Everything You Wanted To Know About Constitutional Conventions But Were Afraid To Ask...

This is a special treat today folks, a conversation between Mike Church and Dr. Kevin Gutzman about how to implement a Constitutional Convention to stop our runaway government.



Dr. Kevin Gutzman: We want to have a convention at which we would discuss revision of the Constitution.

Mike: And is this limited to any particular articles? Is it open-ended? How is it convened? How is it conducted? There are a lot of questions that people have out there.

Kevin: Right. Well, what Article 5 says is the states, if 38 of them call it, the Congress will have to convene a convention. And the short answer is, no, the matters that the convention could take up cannot be limited. However, the proposals the convention makes would not be law. That is, they would be only proposals. So just as in 1787 in Philadelphia there was a convention that proposed what supposedly was a federal constitution, so – and then that had to be sent to the states for their separate ratification. So in case a Constitutional Convention made proposed amendments, those would have to be referred to the states for their ratification.

Now, people commonly say, well, you know, they’re just going to – Pelosi will dominate it, and Das Kapital will become the Constitution of America. I think this is really absurd. It’s the kind of scare tactic that people have taken against the idea of constitutional amendment ever since the beginning of the 19th Century. It’s extremely unlikely to the point of a vanishing amount of likelihood that having called for a convention because you were worried that the federal government was grabbing unlimited power for itself, the state legislatures would then turn around and ratify some horrible, centralizing measure that had been proposed by the convention. So myself, I am sanguine about that. And of course what this worry also ignores is, what people who make this argument ignore is that we are going to have Pelosi’s Constitution anyway. We have it right now. [Audio glitch] will do to us whatever it wants and will legislate [glitch] they like. So the idea that there’s going to be some horrible eventuality that Pelosi and Company will get what they want as the result of a process in which we try to amend the Constitution to limit their power, that assumes that they don’t get what they want anyway. Right now they get exactly what they like.

Mike: True.

Kevin: So I don’t know how it could possibly be that having this kind of a convention could make things worse. And just to give you an indication of the extent to which the current constitutional culture in the United States has given centralizers like Pelosi and Obama, that is, people who want the federal government to have authority over everything you do, every minute of your life, how they have gotten what they want through a “we’ll never amend the Constitution to correct what the Congress is doing” attitude among conservatives, let me read for you a little bit of the appendix to Milton Friedman’s “Free to Choose.”

Mike: Okay.

Kevin: Milton Friedman was the leading advocate of liberty in American economics in the 20th Century. Now, I myself am not at root a Monitorist. I mean, people who are expert in economics know that he was also the leader of what was called the Monitorist school of economics. And I think he was mistaken at root about that. But the bottom line is Milton Friedman was a very prominent libertarian in the 20th Century, somebody who stood for freedom.

Mike: Right.

Kevin: And he had a bestselling book, coauthored with his wife Rose in I think 1978, called “Free to Choose.” It was a number one bestseller for months and months. And in the appendix to that book, Friedman reprinted the Socialist Party platform of 1928. And the reason why he reprinted the Socialist Party platform of 1928 was to show us that by 1978 we were living with the Socialist Party platform of 1928. That is, every single element of it has been adopted. So plank one in the Socialist Party platform of 1928, “Nationalization of our natural resources, beginning with the coal mines and water sites, particularly of Boulder Dam and Muscle Shoals.” And then in parentheses he says “Boulder Dam, renamed Hoover Dam, and Muscle Shoals are now both federal projects.”

Number two, “A publicly owned giant power system under which the federal government shall cooperate with the states and municipalities in the distribution of electrical energy to the people at cost.” And in parentheses he says, “We’ve made a regional start on this with the Tennessee Valley Authority.” There’s actually more to it now than there was in 1978.

But anyway, number three, “National ownership in democratic management of railroads and other means of transportation and communication.” Parentheses, “Railroad passenger service is completely nationalized through Amtrak. Some freight service is nationalized through Conrail. The FCC controls communications by telephone, telegraph, radio, and television.” And of course what Friedman didn’t know in 1978 was that now the federal government feels free to wiretap millions, literally millions of Americans, without ever identifying them, without ever getting a warrant from any kind of a judge. It’s even more problematic than it was when Friedman wrote this.

