The Article V Convention Debate

NULLIFICATION OR AMENDMENTS?

by Paul R. Hollrah, ©2013

(Sep. 22, 2013) — An otherwise highly respected authority on constitutional law… writing under the pseudonym Publius Huldah (PH)… has written an extensive critique of Mark Levin’s bestselling book, The Liberty Amendments, in which Levin urges the states to move toward an Article V convention.

Article V of the U.S. Constitution provides for the Constitution to be amended either through amendments originating in the U.S. Congress, or through a call for a constitutional convention originating in the legislatures of two-thirds of the states.   The primary purpose of an Article V convention would be to repair the substantial damage done to our Constitution through more than two hundred years of purposeful liberalization. 

None of the current twenty-seven amendments contained in the Constitution had their origin in the state legislatures, which is perhaps the primary reason why some otherwise sensible patriots, unfamiliar with the state legislatures, tend to oppose the idea of an Article V convention… as if the first one-hundred people, chosen at random from a city street, would make decisions or reach conclusions any less reasonable than the decisions and conclusions reached every day, every hour, every minute by the U.S. Congress, the federal bureaucracy, and the federal courts.

As one who spent an entire career working in state legislatures from New England to Texas, and as one who played a singular role in reversing the balance of power in Congress between 1975 and 1994, I suspect that I may be in a far better position to judge the relative merits of the state legislatures and the U.S. Congress than those who view those lawmaking institutions through the jaded lenses of the mainstream media.   

In reading PH’s numerous criticisms of Levin’s work, I found numerous instances that require either refutation or clarification.  For example, PH begins with a statement that compares well with Barack Obama’s fanciful, but meaningless, “hope and change” theme, suggesting that, “On one side of this controversy are those who want to restore our Constitution by requiring federal and state officials to obey the Constitution we have; or by electing ones who will.” 

PH cites Article VI of the Constitution which states that, “The Senators and Representatives before mentioned (the U.S. Congress), and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…”  In a giant leap of faith, based on nothing more than wishful thinking, PH concludes that, “This requires them to refuse to submit to – to nullify – acts of the federal government which violate the Constitution… We note that the Oath of Office requires obedience to the Constitution alone.  The Oath does not require obedience to persons, to any agency of the federal government, or to any federal court.”

PH is absolutely correct… but only in theory.  If members of the federal establishment felt any real fealty toward the Constitution, is it not reasonable to assume that we might see evidence of it on a daily basis?  Instead, the Congress and the executive branch have developed mechanisms… most often related to federal funding… that make it imprudent for state and local officials to tell the federal government to simply “shove it.” 

The Congress has rarely taken Article VI seriously.  However, with the EPA’s September 20 publication of stringent new standards, limiting CO2 emission from new power plants to 1,100 pounds per megawatt-hour, we now have the perfect opportunity to see whether or not the states have the courage to “nullify” the new standard.  State officials complain that the only way new coal and gas-fired power plants could be built under the new standard is with an experimental technology called Carbon Capture & Storage (CCS).  American Electric Power has developed one small CCS demonstration project in West Virginia, at a cost of $100 million to produce 20 megawatts of power.  And although the demonstration project has now been abandoned, the EPA calls on the electric power industry to rely on that uneconomic technology.  

PH writes that, “We have read original writings of our Framers and know what our Framers actually told the States to do when the federal government violates the Constitution: Nullification of the unlawful act is among the first of the recommended remedies – not one of which is ‘amendment of the Constitution.’  The claims of the nullification deniers have been proven to be false.  To persist in those claims – or to do as Levin seems to do and ignore the remedy of nullification – is intellectually and morally indefensible…”

Yes, the Framers gave us Article VI, a requirement that all those in positions of authority, at all levels of government, must support the Constitution.  Everyone understands that.  But what if the federal government grows so large and so out of control that those in the executive, legislative, and judicial branches simply find it more convenient to ignore the Constitution?  What do we do then?  Do we to simply lie down, curl up in a fetal position, and suck our thumbs?

If PH, and others, believe that the Framers intended nullification to be the principal remedy for unconstitutional acts by the federal government, then why did they not stress nullification as an alternative in Article V or in the 10^th Amendment?  How did the Article V convention, instead, become the principal remedy for an overreaching federal establishment? Nullification was a given, not requiring specificity, because in our constitutional republic it is the states that hold the ultimate power.  But because the Framers understood the tendency of centralized governments to grow too big and too powerful, it is precisely for that reason that they found it necessary to specify the alternative of an Article V convention.

PH accuses Levin of ignoring the concept of nullification.  That simply is not true.  Every Article V proponent, which also honors the 10^th Amendment, begins with nullification as a first principle.  But what if nullification is an impractical solution… what then?  That is the point at which Levin and other Article V proponents take up the issue.  Although Article VI requires all members of Congress, the state legislatures, the federal and state bureaucracies, and the federal and state courts to support the Constitution, it provides no specifics and no penalties for failure to do so.

Unfairly ascribing motives to others, PH insists that Article V convention proponents feel that the only way to deal with a federal government which “consistently ignores and tramples over the Constitution” is by amending the Constitution, asking, “Do you see how silly that is?”

Silly?  What is silly is to point out time and time again that the federal government “consistently ignores and tramples over the Constitution,” and then fail to offer a single suggestion as to how we might induce those in positions of power at the federal level to obey the Constitution.  If anyone owes the public an apology it is the opponents of the Article V convention… those who so cavalierly dismiss the paramount role of the state legislatures in our constitutional republic.  

In one of his/her most bizarre arguments, PH argues that, “Levin’s amendments actually gut our Constitution.  Most increase the powers of the federal government by making lawful what is now unconstitutional because it is not an ‘enumerated power.’ Others put a band-aid on a problem without solving the problem…” 

That simply is not true.  I would suggest that PH read Levin’s book before characterizing it.  I would particularly recommend a careful reading of Levin’s appendix in which he summarizes a list of proposed amendments.  (See, pages 209-219)

Finally, in discussing the alternatives for originating amendments, PH quotes Article V, which states that Congress, “on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments.”  However, PH then suggests that, “The States don’t ‘call’ (the convention) – all they can do is apply to Congress for Congress to call it.  But since Congress ‘calls’ it, Congress has the power to appoint whomsoever they will as delegates; and nothing in the Constitution says they can’t do this.”

Nor does the Constitution specify whether delegates must arrive at the convention by plane, train, or on horseback.  Article V does not say Congress “may” call a convention, nor does it say that Congress “may consider” calling a convention.  Article V says that Congress “shall” call a convention and that is precisely what the Framers intended.  The Congress has no choice in the matter.  Nor would the Congress have any say whatsoever in the appointment of delegates to the convention.  If California wants to send fifty-five delegates and Oklahoma decides to send only three, that’s fine.  Californians need only be reminded that, like Oklahoma, their state will have just one vote… no matter what sort of mental gymnastics it might take to decide that one vote.     

Mark Levin has prescribed a totally sensible means of restoring and restating our constitutional principles, while the opponents of an Article V convention deny the authority of the states and engage in mere wishful thinking, pinning their hopes on the need for federal and state officials to finally begin to take their Article VI oaths seriously. 

The Obama administration has provided a 60-day window during which interested parties may comment on their CO2 standards for new power plants.  As a test case, it will be interesting to see whether state governments have the courage to resort to “nullification,” or if the EPA will be successful in forcing the unachievable new standards down everyone’s throat… killing untold numbers of jobs and driving power costs through the ceiling in the process.

phollrah@yahoo.com