Will an Article V convention save or entomb America’s liberty?


Alan Keyes

Phyllis Schlafly was in good form in an article she wrote in April decrying the push for an Article V Constitutional Convention.  She rightly observes that, despite the disclaimers of the supposed conservatives who are backing the idea, it would be hard to keep it from being hijacked by people seeking, for example “a dramatic takeaway of our current Second Amendment right to own guns for personal self-defense.” Given her historic role in thwarting the passage of the so-called “Equal Rights Amendment” (ERA), Mrs. Schlafly speaks with well-earned authority when she foresees a push to revive it in order “to make it unconstitutional to deny a marriage license ‘on account of sex.’”

Schlafly notes the fact that Justice Antonin Scalia, despite his reputation as a conservative, “said he would like an amendment to make it easier to pass more amendments…”  For principled conservatives (i.e., those who understand the importance of respecting the self-evident truths that are the basis for self-government, of, by and for the American people) this statement gives reason to question Justice Scalia’s commitment to conserving the Constitution’s integrity. For it is as the Psalmist says: “If the foundations be destroyed, what can the righteous do?” (Psalm 11:3)

All this reveals what lies at the heart of the extraordinary danger the push for an Article V convention poses to the survival of the republican form of government established by America’s founders.  The first act of the American people was “to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them….”  To justify their action, they pointed to the self-evident truth that all people “are endowed by their Creator with certain unalienable rights” and that “to secure these rights, government are instituted among men, deriving their just powers from the consent of the governed.” Who are “the governed”?

At the time the statement was made the people of the United States had not yet consented to the establishment of a national government.  The Confederation government did not come into effect under the Articles of Confederation until Maryland’s legislature ratified the Articles on March 1, 1781.  Up to that point there was no government over the whole people of the United States as such.

So at the moment when the Declaration of Independence speaks with the voice of the whole people, to what government are they referring? In the Declaration the people refer to the laws of nature and of nature’s God.  They appeal to the authorship of the Creator.  The Creator is the ruler whose standard of right, applied in and through His provisions for human existence, authorizes and impels all human beings to take such actions as are essential for preserving and fulfilling their nature.  Since their activities are right, according to God’s will for human nature, human beings who carry on such activities are engaged in the exercise of right, as authorized and protected by the “divine Providence” of the “Supreme Judge of the World”.

The Declaration of Independence mainly consists in a recitation of facts intended to establish that the British Government had acted to usurp, thwart and suppress the people of the United States as they went about their exercise of right in various ways.  In this sense, the people of the United States are in the right.  Their right actions are evidence of their consent to act in conformity with “the laws of nature and of nature’s God”.  By their actions they therefore acknowledge God as their sovereign, by whose will they are governed. In this way, the internal logic of the Declaration makes sense of the phrase “the consent of the governed”.

The Declaration’s logic depends on the Creator’s authority. The people of the United States appeal to His authority in order to substantiate their claim that “these United Colonies are, and of Right ought to be Free and Independent states…absolved from all allegiance to the British Crown.”  The authority of the Creator is therefore the first and most fundamental of what Madison calls “the fundamental principles of the Revolution”. (Federalist #39) He goes on to say that it is in light of those principles that  “the plan of the convention”, i.e., the proposed  Constitution of the U.S. government, was devised and must be evaluated.

In our day, what has become of respect for this first premise of America’s liberty, and for the “fundamental principles of the Revolution” that depend upon it?  A substantial majority of the American people still acknowledge the Creator, the sovereign God whose activity promulgates “the laws of nature and of nature’s God.”  But there are others who believe that their own wealth, power or claims of scientific expertise naturally make them the nation’s “ruling elite”.  These elitists by and large reject the principles of the American Revolution.  They acknowledge no will but their own will to power.  They see no justice but in measures that reflect and realize that will.

The outstanding people who approved the American Declaration of Independence, as well as those who later gathered to frame a constitution for the United States, rejected this arrogant elitist mentality.  They did so despite the fact that it was, and had ever been, the prevalent basis for government, not only in their time, but throughout the history of humankind until their time.  They relied instead on a concept of right that was egalitarian in nature, insofar as the path of right laid out by the Creator is naturally open to all human beings who conscientiously choose to follow it.

The chosen representatives of the United States of America’s founding generation realized that the faith, character and circumstances of the American people constituted a Providential opportunity to apply the naturally egalitarian concept of right in order to establish the rule of the people as a whole.  They sought to devise a framework whereby government would be constrained to respect the decent pursuits, activities, and achievements of individuals who choose to exercise the unalienable rights endowed by God); but whereby, in turn, such individuals would be constrained by the rule of God’s justice.  They would therefore have to eschew any presumptive claim to rule over the whole society on account of their achievements, except by and with the consent of the people.  The people were, in their own right and judgment, presumed to be governed by God’s rule, on account of the common declaration and exertions they made to that effect when their society asserted its independent existence as such.

Given what is, for the most part, its evidently self-willed and corrupted character, what hope is there that America’s present corps of outstanding achievers (which I refer to as the elitist faction) will respect the equitable intention of America’s founders?  That intention was unique in the history of humankind. Sad to say, the truly moderate character of the outstanding public figures who shared it was also unique.  In our day, the elitist faction is casting aside all moderation, along with the God-endowed standard of judgment that makes it possible. Relentless war is now being waged against every root and branch of the faithful moral reasoning that was the fruitful and primary instrument of this moderation. Powerful technologies that could to be used to sustain and implement America’s character for self-government are instead being abused to promote every philosophy; every ideology; and every semblance of religion that contradicts that character and therefore tends to break it down.

Justice Scalia’s impatience with the challenges the Framers built into the Constitution’s Amendment process is symptomatic of the self-satisfied disrespect for the enduring wisdom of the founders that now pervades the whole elitist faction. Those who purposely, or inadvertently act in this pervasive spirit may claim that the Constitution has been overtaken by events, but it is their ambition corrupted elitist spirit that mainly casts doubt on the future of self-government of, by and for the American people. How will an Article V Constitutional convention avoid the influence of this pervasive elitist spirit?

Unless it is avoided, what will prevent such a convention from becoming the instrument that, once and for all, severs the American people from the instructive, Providential moment in which the success of their self-government is rooted?  Isn’t the possibility of radically cutting down the tree of liberty in this way the real reason there is so much enthusiasm for an Article V convention from otherwise supposedly disparate elements of the elitist faction? Given the elitist faction’s present stranglehold on the electoral process, what is the likelihood that the people chosen to participate in the Article V convention will reflect the God acknowledging common sense of the American people, rather than the God-rejecting, ambition corrupted spirit of the elitist clique?

Americans still loyal to liberty need to think this through.  Instead of embracing schemes that will open the door to possible dismemberment of their constitutional liberty, they should demonstrate that they are determined to revive the Constitutional and political processes intended to represent, rather than manipulate, repress and betray, the consent of the governed. Otherwise, it becomes more and more probable that an Article V convention will write the epitaph of the American constitutional republic.

Tragically, it will be composed in a way that leaves nothing to memorialize the place of its entombment except the restoration of a tyrannically totalitarian and elitist form of government, destined to erase from human memory any remembrance of the fact that a government of, by and for the people once arose, and briefly flourished to encourage the hope for equitable liberty in decent people everywhere on earth.