Mike: Right.

Kevin: Number four, Socialist Party platform of 1928, “An adequate national program for flood control, flood relief, reforestation, irrigation, and reclamation.” Well, Friedman in parentheses says, “Government expenditures for these purposes are currently in the many billions of dollars.” And of course they’re far greater now than they were when he wrote that. I mean, I could go through the rest of this platform from the Socialist Party of 1928. But my point is, for those of you who think the Constitutional Convention idea is dangerous because we’ll lose the republic that the founding fathers bequeathed us, wake up. We already...

Mike: We lost it.

Kevin: We don’t have the constitutional republic the founding fathers bequeathed us. We are living with 20th-century socialists’ idea of what a central government ought to look like.

Mike: Well, and Dr. Kevin Gutzman with us. It’s our first crack at this. It’s called “Everything You Ever Wanted to Know About a Constitutional Convention but Were Afraid to Ask.” I might add a coda to number four, Doc. And that is, that since I live in a flood zone here in Southeast Louisiana, the only place I can buy flood insurance from is from NFIP, National Flood Insurance Program.

Kevin: Right.

Mike: Which has been taken over by the – it’s administered by the federal government. Now, your agent can broker it, but it is backed up by the full faith and credit of Uncle Sucker. Just so you know. So you can count number four in the Socialist Party Platform of 1928 as having been completed, absolutely completely. And just ask anyone in Florida how they get homeowners insurance if they live in Jupiter, Florida or below, and they’re probably going to give you a similar answer.

Kevin: Well, my point, and as I said, I could go on with the...

Mike: Right, I know you could.

Kevin: ...rest of the planks of this. But I omitted the planks about what became Social Security and Medicare and all this kind of stuff. So the bottom line is people commonly object to the idea of a Constitutional Convention by saying, oh, lord, the socialists will get control of the government. Well, you know, have you looked at the Democratic and Republican parties lately? And how do you think they behave? The idea that the federal Constitution is doing what it’s supposed to do, that it’s performing its only function, which is to limit the power of people in federal office, is absurd. You’d have to have been asleep. That you’re going to lose that by having an attempt to rein in the federal government – now, I think that if there were a federal Constitutional Convention, what they should take up should be the way the Fourteenth Amendment Due Process Clause has been interpreted, the way the Commerce Clause has been interpreted, and the notion that the powers of Congress listed in Article I, Section 8 are exhaustive.

So there’s no reason why, if we had a Constitutional Convention, we couldn’t have three amendments saying the Due Process Clause of the Fourteenth Amendment is only procedural. It includes no grants of substantive rights. That the Commerce Clause is only about trade between the states. It has nothing to do with matters that are entirely internal to the states. And of course that’s the way it was intended in the first place, but federal judges and the Congress have completely remade it so that the other day, when Pelosi was asked where do you get authority to tell people who their doctor will be, she laughed because it assumed, you know, the question had underlining it the idea that there was something illegitimate about the way federal officials have been behaving since 1937. Well, of course, as you and I know, there is something illegitimate about the way that federal officials have been behaving since 1937. And the only way to slap some sense into them is to have a Constitutional Convention. That’s it. There’s no other mechanism.

Dr. Kevin Gutzman: When you want to become an attorney, you get a law degree from an accredited law school. And then you take a bar exam. Before you take the bar exam, you take a bar review class, several weeks of cramming to learn everything about being a lawyer that you didn’t learn in law school.

Mike: Right.

Kevin: And when I took the bar review class, getting ready to take the Texas bar exam, I took it from one of the popular national companies that give this kind of a class in states all over the country. When we got to the part of the bar review course in which the instructor was preparing us for the multistate multiple choice section, that is, for the section of the Texas bar exam that was multiple choice and that is given, not only in Texas, but in various other states in the country. She told us, if one of the options you’re given is the Tenth Amendment, you know that that is always wrong. You never choose the option Tenth Amendment on the bar exam because that is always incorrect. In other words, by the time I was taking the bar review class in 1990, everybody knew that Tenth Amendment is never enforced. It is never respected. The principle that the Congress has only the powers that are enumerated in the Constitution is completely absent from, quote/unquote, “constitutional law” these days. So, you know, there’s that.

