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Thorner: Mark Levin’s case for an Article V Convention challenged




By Nancy Thorner - 

There is a move afoot, first brought to the mass of grassroots Tea Party participants by Mark Levin, radio host, attorney, and author in mid-August, 2013 with his book, "The Liberty Amendments," to push the idea of a Constitutional Convention, renamed "Convention of States" or Article V, which Levin and other pushers believe the framers allowed to be pursued through our Constitution.  The Liberty Amendments lay out the case for a Convention of States and proposes eleven amendments. 

Mark Levin insures us in his book that the process has no chance of being hijacked by the leftists/socialists, that the 10th Amendment using nullification is too cumbersome and doesn't solve the problems we face, and that state legislators, those closest to the voters, are the convention drivers.  How credible is it to believe that the federal government will listen to new amendments that curtail the wrack and ruin now being done if our federal government doesn't follow the Constitution as written?  However, many Tea Party conservatives, as well as others who feel big government has gotten out of hand, are open to dong something big to rein in the federal government and believe that amending the Constitution is the way to go.

Levin must surely know that the Oath of Office requires obedience to the Constitution alone and doesn't require obedience to persons, to any agency of the federal government, or to the federal court. 

Framers proposed nullification as remedy

In contrast to Levin’s proposals, a better policy would be for the states (as the original agents who agreed to the compact between the states spelled out in the Constitution), to enforce through state nullification of unconstitutional federal laws, for example, not revise the Constitution.

According to the original writings of our Framers, they actually told the States what to do when the federal government violates the Constitution.  Nullification of the unlawful act is among the first of recommended remedies.  Not one of them recommends an "amendment of the Constitution."  The Oath of Office at Art. VI, last clause, requires federal and state officials to support the Constitution. This requires them to refuse to submit to – to nullify – acts of the federal government which violate the Constitution. This is how they “support” the Constitution! 

Unfortunately nullification is not a term or a concept that the average American has heard before, so it has not been roundly embraced.  The TAC (Tenth Amendment Center) seeks to teach people about the original meaning of the Constitution and how  powerful grassroots coalitions can use nullification as a means to block federal overreach.  Accordingly, the powers delegated to Congress are few and defined.  The Tenth Amendment provides this explicit validation for nullification, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"

Thomas Jefferson and James Madison summed nullification up as follows 

"…when powers are assumed which have not been delegated, a nullification of the act" (4) is "the natural right, which all admit to be a remedy against in supportable oppression…"

Levin insists Constitution provides for Article V Convention

Levin and others who support an Article V Convention nevertheless insist that such a remedy is provided for by Article V of the Constitution and that amending the Constitution is the only way to deal with a federal government which consistently ignores and tramples over the Constitution.  This is not so, because Levin's amendment remedy, instead of fixing government, actually guts the Constitution by increasing the powers of the federal government by making lawful what is now unconstitutional because it is not an "enumerated power." 

Contrary to the claim in Levin's book that Article V authorizes the "state convention process" and how a convention called by Congress and pursuant to Article V is but a creature of the state legislatures, the only convention Article V authorizes States to convene is one within their respective border to either ratify or reject an amendment proposed by Congress or the convention Congress has called. All States can do is to apply to Congress for Congress to call a convention, which also has the power to appoint whomever they wish to as delegates. 

Other false Levin claims 

Another false claim made in Levin's book is that during ratification of our Constitution the Founders always talked about conventions for proposing amendments as representing the States. 

Levin relies not on the authority of the Founding Fathers for his above claims, but on an article written by former law professor, Robert G. Natelson, who Levin called an expert in the state convention process.   Levin summarily concluded that it was the custom of the time by our Founders for the States to have the power to call conventions, to determine the method to choose delegates, and the subject matter of the convention.  Accordingly, Levin misrepresented what happened at the Federal Convention of 1787 when claiming that 1) "the Constitution itself provides the means for restoring self-government and averting societal catastrophe and 2) "that Article V expressly grants state legislatures significant authority to re-balance the constitutional structure for the purpose of restoring our founding principles.   Article V said no such thing. Here is an account of really happened

Levin also relied on Randolph and Mason who on September 15, 1787, said they would not sign the Constitution unless Article V were amended to require another general convention to approve amendments proposed by what they called "state conventions."  However, Randolph's and Mason's plan of state conventions to propose amendments was rejected; they held the minority view.  It was pointed out that by a Mr. Pinckney that nothing but confusion and contrariety will spring from calling forth the deliberations and amendments of the different of the different states.  On the subject of the government at large, states will never agree in their plans. 

James Madison contradicts Levin's claim that an Article V convention offers a prudent way to propose amendments

Regarding the sanctioning of the amendment process, Levin further claims that in Federalist No. 43, Madison considered an Article V convention as prudent a method as having Congress propose the amendments.  Not only does Madison not say this in Federalist No. 43, but Madison further contradicts Levin's claims in his November 2, 1788 letter to Mr. Turberville.  Here Madison advises that when States want amendments, they instruct their Congressional delegation to pursue it, as this is the best way for the States to "originate amendments”. 

