The Last Check: State Convention Pt. I

Testimony of Timothy Dake Before a Special Wisconsin Joint Committee on the Merits of States Calling for an Article V Amendment Convention. He is Representing the Wisconsin GrandSons of Liberty

By Tim Dake – March 28, 2017

I am Timothy Dake of Franklin, Wisconsin and I represent the Wisconsin GrandSons of Liberty. We are a grassroots constitutionalist activist group. We work for constitutional adherence, promotion and defense. Article V is then clearly an issue within our scope.

Our organization first opposed the state’s use of ARTICLE V to propose amendments, but after four years of research compiling nearly 900 pages on the subject, we now enthusiastically support it.

When GrandSons of Liberty formed in 2009, we were adamantly and vehemently against an Article V convention believing in the hype that it would run-away, could not be limited and would create a parade of horribles.

Our initial position statement on Article V looked at both or all sides of the issue, the relevant court cases, laws and pending legislation as well as government actions taken. When we reviewed the data for Article V amendment conventions, we realized that the facts, the real evidence, did not support our initial position. We were forced to reconsider and change our position to support an “amendment convention”.

After compiling four years of research on the subject, we decided to place everything into a single resource. Those documents, everything on Article V, became the recently published book, Far From Unworkable. This 900 page expansive volume, is the first and only comprehensive reference work on the Article V convention with original historical documentation, relevant judicial actions and subsequent analytical reviews.

Our sources include over 500 academic law review and law journal articles, over 100 scholarly history articles, more than 150 academic books and more than 1,000 government documents. Books include such staples as The Federalist Papers, Farrand’s Notes on the 1787 Convention and Eliot’s Notes on the Ratification of the Constitution, among many others.

Let’s begin with the most discussed question, whether an Article V “amendment convention” can be limited. Confusion on the various types of conventions is at the heart of the matter.

Plenary* or Limited Conventions – A “constitutional convention”, is a plenary, all powered convention empowered to draft a constitution by a legitimate government. It is NOT the same thing as an “amendatory convention”, which is a limited-power convention called to do a very specific act, that is to draft and propose an amendment, and nothing more. An “amendatory convention” is restricted to the scope of the objective defined in the call to the convention by their respective legislatures and is called under the authority of and subject to the superior constitution.

(*Definition of plenary, adj: complete in every respect: ABSOLUTE, UNQUALIFIED plenary power)

There are many types and categories of conventions. The first under consideration is the “constitutional convention”. The “constitutional convention” is plenary, fully powered to do what is needed to form a government and draft a constitution. “Amendatory conventions” are not a category but a type of another category – the specialized convention. This category is always non-plenary and authorized. They are a lower energy and limited purpose conventions called to do a particular task only. They are not endowed with the full sovereignty of the people and can do only what the call to convention permits. An “amendatory convention” is limited to the proposal, debate and referral of an amendment idea only. It cannot ratify or enact, it cannot change the Constitution or rewrite it, nor modify the ratification method. It can do nothing by make a recommendation.

Opponents usually ignore the subservient authority of an “amendatory convention” claim that an “amendatory convention” can do all of rouge actions and more. That there are no limits on such an “amendment convention” and that the convention answers to no one. They tell you that it can rewrite the Constitution, repeal the Bill of Rights, reinstate slavery, take away a woman’s suffrage and force us to have roundabouts at every single intersection. That kind of power is actually describing a revolutionary convention by the legal description. It usually exists in the absence of government and has not occurred in this nation since 1861 in the Southern States.

The Late Supreme Court Justice Scalia was in Support of an Amendment Convention

Occasionally you might hear someone use a quote from the late Justice Scalia from a 2014 National Press Club show were he said “Whoa, we shouldn’t have a ‘constitutional convention’ because who knows what would come out of it.” Justice Scalia was a brilliant lawyer and he knew the value of words and used them precisely. He was talking specifically about a constitutional convention and not an amendatory convention. So let’s look at a Scalia quote for an amendatory convention:

“The one remedy specifically provided for in the Constitution is the amendment process that bypasses the Congress. I would like to see that amendment process used just once. I do not much care what it is used for the first time, but using once will exert an enormous influence on both the Congress and the Supreme Court. It will establish the parameters of what can be done and how, and after that the Congress and the Court will behave much better.”

