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17 December 2010


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Adam L Silverman


What several states, Texas for instance, are doing is passing nullification resolutions based on fringe readings of the 10th Amendment. They really have no efficacy other than to keep the politics of resentment going and focused on things other than the given state's leadership. Some of the same leaders are also calling for, dropping hints about (again Texas in the person of the governor comes to mind), or trying to pass resolutions laying out when or under what conditions secession is warranted. Much of this is pandering, much of it is astroturfing to keep the base, currently preoccupied with ardent fervor, but little actual knowledge or understanding of the Constituion, perpetually wound up and aggrieved. All the same elites and notables doing the funding and organizing and the same demographics that they're always trying to organize. The only difference is that this time they're using and foregrounding faux constitutional language. The base is being fed a steady diet of some of the most extreme conspiracy theories. Ideas and groups run out of the mainstream decades ago (Buckley's banishment of the Birchers for instance) are now openly peddled on cable news, at part conventions, and being written into state party conventions and Texas textbook standards. In the latter case, as we've discussed here in the past, they've written Thomas Jefferson out of the history books, but a Phillis Schlafly in. The men leading that are all thought leaders in a variety of fringe religious, social, and political movements and now part of Mr. Beck's black robe brigade of religious leaders who will help take back the country. They'll happily continue to separate their flocks from what little wealth they have left and then capitalize on the desperation.

Richard Armstrong

The idea of a constitutional convention terrifies me. As you pointed out the Articles of Confederation were to be amended and not replaced by a new document. While fortunate this is the best example of a legislative body over reaching it's mandate.

The Constitution as originally written did not specify any protections for citizens from the government. Thank Heaven that your fellow Virginian Thomas Jefferson threw his considerable weight behind the adoption of a number of amendments now referred to as the Bill of Rights.

Call me an elitist if you will, however the specter of the Koch brothers and Goldman Sachs through their "Citizens United" campaign contributions controlling such a convention frightens me to death.

As Franklin said, "Gentlemen you have a republic if you can keep it."

I fear a constitutional convention would be the end of our republic.

Patrick Lang


I think you missed the point. 30 or 31 states have voted resolutions calling for a constitutional convention on a balanced budget amandment. Correct me if I am wrongon the number. pl

Douglass Schmacher

"Once in Philadelphia the delegates seized control of the process and without authorization by Congress wrote a document to create a different form of government. They then submitted this document to the states for ratification."

After meeting, the first thing they did was to submit a proposal to Congress that the Constitution be put to the states. Congress passed the proposal unaminously. (They also proposed that Congress officially support ratification, but Congress chose to remain neutral.) The process had the sanction of the elected government of the time.

Patrick Lang


OK. Nobody is perfect. Anything on my essential points? You don't disagree that they had not been called to create a new form of government? pl


How else is there going to be a rebalance of fiscal resources? The States need more money and the Federal Government needs less (including debt financing). Without that fiscal rebalancing, what is the long term future of the US?

Sidney O. Smith III

If one wants to see our nation’s blind spots, then read strategic analysis from the “enemy”. The conclusions are not always correct and sometimes they represent what Sherman Kent called “taking off from the wish”. Nonetheless, it never hurts to read what others observe concerning the American body politic.

In the 1980’s, Soviet experts asserted that American style federalism would ultimately devolve into a very corrupt system that represented not the will of the sovereign people but special interests.

You can check that one off the list. Done.

In the last couple of years, at least one Russian has contended that the US is the verge of fragmentation.


Instead of disintegration, the process more closely resemble a type of atomization in the cyber age, but, regardless, there are fewer and fewer organizing principles around which the majority of American people identify themselves.

Adam L Silverman


I'm tracking now, but my understanding is that most to all of these are essentially non binding resolutions. Just like the calls for 10th amendment nullification. If they do pull it off, given the folks who are actually pushing for this stuff and think it's a good idea (folks like former senatorial candidates Miller, O'Donnell, and Angle), then we've got a real problem because it's clear they really don't know what they're talking about. I'll run this by a friend of mine who specializes on this sort of thing and let you know what I hear back.


Thanks so much colonel for the link! very interesting lesson for students of government to have a go at.

While I agree that the threats that a constitutional convention would present are real, part of me can't help but think it would be worth trying. Try & fail vs. not try at all & all that ..... hopeful - not optimistic though.

Patrick Lang


I don't know what a "non-binding" resolution would be in a summons to a constitutional convention. The people you are talking about are not in this. we are talking about state legislatures. pl


A while back Larry Sabato presented some good, some bad, ideas to be considered for a new CC, but now is not the time.


Patrick Lang


I don't have the reverence for Sabato that others enjoy. I have not ever since I saw him confidently prophecy that George Allen would never be elected governor after his nomination in Richmond.

As for his constitutional prescriptions the present constitution clearly says that a new convention may not amend the constitution so as to deprive any state of its equal representation in the senate. "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." pl

Adam L. Silverman


A lot of the State Legislatures seem to be captured, even more so since the recent elections, by the people I am talking about. The FL legislature for instance, which has always been just out there to begin with, because the funding system for state politics makes FL a functioning one party state, which enhances the crazy. My friend has passed this link on, with the promise of more information by Monday:

The note accompanying the link is:
"it is from 1995, but does a good job of explaining the procedure and some of the legal issues that surround states calling for a convention.

