ARTICLE V - A VERY REAL AND PRESENT DANGER
By Paul L. Nally
December 20, 2014
A Sovereign State’s Prerogative and a Congressional Duty.
Is There a Better Way?
From as Socratic a perspective as possible, it is imperative that Article V, as it is written, be understood to be what it is and what it is not!
Article V is the LEGAL AUTHORITY (remember the Rule of Law?) by which our Constitution may be amended, a word of very specific meaning. It is NOT a Legal Authorization for a Constitutional Convention where the Articles of the entire document could be scrapped and totally rewritten, but it does provide alternative methods, one of which is a Convention of States, considered here. And, in considering the nature and effect of any amendments flowing therefrom, they MUST be rejected if they fail to maintain, heighten or greatly enforce the inalienable rights of man.
THE APPLICATION (a petition to Congress) - A decision to Petition Congress via an Application for the Call of a Convention of the States ONLY for the purpose of considering amendments is exclusively the Prerogative of at least 33 States (34 if you count the District of Columbia, which I do not as it is not a “State” as defined in our Constitution). This Article V power is an enumerated RIGHT of each State.
Upon prior consultation and negotiation between the several States concerning their agreement as to the amendment(s) necessary to be considered, the number of delegates, and instructions to be given their delegate(s) as to the use of the acceptable rules governing the proceedings of their delegates, each State, by an act of its Legislature, shall issue, individually or collectively, a Petition to Congress which may set forth some or all of those agreements, but, in any event, shall state, with particular specificity, that their mutual Petitioning is for the sole and exclusive purpose of considering amending the "Constitution of the United States" pursuant to the authority recognized in Article 5. There is no, NO, requirement that Congress be informed of any particular amendment proposed to be considered.
THE CALL – As is customary, a “Call” is properly a written document issued under an authority which provides notice to another of a meeting for a purpose, commands the presence of the other, and sets forth the date, time, and place of that meeting; other information may be included.
This Call is different.
With due deference to Ms. Publius Huldah’s standing, I must respectfully disagree with her characterization of the “call process” ["MARK LEVIN REFUTED", Publius Huldah, September 21, 2013, NewsWithViews.com]. In the case of an Article V Call, this ‘Call’ is NOT notice under the authority of Congress to command the presence of others at a date and time certain for a specific purpose; rather it is a Constitutional Duty of acknowledgment by Congress of the notice under the constitutional authority of the States of their intent to perform a constitutional duty.
Once this notice has been served upon Congress, the congressional duty imposed is simple; to ascertain if 2/3 of the states have submitted Application(s) and are they for the statutory purpose, if so, send an acknowledgment and call it a “Call”. Nothing more. If those first two simple task are in the affirmative the “Call process” is accomplished by the issuance of a Joint Resolution of Congress which acknowledges that Congress has been served with notice by Application of the States’ Right to convene by the requisite number of States, that the Congress has been served with notice of the intended constitutionally mandated specific purpose, and that those States are authorized by the authority of the Constitution (not by authority of Congress) to proceed for the purpose defined. This Congressional acknowledgment of the States’ Right is then sent to the Governors of the several states.
It must be noted here, and noted clearly, that Article V, in this instance, demands an Administrative or Ministerial Duty on Congress, NOT a Legislative Duty! The reason for this distinction is for the purpose of providing Notice of Immunity of Congressional members.
The issuance of this “Congressional Call” is the exclusive legal, non-discretionary, self-enforcing DUTY of Congress, and the Art. V language is definite and explicit; Congress has NO discretion to deny it or to unreasonably delay it beyond that time necessary to determine the requisite number and stated objective of the Application(s).
THE ORGANIZATION OF THE CONVENTION - The organization of a Convention of States is exclusively the authority of the delegates once assembled consistent with the instructions of their respective state legislatures. Stare decisis from the organization of the Federal Convention of 1787 would indicate the modus operandi therefor.
Each House of Congress, consistent with its own rules of practice and procedure concerning the movement of a resolution through its respective committees, subcommittees, and to the floor for action, is without, and does not need, and may not legally enact, under the Necessary and Proper Clause any Conditions of Approval or Issuance and may only acknowledge the propriety of the Application(s) and issue the requisite Congressional acknowledgment that those States are authorized by the Constitution to conduct their Convention. Consistent with the precise and limiting verbiage of this Article, Congress is without statutory authority to set a date, time, and place for holding said Convention and without authority to order any particular amendment be considered, or in any way seek to administer or control those proceedings as these are to be left to the sole discretion and agreement of the States to be carried out by their delegates. If these issues are stated in the Petition of the States, they may be referenced in the Congressional Call.
