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Reprinted with permission from the Tradesman;
Tim Baldwin explains it so much better than me at;( http://articlevprojecttorestoreliberty.com/not-a-constitutional-con... ) But I wish to weigh in also.
For those of us who think an Article V Amendment "proposing" Convention would lead to a runaway Constitutional Convention think about what the Article V convention really is. I did not create the description of Amendment "Proposing" Convention, Many Real constitutional Scholars coined that definition as being the most correct.
The prime opponents of an Article V convention are the very same professional politicians in Congress who have used the amendment process to entrench themselves in the halls of power, and have usurped and stolen the states rights, by removing the original checks and balances the Constitution provided to prevent just such things as that from happening, through their exclusive Amendment additions.
These politicians and their scholarly toadies have been using Americans fears that it will "Open Up The Entire Constitution" That is a false premise geared to scare Americans into silence and complacency with what the self appointed rulers decide to do. One of the most Anti-Article V people is Publius Huldah, ( http://publiushuldah.wordpress.com/ ) Here is what she thinks about the Article V Project site; In a quote from her own site she says; "A contemptible website which goes by the name, “The 28th Amendment Article V Project to Restore Liberty” has posted links to MY website thus creating the false impression that I am in agreement with their despicable, ignorant, wrongheaded, idiotic, evil, contemptible, clamoring for an Article V convention." Sounds to me she is more akin to the Progressives and their tactics than she is to her purported fight to restore Constitutional Law and the Republic. Maybe that's too critical but I don't take obnoxious attacks like this lightly.
Here is another quote from her own blog; What Article V Really Says
“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…” [boldface mine]
Note that Congress “calls” the Convention. The States don’t “call” it – all they can do is apply to Congress for Congress to call it. I see that she conveniently skips over the fact that the operative word "SHALL" in context in that statement, is a clear directive 'ordering' the Congress to call the convention, not Applying to have one, but in fact Ordering Congress to call one, even if Congress does not want to do that. Then it is the states and the people themselves who propose Amendments with Congress relegated to the sidelines. I can see where this would scare the politicians because of the loss of control over their own power structures, and the potential the people would take back those usurped powers.
In another quote from her site, Publius sends out a dire warning ;
Make no mistake: these evil people want to get rid of Our Constitution and replace it with a new Constitution which I promise you you will not like. With this statement Publius alludes to the 'evil people' being anyone who wants to originate an Article V Convention, and completely completely ignores the fact that 38 States must Ratify any New Amendment the same as if Congress proposed it. This attitude as expressed, is verging on deliberate fear mongering. The warning in that statement is not possible, because the original Constitution will not be opened up for change by an Article V Convention. Mainly because an Article V is not a Constitutional Convention! So far all the changes to the Constitution have been at the behest of a Congress, and that has created a Constitution that we don't particularly like as far as Amendments changing it from it's original intent to what it is now goes. Especially the 14th, 16th, and 17th, Amendments Congress itself proposed and had ratified, and that only have benefited expansion of the Federal Government and its invasive push into every aspect of American lives.
Most Constitutional Scholars agree that the Framers, when they added the provision for an Article V Amendment Proposing Convention, did so because they realized that Congress could not always be trusted to work in the best interests of the people. Within the last Hundred Years Congress has proven it has devolved to that viewpoint the framers had.
I will agree with the position that Publius has about restoring our Constitution by requiring Federal and State elected officials to obey the Constitutional laws or failing that, by electing someone who will do that. That covers only half of the problem we face. We are in the throes of a Constitutional Crisis right now and we have many elected officials who do not even care to pay lip service to the concept of Rule By Law as codified by the Constitution.
So, I contend we need to combine our efforts and Require Elected or Appointed Government Officials and entities, to obey Constitutional Law or replace them. However that does not correct the weakness that mankind has to grab more and more power for themselves. Knowing that we must also remove the critical Amendments Congress installed in the Constitution and prevent anything like them from being slipped past us again. An Article V Convention is the way to start that process by proposing the stated 28th Amendment to repeal the 14th, 16th, and 17th Amendments. It could also be used to propose a properly worded Balanced Budget Amendment, A term Limits for Congress Amendment, and even an Amendment that would remove all Federal gun laws and regulations that infringe on the Second Amendment and clearly state the meaning of Militia encompasses all American Citizens.