Mike: This is how we...

Kevin: And then the other possibility, besides calling on the Tenth Amendment to limit the powers of Congress, is nullification. And there are people now who are talking about nullification, which is the idea that the state governments would stand up to the federal government and prevent them from doing something. We’ve seen that tried in American history. You know, the federal government has the weapons, has the army. It’s absurd. There’s no way that nullification is going to work

Mike: So nullification is not going to work. You can’t have...

Kevin: No.

Mike: ...a citizen-led – what Kevin’s question was, could the citizens call the Convention, and you answered no. It has to be called by the legislature.

Kevin: That’s right.

Mike: So then to clarify here – and “Everything You Ever Wanted to Know About the Constitutional Convention but Were Afraid to Ask” with our special guest Dr. Kevin Gutzman here. What is needed is – and I believe there’s only two states left that need to call; right?

Kevin: I don’t know what the current number is.

Mike: There’s 34.

Kevin: I’ve read varying accounts of that.

Mike: Okay. Well, we can get an inventory on that, is to get to 38 states, three quarters of them necessary or needed to call the convention. And then the next question is, before I get back to your phone calls at 1-866-95-PATRIOT, my question, here’s the one that I have. So the state legislatures will then, I would assume, much as Madison and Hamilton were able to convince the various state legislatures and assemblies in 1787 to send delegations, they would then appoint delegations to go meet in a central place, say it’s Kansas City or wherever, and they would hold this convention. Is that how – that’s how you would envision the pragmatic, actual workings of it would take place; correct?

Kevin: Yes. It’s just a carbon copy of the process that yielded the Philadelphia Convention that wrote the Constitution in the first place.

Mike: Okay. So we may need to have a failure, then. We may need to go to Mount Vernon and lose. We may have to go meet in Annapolis in a bar and not accomplish anything other than commit that, okay, we’ve got to go back and redouble our efforts because they tried twice. Well, Maryland and Virginia tried to meet. And then Madison and Hamilton tried to conspire to get it together in Annapolis, and of course they were successful. But unlike Madison and Hamilton, though, let’s set the record straight, too. We learned this in “The Fame of Our Fathers” and learned this in Dr. Guzman’s books and in my movie, “The Spirit of ’76.” The advertised purpose for that convention, Dr. Gutzman, was amending the Articles of Confederation; right?
Kevin: Right.

Mike: And we wound up with an entirely new plan of government. Which we’re not seeking here.

Kevin: Again, the bottom line is, well, of course, in a sense we are seeking an entirely new plan of government. It depends how you want to look at it. If you want to say we like the original frame of the federal government, and we’d like to see it actually implemented, or if you want to say we’d like to have a different government from the one we actually live under, we’d like one that looks more like the one the founders gave us. So I guess you could say it’s new, or you could say it isn’t, whichever way you want to look at it. But, yes, it’s true that in the first place, people like Madison and Hamilton wanted to strengthen the central government. And we’ve had three major episodes in American history when the central government was drastically strengthened. One was when they ratified the federal Constitution. One was at the time of the Civil War and immediately after. And then the third one was the so-called Revolution of 1937, which was really the culmination of things that had been going on for 15 years before that.

So we live today under not the Constitution of 1788, but the Constitution of 1937. And we’ve seen where that’s taken us. We have an absolutely unbridgeable gap between the federal government’s revenue and its obligations. And the gap is growing as people in federal office see that every incentive for them leads to more spending, more borrowing, permanent enserfment of our descendents. I think that’s why this is the first time we need a formal effort drastically to reduce the power of the central government.

Mike: I concur. Curt is in Ohio with a great question, next up here on “Everything You Ever Wanted to Know About Calling a Constitutional Convention but Were Afraid to Ask.” The time has come, my friends. Curt, how are you?

