History Does not Agree with the Article V Apologists

Page 1 of the Articles of Confederation

Page 1 of the Articles of Confederation

(Against an Article V Convention, part 3)

Phil Jensen


As I mentioned in my last piece on this subject, Mark Levin and his associates have hinged all their ideas on acceptance of an Article V Convention, which is completely undermined if the Constitution is invalid.  Therefore, they must discredit the foundational idea that the States were ever sovereign, free, or independent.  The big problem is, American history doesn’t agree with them.

It is rational to demand more proof than just my saying so to believe that the 1787 Convention was illegal.  It is well known, and not even disputed by the Article V Apologists (AVA’s) that the delegates were to convene in Annapolis in 1786, but with 12 delegates and only 5 states present, the meeting was adjourned before others could arrive, and a resolution was made to have the States gather in Philadelphia the following year—not for the purpose of writing a new Constitution, but for the express purpose of amending the Articles of Confederation (AOC) and making them suitable to the exigencies of the Union.

Nationalists of all stripes prefer to ignore the fact that there is no mention of a new Constitution, or anything of the sort in the States’ instructions to their delegates.  If even ONE SINGLE state (such as Rhode Island) did not revise their instructions, the convention was still acting outside its authority.  To get their way and distract from the unanimity requirement, Nationalists key on the word, “exigencies,” and the false alarms raised by Hamilton and Madison that foreign invasion was imminent as justification for a supra-national convention which was superior to the Constitution.  Although the Continental Congress had met in 1774 and 1775, there was no Constitution then, and so violating the 1781 AOC was a concept both novel and unprecedented.  The Nationalists knew that the best chance for restoring a monarchical government was the continuance of the war, and with its end in 1783, their chances for frightening the States into accepting the yoke of a king were quickly diminishing.  Thankfully, the Anti-Federalists were not as interested in seeing our government usurped.  While there are many who eloquently make this argument from Patrick Henry to Luther Martin, it is “Sydney” (New York Judge Robert Yates) who best drives this point home in 1788:

Ted Cruz 2016


…I beg here to observe that the whole history of this spurious constitution for the government of the United States, from its origin to the present day … are a series of violations of these paragraphs, and of the 13th Article of the Confederation.

It was a violation of the State Constitution for the senate and assembly, on the 19th of February, 1787, to instruct their members to move to Congress for an act recommending a convention: and it was also a violation of the 13th article of the confederation for Congress, on the 21st day of February, to recommend a convention to the several legislatures.  It was a further violation of the constitution of this State, by the senate and assembly, on the 27th day of March, to join and to appoint delegates to meet in convention, and it being done in that hasty, if not surreptitious manner, by joint resolutions, when acts of the least consequence, even for the yoking of hogs, require to be passed under the formalities of a law, makes it more glaringly so.

It was an outrageous violation in the convention on the 17th of September, 1787, to attempt a consolidation of the union, and utterly destroy the Confederation and the sovereignty of particular states, when their powers were restricted “to the sole and express purpose of revising and amending the Confederation.” 

It was again an infringement on the 13th article of the Confederation, for Congress, on the 28th of September, not to arrest and prevent its being transmitted to the several legislatures; nor was the legislature of this state less culpable, in the beginning of February, 1788, who, in the course of three hours, took up and concluded the measure of calling a convention without apprising their constituents of the danger

For those loyal to their Constitution, ALL AMENDMENTS required the unanimous vote of all 13 States as represented in the Congress (not a Constitutional Convention) and those amendments also had to be confirmed by all 13 State legislatures (not ratifying conventions.)  Furthermore, the AOC conclude in part by stating, “…the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.”

Such clear words in the Constitution, when pointed out to Patriotic Americans, should be enough to discourage any from taking a course which would put all future actions in legal jeopardy.  But if Article XIII was not enough to dissuade Alexander Hamilton, James Madison, and other Nationalists, it will never by itself dissuade Mark Levin, nor the other AVA’s working with  him.  Therefore, I will pursue in my next segment further proof that an Article V Convention is as sure to doom us, as the 1787 Constitution was sure to annihilate the States and make the liberties of the People easy prey for the ferocious appetite of the advocates of big government.

Learn more about your Constitution with Robert Broadus and the “Institute on the Constitution” and receive your free gift.

Woodrow Wilcox


Part 1: An Article V Convention will Become the ‘Convention for Social Justice’
Part 2: Picture Me Rollin’
Part 3: History Does Not Agree With the Article V Apologists

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Robert Broadus (aka Brutus) is a writer and course instructor for Institute on the Constitution, an educational outreach that presents the Founders’ American View of Law and Government. Broadus is a graduate of the U.S. Naval Academy, and as Navy Veteran he is not a Republican or a Democrat — he is an Anti-Federalist. Broadus hosted the East-Coast Anti-Federalist radio show on Liberty Works Radio, and was a candidate for the U.S. Senate and the House of Representatives from the state of Maryland. Robert has contributed to Fox News, AOL News, The New York Times, CBS, Rush Limbaugh Show, Washington Times, and more
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  • Jim Delaney

    The Constitution was ratified without Rhode Island’s vote. And only after the 10 amendments demanded by many of the States were adopted did Rhode Island grudgingly ratify and become part of the union created by the Constitution. Up until that point, Rhode Island was a completely independent sovereign State.

    As for the illegality of the “constitutional convention” which overstepped its initial delegated authority, the States, by their silence, did, in fact, consent to exploring a makeover of the Articles. of Confederation. Any who did not agree with a makeover could have withdrawn their delegates and remained entirely unaffected by the makeover of the confederation. They did not. If anything, this underscored the authority of the States in this makeover process and did not in any way diminish their sovereignty.

    I guess I’m a little confused as to this writer’s intent.

  • Dawn D

    I think the “Right” has finally come to a fork in their ‘political direction finder’ road. On the one hand you have a factional group saying it is time for a Constitutional Convention to occur, and on the other hand you have another faction declaring – in effect – that the Constitution was crafted, enjoined and effectuated illegally. Quite the dichotomy.

    I do agree with this author about the dire possibilities of a Constitutional Convention, should there ever be one called to order (remote as the probability remains). Yet disagree entirely about his premise for the illegitimate existence of our Constitution.

    • The faction claiming the Constitution was effectuated illegally is a pretty small faction, and over 200 years later, I don’t think the argument is going to get much traction. Their argument is not without foundation, as Broadus described, but there are also other facts about which I have been made aware (and have not had time yet to trace back to original sources yet) that indicate “Not really.”

      There are risks any time you add or subtract something from the Constitution. I’ve been on both sides of the question of a concon, and still haven’t firmly made up my mind. But Broadus’ concerns bring up some issues that we would be wise to consider, either way.