I love that quote as it goes to the heart of Article V’s state-application-and-convention method. Justice Scalia clearly distinguished between the two types of multi-state conventions, favoring Amendment Conventions over the other.

The Real Facts about the Historic 1787 Convention of States

The next topic that I would like to address is the idea that the Grand Federal Convention of1787 in Philadelphia – and that was its name – ran-away and assumed powers not given to it and that it is a precedent for a future amendatory convention to do the same. There are two parts to this matter, the events at Philadelphia and those that preceded the 1787 convention.

With regard to the Philadelphia convention, did the 1787 Grand Federal Convention exceed its mandate and 1) write a new constitution without authority, 2) change the ratification process, 3) defy the States and Confederation Congress?

The Sad State of our Early Nation under the Articles of Confederation

Let’s consider the state of the nation in early 1787: The Articles of Confederation were not working out. Debt, national and personal were up and growing. The States were taxing each other. There was no hard money. Bankruptcies and foreclosures were up. Congress was wholly ineffective. The Articles of Confederation and Perpetual Union went into effect with Maryland’s ratification in 1781. The first complaints for a revision were in August 1780 when 3 states met in Boston. Then Alexander Hamilton issued a convention call in September 1780.

In November 1780 another meeting took place among several state in Hartford. In July 1782 NY called for a convention. In 1784, VA and MD concluded that a plenary convention is needed to reform the government. The Massachusetts General Court considered a convention call in 1785. In September of 1786 the “Meeting of Commissioners to Remedy Defects of the Federal Government” met in Annapolis with 5 states attending. The convention report pushed for a convention in Philadelphia in May 1787.

States Initiate the 1787 Gathering in Philadelphia

The delegates’ commissions to Annapolis for New Jersey authorized them to take up not only commercial matters but also “other important matters necessary to the common interest and permanent harmony of the several States.” The formal call to convention came not from Congress but from Virginia and was seconded by New Jersey. One by one the states began to answer and pledge to attend. When Congress finally got around to addressing the topic with a convention call of its own on 21 Feb 1787, six states were already committed to participating and had issued delegate commissions. Another, New York has voted to attend but did not issue the commissions until a few days after February 21st. By then Shays’ Rebellion had occurred and the rest of the states saw the need for major changes. George Washington had been writing to anyone and everyone encouraging major changes in the Articles of Confederation. Discussion among the political leaders of the day focused on plenipotentiary** power for the Philadelphia convention. Taking the wording from the New Jersey commissions, ten of the twelve attending states granted authority to their delegates “to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” (** invested with full power)

Four of the twelve attending states, fully one third, came prepared with proposals for the overhaul of the federal government. Virginia’s Gov. Edmund Randolph proposed the Virginia, or large states, Plan; Charles Pinckney of South Carolina, Attorney General William Paterson introduced the New Jersey, or small states, Plan, and Alexander Hamilton produced the New York Plan.

To put this information in context, at least one quarter of the 8th Confederation Congress, that is 15 out of 60 congressmen, served in the Philadelphia Convention. Those congressmen debated and voted for the 21 February 1787 resolution to call a convention, then they served in the convention that they had themselves called where they, on behalf of their states and per the commissions issued to them by those states, drafted, debated and proposed a new government and constitution, then they returned to Congress in New York and debated and agreed to send that same constitution to the States for consideration for ratification, and finally, they served in those ratification conventions where they voted to ratify the constitution that they had created themselves. If they ran-away, then they ran-away from themselves.

Get the book: Far From Unworkable 

Watch for Part II tomorrow.

Hunt For Liberty