In Dr. Vieira's article (PRUDENT FEAR OF THE UNKNOWN IS NO “FALLACY”, Dr. Edwin Vieira, Jr., Ph.D., J.D., NewsWithViews.com, October 16, 2013) there is raised the specter as to congressional abuses which, though possible, would run afoul of the Separation of Powers Clause (Amend. X). Article V specifically states a broad State’s Right which is superior to Congress, and an exceedingly narrow Congressional Duty; and no other authority is either granted, contemplated, or implied to Congress in the Article V language.
Dr. Vieira's suppositions as to what could happen by Congressional intervention and why Congress might want it to happen are, in a Constitutional sense, a very real and present danger. However, such an attempt would be immediately met (or should be met) by litigation requesting the Supreme Court to issue processes in the nature of Writs of Mandamus, Prohibition, Procedendo and / or Declaratory and Injunctive relief based upon delay or Ultra Vires acts of Congress in violation of the Reserved Powers Clause (US Const., Amendment X). This relevant part of Article V is purely and simply an acknowledgement by Congress of a superior State’s Right, but its implementation and its exercise demand the eternal vigilance of the people and a determination on their part to take any and all actions necessary to prevent the abuse of it.
Any group of congressmen, Senators or Representatives, in sufficient numbers to block the passage of such Resolution for any reason other than failure to comply with strict statutory language would be subject to sanctions, impeachment, and civil and/or criminal prosecution for failure to comply with their oath of office. No Federal Codified Statute, rule, or regulation could be interposed to prevent or delay the passage of said Resolution without subjecting the offenders to civil or criminal prosecution.
As to the Convention itself, any attempt to rewrite the entire Constitution would subject the delegates, also, to ultra vires Court review in a civil or criminal proceeding, and ANY proposed amendment, believed to contravene any protectable guarantees (prior to or after submission to the 50 state legislatures) may be the subject of a legal challenge and an injunction in a court of competent jurisdiction. Such a legal challenge may be brought by any citizen or group of citizens, a delegate(s) of the Convention, or by a State(s) or any group thereof. Still, given the personal experiences with the political mindset of Governors, Legislators, Judges, and Lawyers there is cause for no small amount of concern
Though I view the Article V preogative of the States as a reasonable and civilized method for the citizens of this Nation to manage their Government, I am saddened to note that in this Nation at this time we have no known Franklins, Jeffersons, Washingtons, Adams, Madisons, Hamiltons, etc. That alone is cause for considerable trepidation.
Though there are sound constitutional arguments supporting the use of the Militia to enforce Federal compliance with constitutional mandates and the Nullification Process by which Governors and Legislators could refuse to comply with corrupt federal dictates, both are, at the juncture in human history, unsound. The reason for this is simply that, at this time, the Militia has no qualified, conscientious, and dedicated leadership which could only result in at least a repeat of Kent State, and at worst, a full blown armed revolution. As for Nullification, that too suffers from the same malady of Leadership; not that there are none qualified, rather, based upon provable facts, there is a rampant corruption in the present leadership willing to bow to the Federal corruption at the state level. To paraphrase a most poignant thought by Ms. Huldah, it is idiotic to assert that you can rein in a federal government which ignores the Constitution by relying on corrupt State officials who do the same!
The bane of our present circumstance may be laid to just one proximate cause, and no, that is not the lethargy, indolence, or indifference to ignorance of the citizens of this Nation; Education is the culprit.
Far too many generations have passed since children were taught to read and write by referencing our Declaration of Independence or the Constitution of the United States, or the Constitution of your state, and for too long have children been daily tutored without instruction on how to properly think and have endured a total lack of imparted understanding of the Rule of Law. That deprivation of knowledge and understanding necessary for a graduating child to go out into the world prepared to become a responsible citizen, capable of thinking and acting for himself as one ultimately responsible for the management of his government, has slipped into nonexistence, unnoticed by our fathers until the time now is that our fathers are not capable of showing or teaching that which must be known for us to be other than a serf, a peon, kept in our gilded cages by crafty overlords who are supposed to be our public servants.
It may be truthfully said that our educational system in this Nation has performed a superb role in educating our present generations to the maximum level of their acceptable ignorance.
Yet, and herein might lie the salvation of this Republic, in spite of the indolence, indifference, and lethargy, natural maladies of the human condition of which evil intent makes profitable use, there is still possessed by most an acceptable degree of common sense. But where could that attribute be put to our salvation?
As necessity might dictate, the imposition of the power and duty of Article V is, if nothing else, a civilized manner, preferable to the Militia or to Nullification, for a people who want to be free, to manage their government, fraught with danger and delay though it would be. But I would be remiss if I did not point out that there is another venue, and one the legal scholars have not mentioned. This is probably due to the fact that this process is currently known only in Georgia, though not widely enough; not that it might not be applicable in other states.
