Conservative infighting over #ArticleV – The Swindling continues

This entry is part 8 of 9 in the series Conservative Infighting Over Article V

The same year that Black had posted an article demeaning #ArticleV in one respectable law journal, Natelson noted that there was another law professor who swindled people into believing that the convention route is not the way to go1:

Later the same year, William F. Swindler, a law professor at the College of William and Mary, published an article in the Georgetown Law Journal2. Like Black’s contribution, it was largely polemical and short on history and case law.

Swindler claimed that the Council of State Government’s proposed amendments were “alarmingly regressive” and would destroy the Constitution as we know it: “For it is clear,” he wrote, “that the effect of one or all of the proposals. . . would be to extinguish the very essence of federalism which distinguishes the Constitution from the Articles of Confederation.” Like Black, Swindler argued that Congress could and should control the convention and impose obstacles to the convention serving its constitutional purpose. Indeed, Swindler went even further, maintaining that because “only a federal agency (Congress, as provided by the Constitution) is competent to propose” amendments, the convention procedure should be disregarded as “no longer of any effect.”

The placement of the Black and Swindler diatribes in two of the nation’s top law journals can be explained only by the authors’ institutional affiliations3 and/or by the agenda harbored by the journals’ editors. That placement enabled them to reach a wide audience among the legal establishment.

 

From Swindler’s (fitting name for him and what he tried to do to #ArticleV) claims, it is clear that he had not read the second way that the Constitution can be amended under Article V of the Constitution which CLEARLY states:

on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments4

It seems Black, Swindler, and Patman back then, as well as Joanna “Publius Huldah” Scutari, the Eagle Forum, the John Birch Society, and others today think there is only one way to amend the Constitution – via the United States Congress – and that just is not the case. Many people are waking up and seeing that the Constitution offers a way for the STATES to amend the Constitution if two thirds (which currently stands at 34) of the state legislatures apply for a Convention for Proposing Amendments. However, even though the state legislatures can apply for a Convention, the amendments coming from the amdnements convention are not officially a part of the Constitution unless three-fourths (which currently stands at 38) of either the state legislatures or state conventions ratify them.

What Black and Swindler did not know at the time is that their false claims about #ArticleV led into a snowball of effects. In the next entry I will speak how a Chief Justice of the Supreme Court mimicked them about how a convention could destroy the Constitution, and also how a senator from a famous family also led the charge to block any conventions to amend the Constitution under #ArticleV.


1 Robert G. Natelson “The Liberal Establishment’s Disinformation Campaign Against Article V — and How It Misled Conservatives” pp 7-8 (found at http://constitution.i2i.org/files/2015/03/Campaign-v.-Article-V.pdf)

2 William F. Swindler, “The Current Challenge to Federalism: The Confederating Proposals, 52 Geo. L. J. 1 (1963) (found at http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2638&context=facpubs)

3 The overwhelming majority of law reviews are student-edited. Because students are often unable to judge the quality of articles submitted to them, the relative prestige of the author’s academic institution is influential in the decision of whether to accept a submission. This is an open secret among law professors and supported by empirical research. Jonathan Gingerich, A Call for Blind Review: Student Edited Law Reviews and Bias, 59 J. Legal Educ. 269 (2009).

4 Article V of the Constitution, taken from the National Archives site at http://www.archives.gov/

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