convention states,
it was the manifest intention of its framers to secure due consideration of any changes which might be proposed to the fundamental law of our Government. It is conceded on all hands that our action here will amount to nothing, unless it meets the approval of Congress, and such proposals of amendment as we shall agree upon are recommended by that body to the States for adoption. The session of the present Congress is drawing to a close. There remain only fifteen or sixteen days during which it can transact business. Can any one suppose that in the present state of the country, with the large number of important measures before Congress and awaiting its action, any proposition of real importance emanating from this Conference could be properly considered by either House in this short time? I am assuming just now that this is a Convention which has the right, under the Constitution or by precedent, to make such propositions. But if we do not remember, most certainly Congress will, that however respectable this body may be, however large may be the constituency which it represents, it is, after all, one which has no existence under, and is not recognized by the Constitution. In a recent speech in the Senate, Judge COLLAMER, of Vermont, one of the ablest lawyers in that body, has more than intimated a doubt whether Congress could, under the Constitution, entertain proposals of amendment presented to it by such a body as this.
Note the telling language, this Convention “is not recognized by the Constitution.” In other words the 1861 Convention was not an Article V Convention at all. Levin’s history lesson doesn’t teach what he claims it teaches at all, but exactly the opposite.
In addition there is another factor that must be considered which I believe answer the question of whether the Liberty Amendments would actually accomplish the purpose that is claimed for them.
A Convention is a higher law making body than a legislature. Therefore they can propose a whole new constitution. It is not possible, as claimed, to limit a Convention once it is called. The proof is the Convention which met in May 1787 in Philadelphia. That convention was given very specific and exacting instructions; quoting from the Massachusetts resolution commissioning their delegates to the 1787 Convention they wrote,
for the sole & express purpose of revising the articles of Confederation, and reporting to Congress & the several Legislatures, such alterations & provisions therein, as shall when agreed to in Congress, and confirmed by the States….
There was no warrant given to the delegates from Massachusetts or from any of the other participating States to even consider a new Constitution nor to propose any new Constitution. Yet that is exactly what they did in 1787. Was what they did legal? Well if what they did was not legal, then our 1787 Constitution would not be legal. It is legal however and it demonstrates that what takes place in such a Convention cannot be limited by anything written down by any State Legislature.