Levin’s claim is further contradicted by Madison’s words in his letter of November 2, 1788 to G. L.Turberville on the same subject.  This article by the Heritage Foundation likewise states what Madison thought about State amendments.   

In yet another letter to Mr. Tarberville on November 2, 1788, Madison warned, having witnessed the difficulties and dangers experienced by the first Convention:

"I should tremble for the result of a Second, meeting in the present temper of America.. .” 

Today we also have violent partisans, individuals of insidious views and those who would exploit an opportunity to sap the very foundation of the fabric of this nation.

Recalling what happened in the Convention of 1787 

It is wise to remember what happened in the Convention of 1787.  Called by the Continental Congress for the sole and express purpose of proposing a revision to the Articles of Confederation, the delegates chose to ignore their charge and instead wrote a new Constitution.  As the Continental Congress had likewise directed the states to appoint the delegates in 1787, today's Congress would most likely get the delegate it wanted.  This is further confirmed by the absence of a requirement in Article V of our Constitution that States are permitted to appoint delegates who would do what Congress wants and how could Congress be prohibited from doing so?  It is not far-fetched to believe that Christianity could be outlawed, as Obama is already outlawing it in the military.

 As pointed out in my Part 1, published at Illinois Review on October 10, 2016, George Soros is waiting in the wings with his Constitution which amounts to an assault on our Constitution.  Soros, and Marxist law professors all over country, want a Marxist Constitution in place by the year 2020.

Levin can't conceive of a runaway Article V convention

Also for consideration is how a new Constitution would have its own mode of ratification.  On page 15 of Levin's book he attempts to prove that an Article V convention can't possibly turn into  runaway convention, only to commit a formal fallacy (an argument defective as to form) by attempting to prove that an Art. V convention can’t possibly turn into a “runaway one:

1. Levin was originally skeptical of “the state convention process” because it could turn into a “runaway.”

2. Art. V says a proposed amendment has no effect unless ratified by ¾ of the States.

3. Therefore, the “state convention process” can’t result in a “hijack of the Constitution” [“runaway”].

Few of us have ever bothered to learn the Constitution, let alone to elect candidates who know the Constitution.  Is it any wonder that after more than 100 year of electing politicians who ignore the constitution, we are headed for disaster. 

Except for slavery, this nation was fortunate with the Constitution of 1787, this despite the runaway nature of it.  Consider the caliber of those who was there are the time:  George Washington, James Madison, Alexander Hamilton, and Benjamin Franklin.  Who would their counterparts be in today's society?  Any honorable candidate devoted to doing the right thing would be drowned out by subversive voices.

Being opposed to an Article V Convention or ConCon doesn't indicate a distrust of the American public; it recognizes the potential for mischief.   Could this nation tolerate the simultaneous consideration of a parliamentary system, returning to the gold standard, gun control, ERA, school prayer, abortion vs. right to life and anti-public interest laws that would undoubtedly be proposed as amendments from various groups and individuals who do not have the interests of the American people in mind?

Additional anti-con-con information:

Publius Huldah is a retired litigation attorney and well-known writer and speaker.  Her comments when addressing Eagle Council XLV, held at the Marriott St. Louis Airport-St. Louis, Missouri September 16 – 18, demanded that I pass along her research information to counter those who are pushing for an Article V convention.  Ms. Huldah uses The Federalist Papers to prove the original meaning and intent of our Constitution as conceived by our Founding Fathers.  View here articles by Publius Huldah. Many of them relate to Con Con.

Washington Times

Mark Levin is wrong: A Lawless Government not the Constitution, Needs Nullified 

Phyllis Schlafly

Good Advice Against a Con Con      

Janine Hansen

Article V Convention: Pouring Gasoline on the Burning Constitution

Justice Scalia's Con Con warning must be heeded


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  1. In the second paragraph you state, “are open to dong something big.” I am shocked that the anatomies of male tea party members have anything to do with big government. Are you channeling your inner Donald Trump?

  2. Those of us in Illinois know that not only will our state never stand up to the feds, most states won’t. We need practical ways to deprogram the brainwashed and put steel rods in our and other states backbones.

  3. I, of course, support nullification at this point. However, we need a solution to get rid of federal tyranny in blue states that won’t nullify it. Otherwise, tyranny will just grow in the blue states and migrate to the red states, turning them purple, then blue.
    I, however, don’t see how Article V could be any more dangerous than a Democrat Senate, a Hillary Presidency, and a Leftist Supreme Court.

  4. I agree in part with Nancy. As I have written many times in articles for Illinois Issues over the last 40 years, the theory of a convention might be OK but it would not be responsible to hold an Article V convention unless Congress first passed some sort of procedures bill and that has never happened and is not likely to in the future.