If nothing else, the legal opinion seems to be that the convention could propose all the amendments it wants, but that 2/3 of the states would need to ratify each one individually before it would become part of the Constitution (just a congressional proposed amendment would)."


It is worth pointing out that the views of Gov. Perry and those Dr. Silverman calls "thought leaders in a variety of fringe religious, social, and political movements" are so extreme and alien to traditional constitutional values that these people literally must re-invent America in order to make a home suitable for their brand of "patriotism."

Fabius Maximus

Personally I agree with you about the danger of a runaway convention. But I believe (from casual reading) that historians do not consider the original convention to be so.

For a brief see "Philadelphia 1787 was not a runaway convention", David Kppel, Volokh Conspiracy, 6 December 2010 -- "Forty-eight of the 55 delegates had instructions which allowed them to go beyond amending the Articles of Confederation."


William R. Cumming

Well my guess is no CC for many reasons good and bad. But interest in the concept is a reflection that some of the original thinking is flawed. The great compromise giving small states two senators is certainly one. My solution would be to subdivide several large states, specifically CA, FLA, and of course Texas which had the original option of becoming five states. Texas of course was an independent nation-state for seven years before joining the "Union"! My guess is demographics will result in the STATE division before this century is out. Also some state boundries would be more reasonable if redrawn. The big issues buried in the CC concept however are whether the federal system needs to be changed and the practical verdict of the civil war be reversed! That may still happen.

Perhaps incorporation of CUBA post Castro Brothers will raise some interesting issues since even a William Techumseh Sherman wanted to create a STATE out of CUBA. If Puerto Rico would finally make up its mind to be a state that might truly be a new domino!


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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (Article V of the Constitution of the United States).

Pat you have raised an interesting question. How would a constitutional convention alter our republic? I tend to agree with Mr. Madison that the constitution while far from perfect should not be precipitously amended.

There have been arguments over the years, in particular in recent years, by scholars on both the left and right that a convention would wreck havoc on the ability of our republic to function and would result in the balkanization of the United States. The left fears, that moral conservatives would insert provisions applying religious tests to holding office, outlaw abortion through the Constitution, and all sorts of others real and imagined measures. The right fears that liberals will take away the rights of people to keep and bear arms, impose the fairness doctrine, and a host of other real and imagined measures.

I tend to believe that if a Constitutional Convention were called that reasonable men and women would come together and at the most tinker around the edges. The only downside I see is if the means of selecting delegates in merely to send the elected representatives and senators of the respective states that it would be disingenuous to the process. Unfortunately, there are no men or women, of the stature of Madison, Mason, Hamilton, Franklin, or the other who represented the various states among our elected representatives and senators. The proper means would be to have non-partisan elections in each state to elect delegates to a convention.

The greatest tension in any convention will be the desire to bring proportional representation to the Senate, despite the prohibition in Article V of the Constitution; I cannot image the delegates from California not wanting to have greater influence because of population in the Senate. The current makeup of the Congress was a direct result of the smaller states desiring to ensure the balance of power was maintained between the large and small states.

The prohibition could be overcome if rather than amending the Constitution the convention chooses instead, to submit to the states an entirely new Constitution. If that was the case, I could foresee our nation breaking up into several nations of common interest.

While there are many potential downsides to a convention, it is my firm belief that in the end it would not fundamentally alter the nature of the republic, but then again I tend to be an optimists.

Douglass Schumacher

"OK. Nobody is perfect. Anything on my essential points? You don't disagree that they had not been called to create a new form of government?"

Sorry for being pedantic. Of course, you're right. Congress didn't balk and made this radical proposal official because of the sense at the time that the country was going wrong; that the greatness of the revolutionary period was being squandered. It was this as much as any specific thing (like increasing corruption in the state governments) that drove ratification. Economic mismanagement after the War didn't help. We won't go over this cliff in the next few years, but if we suffer another lost decade?

For good or ill, some opinions were not represented well at the Convention and the participants were men of considerable capability allowing effective debates and compromise. That won't happen now.

Patrick Lang


"the prohibition in Article V" A prohibition is just that.
To violate one is to risk rebellion.

Re-draw state boundaries? You think the states would agree to that? pl

Patrick Lang


Yes. But, there will be more George Masons and his colleagues among the anti-federalists. pl

Don Quijote

What would be needed is a constitutional mechanism to permit States to secede...



Your thoughts on Cuba are interesting but the US hasn't got the money to re-develop Cuba. The conservatives in South Florida missed that opportunity by supporting two foreign wars instead. Very short sighted of them. Eliminate the embargo and you will quickly eliminate Castro. That's not really the goal as the right would no longer have the lock on a large group of votes in South Florida.

Patrick Lang

Don Quijote

There is nothing in the present constitution that prevents them from seceding. pl

John Howley

Sanford Levinson is a law professor who argues for a constitutional convention from another part of the political spectrum.

Interviewed by Bill Moyers:

Norman Rogers

The attention span of the American people is too short for a Constitutional Convention. You'd have to put it on CSPAN, and after explaining it to the masses, you'd have to color-code the TV graphics and hire expensive experts to explain the who, what, why, and how.

Would it get good ratings? Nope. Hence, no way, Jose.

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