By Harold Pease, Ph.D.
When teaching the U.S. Constitution at the college level for several decades, I frequently asked students, “What would you add or remove.” In hundreds of classes no one offered anything. No governing document has withstood the needs of humankind and the test of time more readily than ours because it fulfills the requirements of natural law and human nature and mostly leaves us government free. Yet today both sides express unhappiness with it and want a convention to alter it; the one because they want more mandated control: mask wearing, lockdowns, vaccines, civilian disarmament, and etc., these are always ruled unconstitutional, the other, because the Constitution does not mandate obedience to it. But the Constitution is not the problem, keeping one’s oath to protect and preserve it, is. The proper “fix” for the Constitution is to use it as written.
Since a balance budget amendment is the “fix” most often cited for an Article V Convention let’s first see if there exists a need for it if we followed the Constitution as written. Article I, Section 8, Clauses 1-18 lists the areas (only four with 18 parts) where Congress is authorized to make law and Article I, Section 7 bestows on the House of Representatives alone the origin of “all bills for raising revenue” (taxes). If Congress limited itself to the list as intended (that’s why it exists) there would be an excess of reserve money and no need for a Balance Budget Amendment as today a vast majority of the things funded by the House are not even vaguely enumerated, thus are not constitutional. In fact, both political parties have violated this part of the Constitution to oblivion—thus Congress funds everything it wants. It’s not a weakness of the Constitution that we ignore its clarity, but our oath to follow it as written, is.
In my current events classes each student was given a Constitution and ask to problem solve with it for every issue that came up during the semester. Authority to act on the issue was determined first. It was more simple than one might suppose. If not an enumerated power in Article I, Section 8, Clauses 1-18, or elsewhere, that power was automatically assigned to the states in Amendment 10. “All powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.”
The real problem is that neither party follows the Constitution as written. “The notion that amendments can be used to limit or restrict powers that were never given to the federal government by the Constitution in the first place, or that an Article V Convention can be used to regulate the behavior of those who already violated the Constitution (emphasis added), is illogical,” even naive (“Article V Convention Will it Work?” by Christian Gomez, The New American, July 11, 2022, p. 8). If their oath to the existing Constitution did not restrict them could it, or would it, to another document. No!!
Actually, under Article V, Congress calls the convention when two-thirds of the states apply to Congress for one. States do not, and under Article V, cannot call a convention. Calling a convention is the authority of Congress alone. Article V reads, “or on the Application of the Legislature of two thirds of several States” Congress remains the only receiving body of the application request and the resulting convention is a federal Constitutional Convention—not a state Constitutional Convention, such would be unconstitutional.
The Constitution houses no language “convention of states,” this phrase is a distortion of Article V. To imply that Congress is removed thereafter or does not govern the process is false as Congress oversees the changes “when ratified by the Legislatures of three fourths of the several States, or Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress”
A convention can not be limited by the states prior to or during, and state legislatures cannot affect it once assembled; it becomes independent from them. It also cannot be open ended. The only Constitutional Convention in U.S. history exceeded its instructions, even defying Article XIII of the Articles of Federation. In that instance it worked to our benefit and the then Federation government simply passed it on to the states. But this is extremely risky—even dangerous— especially today with honor and integrity of statesmen noticeably diminished. Justice Antonin Scalia once said, respecting a convention of states, “Who knows what would come out of it” (Ibid. p. 9).
Article V language “as Part of this Constitution” suggests no authority to replace the Constitution with another, yet the enemies of the Constitution now in place must believe this still possible. They have written at least six replacement Constitutions and are waiting for such a moment to propose them. These include: Rexford Guy Tugwell’s “Constitution for the New States of America,” “Constitution for the New Socialist Republic in North America,” “A New Constitution for the United States,” “The Libertarian Constitution,” and “The Progressive Constitution.” Most are socialist and Communist documents. Even the conservative movement in America has one called “The Conservative Constitution” which emasculates the 2nd Amendment (Ibid. p. 11).
The Founding Fathers provided a window for specific and limited change to correct any defects or errors such as the inclusion later of a Bill of Rights, Amendments 1-10. In 235 years there have been only 27 amendments to the Constitution all coming through Congress—none by convention. This attests to its being undoubtedly the least flawed governing document in the history of mankind. This is a history of astounding success. To those in power there is no need for an Article V convention, just honor your oath to defend and preserve the Constitution as written. Your failure to do this is driving both ends of the political spectrum to risk losing it.
670 published columns on current events and the Constitution
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit www. www.LibertyUnderFire.org.