The New Yorker is clueless

Stu McPhail of the BBA Task Force has delivered a rebuttal of a seriously muddled article in The New Yorker.  From Stu:

The March 13 issue of The New Yorker carried a piece by Jelani Cobb that unfortunately included a lot of misinformation.


The story appeared under the title “Republicans and the Constitution” and also under the title “A State Away”.  It was written based on the premise that current Article V efforts are being run by Republican power brokers.  Wrong!


Most current efforts to use the powers given to Americans in the second option of Article V by our Founders are by grassroots everyday citizens.  Most of the efforts operate with minimum financial support.  And, many of these efforts are seeing bipartisan support at the state level.


While it is true that various members of Congress have introduced resolutions calling for a balanced budget amendment under the first option in Article V, the real current action is under the second option in Article V… the option of having a state-led convention to propose a balanced budget amendment.


Twenty-nine state legislatures have now adopted resolutions for such a convention.  When that convention takes place the actual wording will be debated.  Unlike what Mr. Cobb said, the finished proposal is sure to include a provision where under Congress can bypass restraints in times of national emergency.


The biggest line of misinformation in Mr. Cobb’s piece dealt with the origins of the 1787 Constitution under which we live today.  Cobb writes that the Confederation Congress called the convention of 1787 in a resolution they adopted on February 21, 1787.  That’s how he concludes that the Constitutional convention went beyond their assigned task and “literally took the law into their own hands and drafted a new document”.


But the Constitutional Convention was not held under the authority of the Articles of Confederation nor the Confederation Congress.  It was held by agreement of participating states outside the Articles.  Neither Congress nor the Articles controlled the proceedings, either legally or practically.


He uses that misinformation to conclude “that an Article V convention would find it difficult to limit its agenda to the technicalities of budget finance.”  He buys into the long-discredited notion that an Article V convention cannot be trusted due to fear it will run away.


The convention wherein our Constitution was drafted was originally called by the state legislature of the Commonwealth of Virginia in December 1786 in response to the recommendation of the Annapolis Convention the previous September (September 14, 1786).  Virginia appointed her commissioners to the convention by legislative resolution on Dec. 12.  New Jersey agreed to participate at about the same time.


The Virginia call provided for the convention to propose changes in the “federal constitution” without limiting the gathering to amendments to the Articles.  The unanimous authority of 18th century dictionaries tells us that “constitution” in this context meant the entire political system, not merely the Articles as such.


Pennsylvania announced on December 30 that it would participate.  North Carolina and New Hampshire agreed in January.  Delaware joined on February 3.  Georgia joined on February 10.  Thus, seven states already had agreed to participate under terms granting the convention wide powers when Congress passed its resolution on Feb. 21, 1787.


That month a Congressional committee recommended that Congress endorse the convention, saying that “in the opinion of Congress it is expedient” that the convention be limited to proposing amendments to the Articles of Confederation.  It was only an expression of “opinion”, not a directive.  But, as indicated above, by then seven of the 13 states had already agreed to participate in the convention as called by Virginia, and had broadly empowered their commissioners (delegates) to consider changes in the political system.


As we all know, the Confederation Congress sent the proposed new Constitution to all 13 states for their consideration, and ultimately all 13 states ratified the new document.


Efforts to bring about a state-led Article V convention to propose amendments (regardless for a balanced budget amendment or a Congressional term limits amendment) are NOT simply partisan.  They can’t be.  It takes 38 states to ratify any proposed amendment.


Cobb says, “an idea should have demonstrated broad and transparent appeal before it is adopted into the framework of the republic.”  On that we agree.  But his conclusion that “causes worthy of legitimacy” can come about through Congressional action is simply naïve.  Congress will never act in a meaningful way to restrict its spending powers or to restrain its own terms.


Stuart MacPhail

1133 Race Street

Denver, Colorado 80206



The facts related to the 1787 Convention comments above were based on the published research of respected Constitutional scholar Robert Natelson, Independence Institute.

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