It takes a fair amount of audacity for a pair of political bloggers to call a group of lawyers that includes professors from Princeton and Georgetown Law School, two former Supreme Court law clerks, a White House Counsel, a law school dean, an attorney with actual Article V litigation experience and a former attorney general of Virginia “a posse of supposed conservative constitutional scholars.”
What could merit this kind of sneering vilification from the local political bloggers? We merely contend that the states should use the explicit text of Article V of the Constitution to stop the abuse of power by the federal government.
Let’s review the text of Article V and the actual history (using original sources) of the adoption of the Constitution to demonstrate that our arguments are factually accurate and legally sound.
The oft-repeated tale that the Constitutional Convention was supposed to only amend the Articles of Confederation but instead illicitly proposed an entirely new document cannot bear scrutiny.
Madison tells us in Federalist 40 that the convention’s delegates obtained their authority and instructions from each of the 12 participating state legislatures. Ten told their delegates to “render the federal constitution adequate for the exigencies of the union.” That was it. Seven of these state resolutions were passed before an enactment by the Confederation Congress in February 1787.
Congress repeated the above-quoted phrase about an “adequate” federal constitution but added the idea that the delegates should only revise the Articles.
However, Congress was simply passing an endorsement resolution — with no more formal authority than a modern congressional pronouncement of National Pickle Week. Students of history know two things about the Articles of Confederation: There was no provision for this sort of convention, and Congress had no implied powers. Congress could pass a non-binding resolution. But it could not and did not call the convention into being or give it any instructions. Note that the delegates and states largely ignored Congress’ admonition and stuck with the instructions of the states.
Two states (Massachusetts and New York) followed the congressional resolution’s formula in the grant of authority to their delegates. So it is an interesting historical question as to whether the delegates from these two states obeyed their instructions, but there is no basis for saying that the delegates from the other states disobeyed their mandates. Madison defends the actions of the two states’ delegates in Federalist 40. But the idea that the convention itself was illegal or an act of usurpation is the stuff of myth and not historical fact.
So, with that out of the way, let’s get to the actual issue: Should the states use their power to rein in the abuse of power by the federal government?