(This is an exerpt from a longer essay. You can read Robert’s full article here.)

Anonymous blogger Publius Huldah has attacked Mark Levin for proposing an Article V Convention of States to bring the federal government back in line. She claims not only that such a process would be commandeered by Congress, but also that there is a substantial risk such a convention would “run away” and do incalculable damage to our rights and our system of government. In order to reach her conclusions, Ms. Huldah has misconstrued the text of the Constitution, the Philadelphia Convention Debates, and the historical background against which they were framed. Far from defending our Constitution as she purports to do, her sloppy scholarship, attacks on the legitimacy of our Constitution, and advocacy for the extra-constitutional doctrine of nullification, exhibit a fundamental disregard for the laws, principles, and men that made this country great. 

The Problem and the Solution

The place to begin, as Ms. Huldah properly recognizes, is understanding the problems that America faces today. I’m sure we’re all acutely aware of them. Let it suffice to say that we have a runaway federal government that is abrogating to itself rights and powers properly left to the states and the people. Sometimes federal officials scoff at the idea of constitutional limits; other times, they use the Constitution as a pretext for their abuses.

Ms. Huldah only seems to identify the first of these two issues. “It is idiotic,” she claims, “to assert that you can rein in a federal government which ignores the Constitution by amending the Constitution!” That may be true if the only sin of federal government was flat out ignoring the Constitution. Unfortunately, that is an overly simplistic view of our current predicament. The real problem we face is a combination of feckless politicians who trample our Constitution with impunity, others who exploit constitutional loopholes to pass their pet projects, and still others who remain wholly ignorant of the Constitution’s meaning. It’s these last two groups of politicians who don’t understand the Constitution, or apply it according to their own fancy, that can be corrected through constitutional amendments.

And indeed, the historical fact is that amendments do work. The first 10 Amendments stand as bulwarks of individual liberty to this day. The 11th and 14th Amendments permanently corrected erroneous Supreme Court decisions. The 22nd Amendment imposed term limits on the President.  Before resorting to revolutionary remedies that find no mention in the text of the Constitution (and therefore lack checks and balances), we should look first to the Constitution’s own methods for fixing our government, Article V foremost among them.

The Text

Since the Constitution is the foundation of our government, and the starting point for any solution to Washington’s abuses, let’s begin the core of our analysis there, with the text of Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . . .” [emphasis mine]

Ms. Huldah asserts that this text, or rather its silence, gives Congress the power to call and control a convention of states. But is the text really silent, or does it give us some direction with regard to Congress’s authority over a convention?   

Note what the text says: “The Congress . . . on the Application of two thirds of the several States, shall call a Convention for proposing amendments . . . .”  In legal documents the word “shall” means “must.” It doesn’t mean “you can do it if you feel like it.” It doesn’t mean “you really ought do this, but can ignore it if you want.” It means “you must do this.”  If a state law says, “you shall not drive drunk,” that’s not a suggestion, it’s an order. If you disobey it, you do so at your peril, both legally and morally. When Article V says, “Congress . . . on Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments” it means Congress must call a convention if enough states ask for one. Congress has no discretion. The text of Article V itself sets the tone for Congress’s power, or rather its lack thereof, over a convention of states.

Ms. Huldah reluctantly concedes this point, but persists in her claims that the silence of Article V gives Congress room to appoint and control the delegates to the convention. This claim exhibits a fundamental ignorance of basic agency law, and historical constitutional practice.

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