Most people will not see the reason for removing the 14th Amendment, so let me try and make a case for that;
Lets post the Amendment in it's entirety here for reference purposes;
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
As everyone should know, the 14th Amendment was put in after the civil war primarily to insure the rights of freed Black Slaves and guarantee them their rights as citizens. Surreptitiously it was enacted because it repealed the three-fifths compromise and would have given the Democrat Dominated Southern States much more power to enforce the doctrine of States Rights with the Federal Government kept to Constitutional levels.
The schism started when President Andrew Johnson who was an old style Jacksonian Democrat and Staunch States Rights supporter vetoed the 1866 civil rights Act, causing the pro strong central government supporters in Congress, to seek Constitutional guarantees for their agendas and starting the erosion of States Rights.
Lets take section 1 first. this section applies to the Anchor babies now and has since the 1965 Immigration act and automatically makes them citizens who pull in the mothers and eventually other Relatives. Usually the mothers are classic Illegal Aliens. This affects States rights because it skews the Congressional districts and causes seats to be lost by some States and gained by others. It also affects the Electoral college in the same manner. This is because the seats in the House of Representatives is fixed at a maximum of 435 ( more information on this later).
Now one needs to see the 14th in it's original light. The United States did not limit immigration in 1868 when the Fourteenth Amendment was ratified. By definition, illegal immigrants and their children's citizenship was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent, totally inadvertent and unforeseen result of the amendment, and the Reconstructionist period in which it was ratified. However it fit right in with the Progressive ideology of the LBJ administrations 'Great Society Concept' and is a crucial point of current immigration reform wanted by today's Progressives to maintain their voter supremacy.
The 14th Amendment was ratified in 1868 to protect the rights of native-born and recently freed Black American Slaves. It was written like it was, to prevent state governments from denying citizenship to blacks born in the United States. Since the United States had no immigration policy, there was no reason for it to be addressed in the amendment.
The intent of the amendment was explained by Senator Jacob Howard in 1866 who said , "Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country." Notice the separate definitions he exempted that modern day politico's have deliberately mis-interpreted and included that led to the fiasco with 'Anchor Babies'? Specifically Foreigners, Aliens, and those who belong to families of Ambassadors or Foreign Ministers.
In agreement with this doctrinal explanation, Senator Edward Cowan stated; "[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..." this in and of itself should have been enough to stop the Progressive deliberate mis-interpretation of the limits of the amendment.
Lets look at the Supreme Court Decision on this from that time period. Over a hundred years ago, the Supreme Court ruled the restricted interpretation of citizenship in the 1884 Elk v.Wilkins case, the phrase "subject to its jurisdiction" was interpreted by the Court to exclude "children of ministers, consuls, and citizens of foreign states born within the United States." ( bold type and underlining mine). In actuality, the Court ruled the status of the parents determined the citizenship of the child. To qualify children for birthright citizenship under the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction. Effectively, they must be United States Citizens.
This ruling was again reaffirmed by The Citizens Act of 1924,enacted to address the American Indian citizenship that was denied in the 1884 Elk v Wilkins case, and codified in 8USCSß1401, provides that: The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States and subject to the jurisdiction thereof; (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.
Currently in deference to the 1965 Immigration Act the status of citizenship is conferred on the children born here of illegal immigrant mothers. While this is current practice, this practice has never been ruled on by the Supreme Court.
Next, lets look at how the 14th Amendment directly affects States rights with the mis-interpretation of section 1 taken into account.
I assume everyone knows about how apportionment works. But here is a brief synopsis; The US Census has been used since 1790 as the basis for the United States representational form of government. As the population grew the number of members of the House of Representatives grew. In 1911 the maximum number of Representatives was fixed at 435. Using the current census districts are reapportioned every ten years. The number of Districts apportioned to the States are made in accordance with Title 2 of the US code. During the 1960's, the Supreme Court ruled on many cases that Congressional and State districts needed to be essentially equal as far as population numbers go. In 1964 is Wesburry v Sanders that Congressional district boundaries were based solely on population.
