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October 21, 2014

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An Open Letter to Article V Opponents

August 10, 2014

There is ZERO evidence that ANY Founder thought or said anything remotely like an Article V convention was NOT controlled or targetable by the states.

 

George Washington did not tell a lie when he said the states could obtain desired amendments through the Article V convention process. For the proof, read: http://blog.constitutioncenter.org/2014/02/did-george-washington-tell-a-lie-about-state-control-over-article-v-amendments/

 

Please do not recycle the out-of-context quotes from Madison's letter to Turberville dated November 2, 1788 in which he expresses concern over New York's proposal to convene a second constitutional convention or an Article V convention addressing more than two dozen different amendments. Madison was addressing a proposal to convene either a wide-open second constitutional convention or to convene an essentially unlimited Article V convention by opponents of ratification during the ratification debates. He knew that they were trying to scuttle the Constitution and start over. That criticism does not apply to the use of Article V in a targeted fashion. It does not imply that states cannot target the Article V convention process if they so choose. It is misleading and fraudulent to use that quote to suggest that it was.

 

Stop misrepresenting what Federalist No. 85 says.

 

Federalist No. 85 was entirely about the superiority of the Article V method of amendments, including the convention mode of proposing amendments, over convening a second constitutional convention. It was entirely about how the amendment process was NOT equivalent to a ground-up constitutional convention. You want to know how to discern this? Read the following point made by Hamilton:

 

"There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution."

 

Hamilton also said, "every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place."

 

He spoke of "every amendment," logically including even an amendment to be proposed by convention, being "brought forth" as a single proposition, which is fully consistent with Washington's representation that 9 states could in their applications specify amendments they desire. Hamilton discounted the "necessity" of "give and take," rejecting the notion that the convention process is necessarily one in which there is freewheeling deliberation. Hamilton referenced both to "nine, or rather ten states," not as a hiccup (this was not a transcribed speech, but a book and later a newspaper article) because he was emphasizing how with the convention application process (9 states) or with the ratification process (10 states) states would unite on the desire of a particular amendment.

 

Further, Hamilton cemented the clear representation made that the states targeted the process with his statement "Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority."

 

Notice that he again referenced both the convention application process (two thirds) AND the ratification process (three fourths) as being instances in which the states would "unite . . . in amendments." Again confirming that the states would target the convention process through the application process.

 

Furthermore, because of this prefatory remark, we know that the statement that relying on "state legislatures to erect barriers" is in reference to the Article V convention mode of proposing amendments, not the ratification process. Otherwise, it would make no sense. Why?

 

Because CONGRESS, not state legislatures, control the ratification process. CONGRESS can choose between ratification by state legislature or by in-state convention. There is no guarantee whatsoever that state legislatures will ever get to ratify any amendment. Therefore it would be a FALSE statement for Hamilton to say that we can rely on "state legislatures to erect barriers" through the ratification process. We cannot rely on them to do so. The only way Hamilton's statement can be read as TRUE is if it is were in reference to the power "state legislatures" have to apply for a convention for proposing amendments, NOT the ratification process. This is because only that part of the Article V process is entirely controlled by state legislatures. And therefore, when Hamilton wrote we could rely on "state legislatures to erect barriers" he could have only been referring to the power of state legislatures to use the application process to bring forth single amendments by way of convention to "erect barriers" against the national authority.

 

In fact, notice footnote 2 in reference to "If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine(fn2) in favor of subsequent amendment, rather than of the original adoption of an entire system."

 

Footnote 2 says: "It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify."

 

The reference that "two thirds may set on foot the measure" clearly confirms that he application process will set "on foot" the "alterations" to be "effected by nine States." This is, again, consistent with the view that the convention would be targeted by the state legislative application process.

 

Finally, this interpretation of Federalist No. 85 is fully consistent with the representations made by Federalists during the Virginia convention, which are noted in the above-linked National Constitution Center article. And it best explains the representation made by Madison in Federalist No. 43 that the states retain an equal power with Congress to originate amendments. And it best explains the representation made by Madison in his 1799 Report on the Virginia Resolutions that the states could use the Article V convention process for the "object" of obtaining an explanatory amendment that the Alien and Sedition Acts were unconstitutional.

 

To conclude, ALL of the founding era evidence supports the observation that ALL of the founders believed and represented that the states controlled the convention process to propose the amendments they desired.

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