Curt: Good, sir. How are you?

Mike: Fantastic. What’s your question?

Curt: My question, I think we already answered. Originally my question was, once the convention is convened, I’ve heard rumors that the entire document is at risk at that point, where anything could be amended by the convention. Is that correct?
Kevin: No, the convention can’t amend anything. This is a very important point.

Mike: Okay.

Kevin: The convention would be called to make proposals. But if there were going to be any actual amendment adopted, it would have to be adopted through ratification by the states. So it would take 38 states then to amend. That’s why this idea, this scare idea that people are floating out there, that there’d be a coup d’état, and we’d end up all singing the Marseilles, or May 1st would be our new national holiday because we’d all be wearing red all the time, this is just inaccurate. A convention cannot actually change the Constitution. It can make proposals. So if they came out of the convention with a proposal, you know, let’s get rid of the Congress and have a military government, bang, you’re stuck, that’s not what could happen. All it could do would be make recommendations to the states for their ratification. And again, I think that a Constitutional Convention that grew out of a movement to reassert state governments’ Tenth Amendment rights is highly unlikely then to say we want, you know, Nancy Pelosi to be our queen. That’s just not going to happen.

Mike: Right. And I get this question a lot, too. “You don’t know what you’re – this is dangerous.” But as you pointed out, and I think this needs to be part of the recap that we’re going to post online on our website, you can hopefully help us get it linked up on some other popular sites, that – and this is something that I’d never heard before. But that document that you cited that was in Friedman’s, the appendix to Friedman’s book, how much more evidence or how much more destruction, ignorance, and outright – what’s the word when you violate your oath? I mean, I get calls all the time, Kevin, from “Are they committing treason when they violate their oath, and they do this to the Constitution, and they do that?” And I always say, well, no, they’re not really conspiring with the enemy. They’re not making war with the enemy against us here. But yes, they are violating their oath. And apparently there is no penalty, and Bill Clinton can attest to this, for perjury anymore.

Kevin: Well, he paid a $90,000 fine and was disbarred for five years. So I guess that was some kind of penalty, although of course it was not nearly so stiff a penalty as you or I might have paid if we had been found to have done exactly the same thing as he did. Let me read you a little bit more of this Socialist Party platform of 1928 from the back of Milton Friedman’s “Free to Choose.” Plank nine, “A system of health and accident insurance and old-age pensions, as well as unemployment insurance.” So people who say, wow, we’re going to have socialism if we have a Constitutional Convention, plank nine is what they’re voting on in Congress right now. This is what they think they’re empowered to do by the current federal Constitution. In other words, they completely ignore the limitation on the powers of the central government that were supposed to have been created by the Constitution. And they are writing into law the Socialist Party platform of 1928.

Mike: Amazing.

Kevin: The whole thing is going to be what we live with. So people who say, oh, no, we can’t have a Constitutional Convention because it’ll mean the death of our beloved Constitution, signed by Washington and Franklin and Adams and, I mean, and Hamilton and Madison, you’re wrong. That frame of government is long gone. And what we’re talking about here is the question, is there any way to bring it back? Is there any way actually to have a limited decentralized government in which most decision making is done by elected state legislators? And I’m saying the only mechanism that the Constitution provides is the Constitutional Convention. There’s no other way effectively to limit the powers of Congress.


Want to learn more about Dr Kevin R.C. Gutzman(He received his BA, MPAff, and JD from the University of Texas and my MA and PhD in American History from the University of Virginia) and the real facts of the constitution from a real Constitutional Scholar?

I would suggest you read a couple of his books in the matter:
The Politically Incorrect Guide to the Constitution...
Who Killed the Constitution?: The Federal Government vs. American Liberty from World War I to Barack Obama...
Virginia's American Revolution: From Dominion to Republic, 1776-1840...

Its always refreshing to have a debate and actually have facts to back up your arguement....

I have to thank my good friends Mike and Kevin for this keen insight to the constitution