Here is how the mis-interpretation of the 14th Amendment affects States rights and the rights of citizens to have the concept of one person one vote. So based on population and the fact that the maximum number of seats is set at 435 if a State gains a district due to population expansion another state will lose a district.
Now we come to the crux of the matter. States with larger illegal populations will usually end up with more districts, and that dilutes the votes of States with lower populations. This is really important in Presidential elections because the Electoral College is based on the size of the Congressional Delegations.
As an example, in 2000 the number of illegals in different States caused Michigan Indiana and Mississippi to lose one seat and Montana to not gain a seat. In fact nine seats were redistributed That is one of the ways that the 14th Amendment infringes on states rights and affects Americans negatively.
First see (http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights ). This was the first power grab by the federal government to nullify States rights and Prima Facie it looks like a good requirement, but in practice it is used to suppress the will of the people of a state through legal force. It was also the precedent that allowed the Federal Government to ban Christmas Displays or the Ten Commandments from all government property, and is being used in common core school indoctrination, to prevent school children from displaying Christmas Cards. It even allowed Madelyn Murray O'Hare to get prayer banned in schools.
Next see ( http://en.wikipedia.org/wiki/Substantive_due_process ). This gives the Federal Government the right to protect 'fundamental' rights the Supreme Court recognizes as those enumerated in the Constitution and existing prior to the United States coming into being. Again Prima Facie they are right and proper, unfortunately because of the 14th they can be manipulated to serve another purpose, such as allowing for guilty parties being set free because of a technicality or of an honest mistake in procedure during an arrest, and even ignoring valid evidence because of improper (by fiat Supreme Court decree) collection procedures.
Next see ( http://en.wikipedia.org/wiki/Procedural_due_process#Procedural_due_... ). Procedural due process is also contained in the 14th Amendment and basically is the concept of Fundamental Fairness equally applied to everyone. In 1934 the Supreme Court ruled ( Snyder v, Massachusetts, 291 U.S. 197,105 (1934)) that " If a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". Who usually makes the decisions on what is so rooted? I'll give you a hint; It's not the States.
Finally to back up a bit, In 1873, a Supreme Court essentially nullified the key language of the 14th Amendment that guaranteed all "privileges and immunities" to all US persons, in a series of cases called the Slaughterhouse cases. In so doing, they set up a system that allowed post-emancipation racial discrimination to continue largely unabated.
Seeing the 14th Amendment has been used contrary to it's purpose and used to enhance growing the Federal Government authority over the States you can see why it needs to be repealed to remove that legal hammer from the politicians who had not been intended to have it in the first place.
So as I see it the people who fear an Article V Amendment Proposal Convention have no reasons to fear it because it is ultimately governed the same way a Congressional Amendment Proposal convention is governed with 3/4 of the States required to ratify any proposed Amendment. Besides with the proliferation of Socialist leaning representatives in congress what makes those people not fear that an even smaller and more easily controlled and organized group would not stoop to changing that constitution into something the people would hate. In my estimation, we need this to restore balance.
There is even talk of repealing the term limits for the President so Obama can keep running until he loses an election. What would stop the Congress if it again had a Super Majority of Progressive Gun Grabbers deciding to propose an Amendment to restrict the Second Amendment through an Amendment that would classify Militia as a Federally controlled and sponsored group for Constitutional purposes and eliminate private ownership of guns?
The fact remains, we need to do something quickly that will reasonably insure the brakes are put on further Federal Government expansions, and start the process of stripping the usurped powers and returning them to the States. The Constitution was never intended to restrict the states, it was formed to restrict a Central/Federal Government from unilaterally expanding it's size and powers. The most reasonable and certain way to do that is to order Congress to call an Amendment Convention and then step back and let the people decide what needs to be corrected to support the peoples interests over the governments.
Information from Mangus Cocorado;
Copy the brochures and email to all your friends and ask them to email them to their State Legislators, their friends across the USA - this can make the appointments not matter for the Court will be placed back under the LIMITS of Article III of the Constitution -oh by the way it will take all the income tax from DC and make the Senators be appointed by the State Legislatures as the Founders, Framers and Ratifiers designed.
Come on make this a very special Christmas send this very strong medicine to our rather sick friend - THE REPUBLIC FOR WHICH WE STAND.
For those that are interested in our Constitution and History this library is big and free . .