We are all aware of the abuses put to guns, knives, crowbars, and other instrumentalities used by criminals to take or deprive us of our property, sometimes by force.
But what most DON’T understand, including most lawyers, is that a law enacted by a state or the Federal legislature may also be the instrumentality by which our property is unlawfully deprived or taken from us. Likewise, the vast majority don’t understand that our liberties, i.e., speech, petition, hearing, bearing arms, our right to be justly compensated for our property being taken for public use, just to name a few, are also our PROPERTY (O.C.G.A. 16-1-3(13)). Any time a law unlawfully deprives us of these pieces of property, or a government official unlawfully takes these while acting under such a law, both those who enacted the law and the agent enforcing it have committed a crime under Georgia’s Constitution and Statutes (O.C.G.A. 16-8-2).
Purely as a matter of common sense, you, as a private citizen, know when a law is bad and its enforcement wrong whether you or your neighbor is the victim; but who, you may ask, is clothed with the Authority of Law to hear your or your neighbor’s plea that a law is unjustly taking or depriving you of your property and is also vested with a sufficiency of power under the law to redress this grievance. In Georgia there is a two word answer.
In Georgia, there is a much more immediate, impressionable, and stringent a method for protecting ourselves from the abuses of corrupt politicians making bad laws which serve no other purpose than to take our property and give us no just compensation, either in a thing or to a service, in return.
That method is our right to appeal to a grand jury, or in the case of a corrupt law from Congress or even our state legislature, an appeal to all 159 grand juries in this State.
But how does Georgia Grand Juries have authority to subpoena federal authorities and possibly sent them to trial, and possibly jail, for such corrupt acts? You need to read and UNDERSTAND Ga. Const., Art I, sec. I, par. XI and XII. In Georgia, ONLY Grand Juries and Criminal Trial Juries, in criminal cases, are clothed with a power not acknowledged in or permitted to any other officer in any other branch of Government by our Constitution; THEY JUDGE THE LAW in addition to the facts. Our Constitution makes plain that the Governor, all Legislators, all Judges including those of the Supreme Court and all those on the Federal Bench whether their courts are in Georgia or in Washington, DC, all District Attorneys, all Sheriffs and their deputies shall answer before a Grand Jury in this State upon proper cause being shown. NONE are immune from the Inquisitorial Power of a Georgia Grand Jury … NO, NOT ONE!
The reasoning is quite simple; the unlawful deprivation of the property right of all the citizens of this state is a crime contemplated in the broad and all inclusive language of Georgia’s Theft statute (O.C.G.A. 16-8-2). Under the terms of that criminal statute the only thing that has to be proved is that there has been a deprivation or taking of your property by another, or others, who had the intent to deprive you of your property and their act was unlawful.
Next, consistent with your right to petition, speak, and be heard, you also have a right to prosecute your “own cause” in any court of this state, with or without the assistance of counsel. Therefore, You have a RIGHT to petition a Grand Jury (O.C.G.A. 1-2-6(6)), to speak verbally and through your evidence (to be a witness under O.C.G.A. 1-2-6(7)), and you have a RIGHT to be heard by them, and they have a duty to hear; and, in their presence, it is the sole and exclusive power of a Grand Jury in Georgia to “Judge the law”, not a district attorney and not a judge. Anyone, lawyer, judge, DA, or enforcement officer who obstructs your right to petition and be heard by a Grand Jury is a Thief, nothing else.
If the Congress or this State’s Legislature should pass a law, even if it is called a tax yet does not return to you a thing or service of just compensation, that law unlawfully violates the Fifth Amendment’s prohibition as to the taking of property. If you, a citizen of Georgia or any other state, is the victim of an unlawful taking by a law enacted by Congress, show your proof to your Grand Jury, for they have the power to bring all who voted for such a law, and any President or Governor who signed it into law, into their Court of Inquiry and hold them to answer under penalty of contempt and possible presentment to trial for their very liberty.
The ONLY power recognized by any of our constitutions greater than this is the Second Amendment. Which should a civilized society prefer to force politicians to comply with our Constitutions?
Perhaps the time now is that we show the world just how powerful the people of Georgia truly are by asking our Grand Juries to lead us to a time when the Constitution is enforced upon those who would subvert it and turn it to an instrument of plunder. Yes, that includes Governors and Legislators who have violated their oaths of office and stained the skirts of their integrity in exchange for a Federal Dollar.
827th Militia District, Georgia
© 2014 Paul L. Nally – All Rights Reserved
PAUL L. NALLY, a 69 year old life-long citizen of Bartow County, in the Pine Log community of Northwest Georgia, who has served in the US military, as a county deputy, Chief of Police for the City of White, Georgia, and as Judge of the 827th Militia District. Currently retired from the Georgia Department of Transportation.